Brooks v. State
| Decision Date | 03 April 2008 |
| Docket Number | No. 46733.,46733. |
| Citation | 180 P.3d 657 |
| Parties | Jamon BROOKS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Philip J. Kohn, Public Defender, and Bita Khamsi and Sharon G. Dickinson, Deputy Public Defenders, Clark County, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Samuel G. Bateman and Nancy A. Becker, Deputy District Attorneys, Clark County, for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and DOUGLAS, JJ.
The primary issue in this appeal is whether the district court erred in refusing to instruct the jury what it was required to find to subject an unarmed offender to the deadly weapon enhancement in accordance with Anderson v. State.1 Although appellant Jamon Brooks' proposed deadly weapon enhancement instruction was a correct statement of the law, we take this opportunity to clarify the test used to determine when an unarmed offender is subject to the deadly weapon enhancement because the test in Anderson is based on the elements of constructive possession rather than "use" of a deadly weapon as provided in NRS 193.165. Specifically, we conclude that the proper focus is on the unarmed offender's knowledge of the use of the weapon brandished by another principal. Due to this and another instructional error in this case, we reverse Brooks' judgment of conviction and remand this matter to the district court for a new trial.
Around noon on November 14, 2003, Christianne Davis opened her garage door and drove in, leaving the door open because she expected her husband to arrive shortly. As she reached for her purse and exited her car, she heard a man's voice. When Davis turned around, she saw a man with a gun standing in her garage. The gunman demanded her purse, and Davis complied. The gunman ran toward a dark green Saturn blocking her driveway. Davis observed the Saturn's driver briefly and noticed that he had braids and that his "profile was different." The gunman jumped in the Saturn's passenger side, and the car sped away. Davis memorized the car's license plate number and called 911.
Police officers responding to Davis's 911 call obtained the address of the Saturn's registered owner and proceeded to that location. After the first police officer arrived, appellant Jamon Brooks appeared, driving the Saturn. Brooks told Las Vegas Metropolitan Police Department Officer Gordon McGhie that he had possession of the car all day and no one else had driven it. Brooks led Officer McGhie to a dumpster containing Davis's purse, which was missing $13 in cash.
Officer McGhie escorted Brooks to the Clark County Detention Center for booking and advised Brooks of his rights pursuant to Miranda.2 Brooks first denied any involvement in the robbery. Brooks eventually admitted that he was the driver of the getaway car, but he refused to name the gunman.
Shortly after Brooks' apprehension, Davis arrived, escorted by another officer, and identified Brooks as one of the offenders involved in the robbery. At trial, Davis identified Brooks as the driver of the getaway car.3
A jury found Brooks guilty of robbery with the use of a deadly weapon and conspiracy to commit robbery. Thereafter, the district court sentenced Brooks to serve two consecutive terms of 26 to 120 months in prison for robbery with the use of a deadly weapon and a consecutive term of 12 to 48 months for conspiracy to commit robbery. This appeal followed.
Brooks challenges the district court's refusal to give three jury instructions. A district court has broad discretion with respect to jury instructions, and absent an abuse of discretion or judicial error, this court will uphold a district court's decision regarding a jury instruction.4
Deadly weapon instruction
Brooks argues that the district court erroneously refused to give an instruction offered by the defense regarding the circumstances in which an unarmed offender is subject to a deadly weapon enhancement. We agree that the district court did not accurately instruct the jury regarding the facts that the State must prove to subject an unarmed aider and abettor to a deadly weapon enhancement.
Brooks offered an instruction based on language in our decisions in Anderson v. State5 and Jones v. State.6 Specifically, the proffered instruction provided that an unarmed offender is subject to the deadly weapon enhancement only if he had knowledge that the armed offender was armed and had the ability to exercise control over the weapon:
An unarmed defendant, charged as an aider and abettor or co-conspirator, cannot be held criminally responsible for use of a deadly weapon unless he has actual or constructive control over the deadly weapon. An unarmed defendant does not have constructive control over a weapon unless the State proves he had knowledge the armed offender was armed and he had the ability to exercise control over the firearm.
The State instead offered a more general instruction, also based on language in Anderson, that an unarmed offender's participation by aiding or abetting the armed offender in the unlawful use of the weapon subjects the unarmed offender to the deadly weapon enhancement:
The participation of a defendant not actually in possession of the weapon by aiding or abetting the actual user in the unlawful use of the weapon, makes a defendant equally subject to the added weapon enhancement available to the user who commits a crime through the use of a deadly weapon.
After hearing argument regarding the instructions, the district court accepted the State's instruction and rejected Brooks' proffered instruction. In doing so, the district court acknowledged that Brooks' proffered instruction used language from Anderson and Jones but expressed doubt that this court intended to require the State to prove that the unarmed offender had the ability to exercise control over the weapon. The district court reasoned that this requirement would lead to absurd results and that the crux of the issue is whether the unarmed offender had knowledge that a weapon would be used during the commission of the underlying offense. The district court thus instructed the jury as provided in the State's instruction set forth above and additionally instructed the jury that "[i]f more than one person commits a robbery, and one of them uses a deadly weapon in the commission of that robbery, each may be convicted of Robbery With Use of a Deadly Weapon, even though he did not personally himself use the weapon."
Despite the district court's concerns with Brooks' proffered instruction, the constructive possession test in Brooks' proffered instruction is an accurate statement of current Nevada law. It is based on Anderson, which this court has cited as defining "the requirements necessary to subject a defendant, who aides and abets the user of a deadly weapon, to an enhanced penalty."7 And this court has cited and applied Anderson's constructive possession test in four published decisions addressing an unarmed offender's liability for a sentence enhancement under NRS 193.165.8 Accordingly, the district court should have instructed the jury consistent with Nevada law. And given the evidence presented in this case, we cannot conclude that this error is harmless.9
While the proffered instruction correctly states current Nevada law, we take this opportunity, given the need for a new trial in this case, to address and clarify the circumstances in which an unarmed offender is subject to the deadly weapon enhancement. We conclude that the proper focus is on the unarmed offender's knowledge of the use of the weapon brandished by another principal.
Under NRS 193.165(1), any person who "uses" a deadly weapon in the commission of a crime is subject to a sentence enhancement. The statute expressly precludes imposition of the enhancement with respect to certain crimes,10 but as we recognized in Anderson, the statute does not clearly preclude imposition of the enhancement upon an unarmed offender "whose criminal acts were accomplished with the aid" of a deadly weapon held "by an accomplice and equally culpable principal."11 As a result, in Anderson this court accepted the general proposition, asserted by the State, that an unarmed offender's participation by aiding and abetting an armed offender "in the unlawful use of the weapon, makes the [unarmed offender] equally subject to the added penalty inflicted upon defendants who commit crimes through the use of deadly weapons."12 We reasoned that this general proposition was consistent with "the legislature's concern regarding the increased use of deadly weapons in the commission of crimes and its belief that such proscription will serve to deter persons from using weapons during the perpetration of certain crimes, in the hope that the possibility of death and injury will be reduced."13
In applying the general proposition accepted in Anderson, this court set forth scenarios in which the sentence enhancement could properly be imposed on an unarmed offender "whose criminal acts were accomplished with the aid of a firearm or other deadly weapon which was held . . . by an accomplice and equally culpable principal."14 Initially, this court explained that "[w]hen one of two robbers holds a victim at bay with a gun and the other relieves the victim of his properties, or . . . the unarmed assailant has knowledge of the use of the gun and by his actual presence participates in the robbery, the unarmed offender benefits from the use of the other robber's weapon, adopting derivatively its lethal potential."15 The focus of these scenarios is on whether the unarmed offender had knowledge of the use of the weapon and his criminal acts were facilitated by the use of the weapon. But this court's analysis did not end there. Instead, the Anderson court went on to explain that its conclusion was consistent with Nevada cases interpreting the term "possession."16 In particular,...
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