Cote v. State

• Docket Number: 85120
• Decision Date: 27 December 2023
• Parties: ANDREW MARTIN COTE, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

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ANDREW MARTIN COTE, Appellant,
v.
THE STATE OF NEVADA, Respondent.

No. 85120

Supreme Court of Nevada

December 27, 2023

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon of a victim 60 years of age or older and first-degree murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Appellant Andrew Cote was charged after he reported to the police that he fatally shot his seventy-year-old neighbor Mildred Olivia and his neighbor's friend Timothy Hanson. Cote's backyard abutted Olivia's. On the night of the shooting at approximately 10 p.m., Hanson was in Olivia's backyard while Cote's then-nine-year-old daughter was in Cote's backyard. Hanson yelled over the fence at Cote's daughter to "go get your daddy. Get your daddy out here." Cote also heard Hanson say, "Come on out, pastor," and "Let's see how tough you is." Cote retrieved a shotgun and went into his backyard. Olivia joined Hanson in her backyard. Cote testified that he grabbed his gun to encourage them to stand down. The last statement Hanson made to Cote was "you got a gun, huh?"

Cote testified that he saw Hanson coming over the wall between the properties. From his backyard, Cote shot Hanson in the head. Cote then shot Olivia in the head. When Hanson began to move, Cote shot

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Hanson again in the head, assuming he was reaching for a gun in his pocket. Cote reported the shooting to the police minutes later.

At trial, Cote argued that he acted in self-defense or committed the lesser offense of voluntary manslaughter. The jury returned a guilty verdict for both counts of first-degree murder.

Sufficient evidence supported Cote's murder convictions

Cote argues that the State presented insufficient evidence of first-degree murder because it did not prove a lack of self-defense, malice aforethought, or premeditation beyond a reasonable doubt. He argues the jury did not adequately consider facts related to his self-defense claim that affected what a reasonable person would have perceived; namely, the years-long torment and threats from Olivia, his child being yelled at, that it was dark, and Hanson coming over the wall. He argues there was no malice aforethought because his intent was merely reactive and defensive. And he contends there was no premeditation because his split-second reaction to shoot upon seeing Hanson climbing the wall was made without time to engage in rational deliberation.^[1]

When considering a challenge to the sufficiency of the evidence supporting a criminal conviction, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998). A person who kills in self-defense is justified if (1) he was

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"confronted by the appearance of imminent danger" that caused "an honest belief and fear" of death or great bodily injury; (2) he acted solely on these appearances, fear, and beliefs; and (3) a reasonable person in a similar situation would have believed that he or she would have been in similar danger. Runion v. State, 116 Nev. 1041, 1051-52, 13 P.3d 52, 59 (2000). Malice aforethought is "the intentional doing of a wrongful act without legal cause or excuse or . . . adequate provocation." Crawford v. State, 121 Nev. 744, 752, 121 P.3d 582, 587 (2005) (internal quotation marks and emphasis omitted). "Malice aforethought may be inferred from the intentional use of a deadly weapon in a deadly and dangerous manner." Moser v. State, 91 Nev. 809, 812, 544 P.2d 424, 426 (1975), modified on other grounds by Collman v. State, 116 Nev. 687, 717 n.13, 7 P.3d 426, 445 n.13 (2000). Premeditation, as required for first-degree murder, "is a design, a determination to kill, distinctly formed in the mind by the time of the killing." Valdez v. State, 124 Nev. 1172, 1196, 196 P.3d 465, 481 (2008) (quotation marks omitted). Murder can be deemed deliberate and premeditated "although the intent to commit such a homicide is formed at the very moment the fatal shot is fired." Payne v. State, 81 Nev. 503, 509, 406 P.2d 922, 926 (1965) (internal quotation marks and alteration marks omitted). It is for the jury to determine the weight and credibility given to conflicting evidence. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).

The facts that Cote contends the jury did not account for related to his self-defense claim were all raised at trial. Specifically, Cote testified about his years-long tumultuous relationship with Olivia. He testified that she threatened to shoot his wife and made other comments that he interpreted as threats. He explained that he obtained protective and stay-away orders against Olivia and began using video to document her actions.

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Cote also testified that before the shooting he had seen Hanson visiting Olivia's house, and Hanson had yelled from outside at Cote's residence on one prior occasion. On the day of the shooting, Cote and Olivia had a dispute over Olivia spraying Cote and his daughter with water, which Cote claimed violated his protective order. Police responded to the scene but did not make a report or take any other action.

Cote also testified about his perception of events leading up to the shooting, including the utter horror he experienced when he realized his young daughter was outside being yelled at by Hanson, that he went outside to protect his daughter and to make Hanson and Olivia stand down, his feelings of extreme fear that he was being lured outside, his uncertainty whether Hanson or Olivia had weapons, and his belief that his perceptions that night were affected by Olivia's earlier threats. Further, Cote testified about the circumstances of the shooting, including that he heard yelling from inside his house, grabbed his shotgun, and proceeded outside. He explained that he saw Hanson coming over the wall between the properties, there was not much light, and he could not see Hanson's hands. Cote testified that he then saw Olivia "coming at" him and that he could not see her hands to confirm whether she had a weapon.

The State presented evidence including video of the shooting that was recorded by Cote's and Olivia's surveillance systems and of Cote's police interview. In his police interview, Cote made statements that he had never seen Olivia or Hanson with firearms before and about his intentions for going outside that night. Cote stated, "I didn't intend on going out there to really talk with [Hanson], you know, to have a reasonable conversation." As to Olivia, Cote testified that he "didn't come out planning on killing her, but [he] knew that when [he] took the shot, that the shot would end her

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life." Jurors watched video evidence of the shootings that captured the short time between Cote exiting his house and shooting Hanson and Olivia. The jurors also visited the crime scene themselves one afternoon during trial. In addition, a forensic pathologist medical examiner testified that Olivia and Hanson had drugs in their systems at death but that their deaths were caused by shotgun wounds to the head and the manner of their deaths was homicide. Based on their wounds, the examiner concluded that Cote was approximately three feet from Hanson when he fired the first shot, less than three feet from Olivia when he fired the second shot, and between three and ten feet from Hanson when he fired the third shot.

During the trial, the jury weighed the conflicting evidence and rejected Cote's self-defense claim. Specifically, the jury heard that the danger Cote confronted was Hanson yelling at Cote's daughter for him to come outside, that Cote did not know whether Hanson or Olivia had weapons, and about past negative interactions Cote had with Olivia and Hanson. The evidence was sufficient for a rational juror to find that the danger that Cote confronted was not imminent, that Cote killed Olivia and Hanson based on factors other than fear or imminent danger, and that a reasonable person in a similar situation would not have believed they were in similar danger. Thus, the evidence was sufficient to support the jury's determination on self-defense. Additionally, the jury heard Cote's statements that he did not intend to have a reasonable conversation by going outside and that he knew he would kill Olivia if he shot her. The jury was also presented with evidence that Cote shot Hanson and Olivia in the head with a shotgun at close range. Thus, a rational trier of fact could have found Cote intentionally used the shotgun in a dangerous and deadly manner, without an excuse or adequate provocation. Accordingly, sufficient

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evidence supported the jury's determination for malice aforethought. Further, although Cote testified that he went outside with his gun to encourage Hanson and Olivia to stand down, a reasonable juror could have discredited this testimony in light of how quickly Cote fired the shots in the video and his other statements that he did not intend to have a conversation and knew taking the shot would kill. Taken together, the evidence of Cote exiting his house with his shotgun and soon after shooting both Hanson and Olivia in the head, combined with his statements about his thought processes, was sufficient for a jury to find that Cote had a determination or design to kill by the time of the killing. Thus, the evidence was sufficient to support the...