Gonzalez v. State

• Decision Date: 31 December 2015
• Docket Number: No. 64249.,64249.
• Citation: 366 P.3d 680
• Parties: Ernesto Manuel GONZALEZ, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

366 P.3d 680

Ernesto Manuel GONZALEZ, Appellant,

v.The STATE of Nevada, Respondent.

No. 64249.

Supreme Court of Nevada.

Dec. 31, 2015.

Rehearing Denied March 25, 2016.

Richard F. Cornell, Reno, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Before the Court En Banc.

OPINION

By the Court, SAITTA, J.:

In the instant case, appellant challenges his conviction arguing that the district court abused its discretion when it refused to answer two questions from the jury during deliberations, when it gave a defense-of-others jury instruction that was unduly confusing and not supported by the evidence, when it refused to give his proffered accomplice-distrust jury instruction, and when it refused to bifurcate the gang-enhancement portion of the trial from the guilt phase. We agree with appellant in several respects and hold that in situations where a jury's question during deliberations suggests confusion or lack of understanding of a significant element of the applicable law, the judge has a duty to give additional instructions on the law to adequately clarify the jury's doubt or confusion. We also hold that, to provide the defendant with a fair trial, the guilt phase of trial must be bifurcated from the gang-enhancement phase. Because the district court failed to answer the jury's question regarding a significant element of conspiracy, refused to bifurcate the guilt and gang-enhancement portions of Gonzalez's trial, and committed other errors, we hold that the cumulative effect of these errors deprived appellant of his right to a fair trial. We therefore reverse Gonzalez's judgment of conviction and remand for a new trial.

FACTUAL AND PROCEDURAL HISTORY

In 2011, a brawl between members of two motorcycle gangs, the Vagos and the Hell's Angels, occurred in a Sparks casino. The fight was instigated by Stuart Rudnick, a member of the Vagos. During the fight, another member of the Vagos, appellant Ernesto Manuel Gonzalez, shot and killed Jethro Pettigrew, a member of the Hell's Angels.

Rudnick was initially charged as a coconspirator, but he pleaded guilty to reduced charges and ultimately testified against Gonzalez. Although Rudnick pleaded guilty prior to Gonzalez's trial, he was not sentenced until after he testified against Gonzalez. At trial, Rudnick testified that he and Gonzalez had a meeting prior to the fight with the president of the international chapter of the Vagos. Rudnick further testified that the president put out a "green light" on Pettigrew, meaning that Pettigrew was to be killed, and that Gonzalez said he would kill Pettigrew. No other witnesses testified to the existence of this conspiracy to kill Pettigrew.

The jury found Gonzalez guilty on all counts. The district court merged the convictions of challenge to fight resulting in death with the use of a deadly weapon and second-degree murder with the conviction of first-degree murder with the use of a deadly weapon. Although the jury found the alleged deadly-weapon and gang enhancements, the district court only imposed sentences for the weapons enhancement. See NRS 193.169(1) (providing that additional enhancement sentence may be imposed for only one enhancement "even if the person's conduct satisfies the requirements for imposing an additional term of imprisonment pursuant to another one or more" of the enhancement statutes).

DISCUSSION

On appeal, Gonzalez argues, among other claims, that the district court abused its discretion: (1) when it refused to answer two questions from the jury during deliberations, (2) when it gave a defense-of-others jury instruction that was unduly confusing and not supported by the evidence, (3) when it refused to give his proffered accomplice-distrust jury instruction, and (4) when it refused to bifurcate the gang-enhancement portion of the trial from the guilt phase.

The district court's refusal to answer jury inquiries during deliberations

This court reviews the refusal to respond to jury inquiries for an abuse of discretion. Tellis v. State, 84 Nev. 587, 591, 445 P.2d 938, 941 (1968).

During jury deliberations, a juror sent two questions to the district court judge. The first question stated:

Legal question:

Looking at Instruction no. 17: If a person has no knowledge of a conspiracy but their actions contribute to someone [else's] plan, are they guilty of conspiracy?

The second question stated:

People in here are wondering if a person can only be guilty of 2nd degree murder or 1st. Can it be both?

Both Gonzalez's attorney and the State agreed that the answers to both questions were no. The district court refused to answer the first question, instead stating:

It is improper for the Court to give you additional instruction on how to interpret Instruction no. 17. You must consider all the instructions in light of all the other instructions.

The district court also refused to answer the second question, stating:

You must reach a decision on each count separate and apart from each other count.

We create an exception to the rule in Tellis in situations where the jury's question suggests confusion or lack of understanding of a significant element of the applicable law

The current law regarding a judge's duty to answer a jury's questions was promulgated in Tellis:

The trial judge has wide discretion in the manner and extent he answers a jury's questions during deliberation. If he is of the opinion the instructions already given are adequate, correctly state the law and fully advise the jury on the procedures they are to follow in their deliberation, his refusal to answer a question already answered in the instructions is not error.

84 Nev. at 591, 445 P.2d at 941.

Here, because Gonzalez does not allege that the given jury instructions were inadequate or incorrectly stated the law, under our decision in Tellis, the district court did not abuse its discretion by refusing to answer the jury's questions. However, we are of the opinion that Tellis does not go far enough in describing a judge's duty to answer questions from the jury during deliberations.

We do not wish to completely overturn Tellis. However, we believe that there should be an exception to the bright-line rule in Tellis regarding situations where the jury's question suggests confusion or lack of understanding of a significant element of the applicable law. See United States v. Southwell, 432 F.3d 1050, 1053 (9th Cir.2005) ("Because it is not always possible, when instructing the jury, to anticipate every question that might arise during deliberations, the district court has the responsibility to eliminate confusion when a jury asks for clarification of a particular issue." (internal quotations omitted)); see also Harrington v. Beauchamp Enters., 158 Ariz. 118, 761 P.2d 1022, 1025 (1988) (holding that when jurors "express confusion or lack of understanding of a significant element of the applicable law, it is the court's duty to give additional instructions on the law to adequately clarify the jury's doubt or confusion"); State v. Juan, 148 N.M. 747, 242 P.3d 314, 320 (2010) ("[W]hen a jury requests clarification regarding the legal principles governing a case, the trial court has a duty to respond promptly and completely to the jury's inquiry."). In such situations, the court has a duty to give additional instructions on the law to adequately clarify the jury's doubt or confusion. See Southwell, 432 F.3d at 1053 ; Harrington, 761 P.2d at 1025 ; Juan, 242 P.3d at 320. This is true even when the jury is initially given correct instructions. People v. Brouder, 168 Ill.App.3d 938, 119 Ill.Dec. 632, 523 N.E.2d 100, 105 (1988) ; see also Harrington, 761 P.2d at 1025 (holding that the court has a duty to respond to the jury even when "the original instructions were complete and clear").

Here, the jury's question on conspiracy went to the very heart of that offense. Conspiracy is a knowing agreement to act in furtherance of an unlawful act. Bolden v. State, 121 Nev. 908, 912, 124 P.3d 191, 194 (2005). When a defendant does not know that he or she is acting in furtherance of an unlawful act, there can be no conspiracy. Because the jury's first question suggested confusion or a lack of understanding of this central element of the crime of conspiracy, we hold that the district court abused its discretion when it refused to answer the question. However, because the jury's second question did not suggest confusion or the lack of understanding of a significant element of first- or second-degree murder, the district court did not abuse its discretion when it refused to answer that question.

The defense-of-others jury instruction

Whether a jury instruction accurately states the law is reviewed de novo. Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 339 (2009). When the instruction concerns a defendant's right to self-defense, the issue is of constitutional magnitude. See United States v. Sayetsitty, 107 F.3d 1405, 1414 (9th Cir.1997) (stating that "a defendant has a constitutional right to have the jury consider defenses [that] negate [criminal liability]"); State v. Walden, 131 Wash.2d 469, 932 P.2d 1237, 1239 (1997) (indicating that an erroneous instruction on self-defense is an error of constitutional magnitude); see also Harkins v. State, 122 Nev. 974, 989–90, 143 P.3d 706, 716 (2006) (although not identifying the error as one of constitutional magnitude, reviewing whether an erroneous self-defense jury instruction was harmless beyond a reasonable doubt, which is a review that is performed for constitutional errors). However, if the defendant did not object to an instruction, the instruction is reviewed for plain error. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).

The defense-of-others jury instruction improperly contained an instruction on self-defense that was not supported by the record

The trial court has the duty to instruct on general

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