Guy v. State

• Decision Date: 03 September 1992
• Docket Number: No. 22269,22269
• Citation: 839 P.2d 578,108 Nev. 770
• Parties: Curtis GUY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 578

839 P.2d 578

108 Nev. 770

Curtis GUY, Appellant, v. The STATE of Nevada, Respondent.

No. 22269.

Supreme Court of Nevada.

Sept. 3, 1992.

Rehearing Denied Nov. 5, 1992.

Cherry & Bailus, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland and Daniel M. Seaton, Chief Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

MOWBRAY, Chief Justice:

FACTS

On the evening of April 7, 1990, appellant Curtis Guy and his friend Larry Pendleton were cruising the streets of North Las Vegas in an automobile, intending to purchase cocaine. Appellant was driving. He pulled the car into the parking lot of a convenience store, where they encountered Ceasor Evans, with whom they had not been previously acquainted. Evans told Pendleton and appellant that he knew where they could buy cocaine. Evans entered the automobile, and the three men set off to make the purchase. En route, Evans agreed to lead appellant and Pendleton to his source in return for a portion of the drugs they would purchase.

At Evans' direction, appellant drove to an undisclosed location where they purchased cocaine. As they drove away after making the purchase, Evans asked appellant to pull to the side of the road so that Evans could urinate. Appellant stopped the car and Evans alighted from the rear door. The cocaine remained in the car. As Evans stood outside the car, appellant attempted to drive off so as to deprive Evans of his portion of the cocaine. Evans, however, grabbed onto the rear door frame on the passenger side as the car sped away. As appellant continued driving with Evans clinging to the door frame, Pendleton turned and shot Evans three times in the abdomen with a .25 caliber handgun. Evans fell from the car, and Pendleton and appellant drove off. Evans died later that evening.

Some two weeks later, after a high-speed automobile chase through the streets of North Las Vegas, appellant was charged with murder with the use of a deadly weapon. ¹ The state gave notice of its intent to seek the death penalty.

At appellant's jury trial, the state's theory of the case was as follows: Appellant was guilty of first degree murder, either because he aided and abetted Pendleton in murdering Evans or because he and Pendleton conspired to commit a dangerous felony (robbery) and Evans was killed in the perpetration of this felony. At the conclusion of the trial, the jury found appellant guilty of first degree murder.

At the penalty phase of the trial, the state offered evidence of appellant's extensive criminal record, including crimes that Pendleton and appellant, acting together, had committed near in time to the murder of Evans. On April 6, 1990, the day before they murdered Evans, Pendleton and appellant burglarized the Las Vegas home of At the conclusion of the penalty phase, the jury found that four aggravating circumstances had been established beyond a reasonable doubt. The jury did not, however, find any mitigating circumstances. Appellant received a sentence of death.

Jennifer Courtney and, when she returned home during the course of the burglary, slashed her throat in an attempt to murder her. She survived and later testified at the penalty phase of appellant's trial. On April 11, 1990, Pendleton and appellant burglarized the home of Richard French while he lay asleep in his bed. Their search for valuables took Pendleton and appellant into the bedroom where French lay sleeping. Armed with handguns, appellant and Pendleton each shot French several times in the head. French miraculously survived, and he, too, testified at the penalty phase of appellant's trial.

DISCUSSION

I. GUILT PHASE

A. Felony murder

To convict appellant under a felony murder theory, the state had to prove that Evans was murdered while being robbed by Pendleton and appellant. Appellant contends that the evidence does not support the jury's finding that he and Pendleton robbed Evans. We disagree.

NRS 200.380(1) defines robbery as follows:

[T]he unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, in either of which cases the degree of force is immaterial. If used merely as a means of escape, it does not constitute robbery. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.

Appellant first argues Evans had no legal or proprietary interest in the drugs because the agreement that entitled him to a portion of the drugs was void and unenforceable. See Gaston v. Drake, 14 Nev. 175 (1879) (holding that a contract will not be enforced if it is against public policy or if it is for an illegal purpose). Appellant concludes that because Evans had no legal or proprietary interest in the drugs, there was no unlawful taking of personal property and therefore no robbery.

Appellant's argument fails. Admittedly, the agreement could not be enforced as a contract because of its illegal purpose; that does not mean, however, that the drugs could not be the subject of a robbery. The Supreme Court of California has declared that "by prohibiting possession of an item, the government does not license criminals to take it by force or stealth from other criminals." People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 397 n. 5, 668 P.2d 697, 704 n. 5 (1983). And in State v. Pokini, 45 Haw. 295, 367 P.2d 499 (1961), the Supreme Court of Hawaii specifically held that a thief could be robbed of stolen goods. In our view, these cases correctly characterize robbery as a crime against possession, and we believe that the deal Evans made with his killers gave him a possessory interest in the cocaine.

Appellant next argues that the evidence fails to demonstrate that he and Pendleton took the drugs either from Evans' person or in Evans' presence. According to appellant, the drugs remained in the automobile while Evans urinated just outside the open rear passenger-side door. Thus, concludes appellant, when he and Pendleton sped off in the automobile with the drugs (the "taking"), the drugs were taken neither from Evans' person nor in Evans' presence.

This argument lacks merit also. We have adopted a broad definition of "presence" with respect to robbery, stating that In light of Robertson, we conclude that the drugs were taken from Evans' presence. Under the deal to purchase the drugs, Evans possessed a portion of the drugs he purchased. Even while Evans urinated outside the car, the drugs were within his view. Moreover, Evans could have retained possession of his portion if Pendleton had not shot him.

" '[a] thing is in the presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.' " Robertson v. Sheriff, 93 Nev. 300, 302, 565 P.2d 647, 648 (1977) (quoting Commonwealth v. Homer, 235 Mass. 526, 127 N.E. 517, 520 (1920)). Applying this definition, we upheld a trial court's determination that money in a cash register was taken from a bartender's presence even though the bartender, who was in the bathroom when the robbers entered the bar, remained in the bathroom during the robbery out of fear. Id. 93 Nev. at 301-302, 565 P.2d at 647. We also agreed with the trial court's finding that the bartender was prevented by fear from retaining possession of the money in the register. Id. at 302, 565 P.2d at 648.

Finally, appellant argues that Pendleton's shooting of Evans was force "used merely as a means of escape." NRS 200.380(1). We disagree. The evidence indicates that the firearm was used to overcome Evans' resistance to the taking of the drugs; a use of force that satisfies the statutory definition of robbery. See NRS 200.380(1).

Where there is substantial evidence to support the jury's verdict, it will not be disturbed on appeal. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). In determining whether a jury verdict is supported by substantial evidence, the relevant inquiry is "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." Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)) (emphasis in original). We hold that substantial evidence supports the jury's finding that appellant and Pendleton robbed Evans.

B. Jury Instructions

Appellant assigns error to several of the jury instructions given at the guilt phase of his trial. In reviewing these assignments of error, our task is to ensure that the instructions correctly stated existing law. See Barron v. State, 105 Nev. 767, 783 P.2d 444 (1989).

Appellant first challenges Jury Instruction No. 5, which defined malice aforethought:

The condition of the mind described as malice aforethought may arise, not alone from anger, hatred, revenge or from particular ill will, spite or grudge toward the person killed, but may result from any unjustifiable or unlawful motive or purpose to injure another, which proceeds from a heart fatally bent on mischief or with reckless disregard of consequences and social duty....

According to appellant, this language does not accurately reflect the law of this state. In addition, appellant contends that this language, when read in conjunction with Jury Instruction No. 6 (defining express and implied malice), ² confused the jurors and...