Jackson v. State

• Decision Date: 06 December 2012
• Docket Number: Nos. 53632,55086.,s. 53632
• Citation: 291 P.3d 1274,128 Nev. Adv. Op. 55
• Parties: Adrian JACKSON, Appellant, v. The STATE of Nevada, Respondent. Steve Garcia, Appellant, v. The State of Nevada, Respondent.
• Court: Nevada Supreme Court

291 P.3d 1274

128 Nev. Adv. Op. 55

Adrian JACKSON, Appellant,

v.The STATE of Nevada, Respondent.

Steve Garcia, Appellant,

v.The State of Nevada, Respondent.

Nos. 53632, 55086.

Supreme Court of Nevada.

Dec. 6, 2012.

Philip J. Kohn, Public Defender, and P. David Westbrook, Deputy Public Defender, Clark County, for Appellant Jackson.

Karla K. Butko, Verdi, for Appellant Garcia.

Catherine Cortez Masto, Attorney General, Carson City; Steven Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Nancy A. Becker, Deputy District Attorney, Clark County, for Respondent in Docket No. 53632.

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent in Docket No. 55086.

Before the Court En Banc.

OPINION

By the Court, PICKERING, J.:

A single act can violate more than one criminal statute. When it does, the question arises whether the defendant can, in a single trial, be prosecuted and punished cumulatively for that act. These appeals present specific applications of that question: When the elements of both crimes are met, can a defendant who shoots and hits but fails to kill his victim be convicted of and punished for both attempted murder and battery? If he shoots and misses, can he be convicted of and punished for both attempted murder and assault?

In general, the answer to the single act/multiple punishment question depends on the statutes violated, specifically, whether they proscribe the same offense and, if so, whether they nonetheless authorize cumulative punishment. The statutes' elements define how many distinct crimes have been created. If each statute contains an element that the other does not, then the offenses are different. Battery, assault, and attempted murder each includes elements the others do not. Furthermore, Nevada's attempt statute authorizes cumulative punishment in the attempted murder/assaultive crime context. We therefore affirm the judgments of conviction in both appeals.

I.Jackson v. State (Docket No. 53632)

The facts relevant to Adrian Jackson's appeal are these: James Duffy was working the night shift at Foot Hills Tavern when Jackson, then just 17 years old, entered. After 20 minutes of conversation, Jackson showed Duffy a gun and said he intended to rob the bar. He then coerced Duffy into helping him try to disable the bar's security cameras.

During the robbery, Jackson forced Duffy into the restroom, ordered him into a submissive position, and asked him if he had ever taken a bullet. When Duffy said no, Jackson asked him whether he would rather be shot in the leg, the stomach, or the head. Duffy chose to be shot in the leg, which Jackson proceeded to do.

Next, Jackson asked Duffy whether he would rather be shot in the chest or the head. Duffy responded that he would rather be shot in the chest. Jackson told Duffy to lift up his head and close his eyes. Before Jackson fired, Duffy got to his feet and, despite his injured leg, grabbed the gun barrel. Jackson shot but the bullet discharged over Duffy's head. The two men struggled, Jackson fled, and Duffy called the police.

As part of their investigation, police officers contacted Mark Rodney, who managed the bar's surveillance system. Rodney advised that the security cameras had survived Jackson's bungled attempt to disable them, and offered to provide complete video for the evening. The police declined and instead asked Rodney to prepare a composite video, including only frames that showed Duffy or Jackson. The composite video omitted 12 to 15 hours of recordings from the bar's several security cameras.

An anonymous tip led to Jackson's arrest. He was charged with seven felonies, including attempted murder, assault, and battery, all with a deadly weapon; robbery, kidnapping, burglary, and discharge of a firearm in a building. When Jackson learned at trial about the discarded video, he moved for a mistrial, which the district court denied. The jury convicted Jackson on all counts. The district court sentenced Jackson to multiple consecutive sentences of life imprisonment and specific terms of years on the attempted murder, robbery, and kidnapping counts, with consecutive additional terms for the weapon enhancements, and lesser concurrent sentences for his assault, battery, and other convictions.

On appeal, Jackson argues that his convictions for assault and battery, on top of his attempted murder conviction, violate double jeopardy and are redundant to the attempted murder conviction and to each other. Jackson also argues that the State's failure to preserve the complete video footage offends due process, and that his sentence constitutes cruel and unusual punishment.¹

Garcia v. State (Docket No. 55086)

Appellant Steve Garcia and several friends got into a street fight with brothers Isaac, Ricardo, and Jose Guadalupe “Lupe” Cordero. Garcia drew a gun and fired separate shots at Isaac and Lupe, hitting both. When Garcia and his friends fled by car, Ricardo gave chase. Garcia turned and again fired the gun, hitting Ricardo in the foot. Lupe died, and Isaac suffered severe injuries.

In a single trial, Garcia was tried for and convicted of Lupe's murder, two counts of attempted murder with the use of a deadly weapon for shooting Isaac and Ricardo, battery with the use of a deadly weapon causing substantial bodily harm (Isaac), and battery with the use of a deadly weapon (Ricardo). The court sentenced Garcia to life in prison with the possibility of parole for Lupe's murder, to consecutive sentences of 192 months in prison for the two attempted murder convictions, and to lesser concurrent sentences for the aggravated battery convictions.

Garcia raises myriad issues on appeal, only one of which warrants extended discussion: that his convictions for attempted murder and aggravated battery violate double jeopardy and are impermissibly redundant.²

II.

Whether conduct that violates more than one criminal statute can produce multiple convictions in a single trial is essentially a question of statutory construction, albeit statutory construction with a constitutional overlay. See United States v. McLaughlin, 164 F.3d 1, 7–8 (D.C.Cir.1998). Our review is de novo as to both the statutory construction, Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004) (whether leaving three victims at the scene of an accident constituted one offense or three presents a statutory construction question that receives de novo review), and constitutional issues involved, Davidson v. State, 124 Nev. 892, 896, 192 P.3d 1185, 1189 (2008) (“A claim that a conviction violates the Double Jeopardy Clause generally is subject to de novo review on appeal.”). See Ebeling v. State, 120 Nev. 401, 404, 91 P.3d 599, 601 (2004) (reviewing de novo a redundancy challenge to multiple convictions for an assertedly single offense).

A.

1.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitutionprovides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This protection applies to Nevada citizens through the Fourteenth Amendment to the United States Constitution, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and is additionally guaranteed by the Nevada Constitution, Nev. Const. art. 1, § 8. The Double Jeopardy Clause protects against three abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). It is the third protection that is at issue in these appeals.

“In accord with principles rooted in common law and constitutional jurisprudence,” the Supreme Court “presume[s] that ‘where two statutory provisions proscribe the “same offen[c]e,’ ” a legislature does not intend to impose two punishments for that offense.” Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (quoting Whalen v. United States, 445 U.S. 684, 691–92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)) (interpreting federal legislation). To determine whether two statutes penalize the “same offence,” both the Supreme Court and this court look to Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) (“This Court has consistently relied on the test of statutory construction stated in Blockburger [ ] to determine whether Congress intended the same conduct to be punishable under two criminal provisions.”); Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 1127 (2006) (“Nevada utilizes the Blockburger test to determine whether separate offenses exist for double jeopardy purposes.”). The Blockburger test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); see Barton v. State, 117 Nev. 686, 692, 30 P.3d 1103, 1107 (2001) (“under Blockburger, if the elements of one offense are entirely included within the elements of a second offense, the first offense is a lesser included offense and the Double Jeopardy Clause prohibits a conviction for both offenses”), overruled on other grounds by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006).

As Rutledge's reference to “presume[d]” legislative intent suggests, the Blockburger test does not, by itself, decide whether multiple punishments are permissible. It determines whether the statutes violated penalize the same or several distinct offenses, and if so,...