Labastida v. State
| Decision Date | 11 October 1999 |
| Docket Number | No. 25685.,25685. |
| Citation | 115 Nev. 298,986 P.2d 443 |
| Parties | Kriseya J. LABASTIDA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Glynn Burroughs Cartledge, Reno, for Appellant.
Frankie Sue Del Papa, Atty.Gen., Carson City, Richard A. Gammick, Dist. Atty., and Terrence P. McCarthy, Deputy Dist. Atty., Washoe County, for Respondent.
Richard F. Cornell, Reno, for Amicus Curiae.
In Labastida v. State, 112 Nev. 1502, 931 P.2d 1334 (1996), this court affirmed appellant Kriseya J. Labastida's judgment of conviction of one count of second degree murder and one count of felony child neglect. Labastida was sentenced to serve a term of life in the Nevada State Prison with the possibility of parole for the murder and a consecutive term of twenty years for child neglect. Labastida has petitioned this court for rehearing.1 The state opposes the petition. As discussed below, we conclude that the prior majority opinion misapprehended material matters of fact and law and that rehearing is warranted. Accordingly, we grant rehearing and issue this opinion in the place of the previous decision in this appeal.2 See NRAP 40(c)(2).
The facts of this case are recounted in detail in the prior opinion. Labastida, 112 Nev. at 1504-09, 931 P.2d at 1335-39. Briefly, Michael Strawser, Labastida's husband, admitted to abusing their infant son and testified that Labastida did not know what he was doing. Labastida, Strawser and their infant child lived in a dark basement apartment. Although the infant bore marks of abuse in various stages of healing, Strawser admitted that he committed the most severe abuse, the abuse that caused death, in the last few days of the infant's life. To silence the baby, Strawser stuck his finger down his throat while he abused him. This ruptured the infant's throat, causing massive infection and ultimately death. Labastida called for an ambulance when she noticed that the infant had stopped breathing. It was so dark that when emergency personnel arrived, they had to take the infant to the kitchen to see. The infant's body displayed multiple bruises, bitemarks, broken ribs and other injuries.
Among other things, Labastida contends on rehearing that the prior majority opinion of this court: (1) misapprehended that sufficient evidence supported the jury's verdict; and (2) misconstrued the law permitting a conviction of second degree murder under NRS 200.070. Having revisited these issues, and for the reasons that follow, we now conclude that Labastida's conviction of second degree murder must be reversed.
In the prior opinion, a majority of this court held that the jury could have properly drawn "alternative inferences" from the evidence, and that based on these inferences, Labastida was properly convicted of second degree murder. Specifically, the majority observed:
First, the jury could have found Labastida guilty of child abuse and first-degree murder based upon the grounds that (1) she aided and abetted Strawser in the unlawful killing by observing or being manifestly aware that Strawser was willfully causing the infant to suffer dangerously severe and unjustifiable injury and pain as a result of abuse, and (2) by doing nothing to stop this abuse when she was responsible for the child and it was clearly possible for her to have taken preventive measures. See NRS 195.020; 200.030(1)(a); 200.508(1)(a). The jury could then have elected to give Labastida the benefit of leniency based upon a finding that her involvement was much less than that of Strawser. Under such circumstances, Labastida can hardly complain at having been the recipient of the jury's mercy.
Labastida, 112 Nev. at 1509-10, 931 P.2d at 1339 (citations omitted). We have re-examined this holding in light of relevant statutes, precedents of this court, the instructions given to the jury, and the evidence in the record. We now conclude that the above-quoted language erroneously proposed that the verdict of second degree murder could have resulted from a finding of first degree murder tempered by a desire for leniency. Further, we conclude that the evidence and the applicable law do not support a finding that Labastida directly committed acts or aided and abetted Strawser in the commission of acts so as to warrant her conviction of second degree murder. Cf. State v. Lindsey, 19 Nev. 47, 5 P. 822 (1885) ().
NRS 200.030(1)(a) provides in pertinent part that "[m]urder of the first degree is murder which is ... [p]erpetrated by means of ... torture or child abuse, or by any other kind of willful, deliberate and premeditated killing."3 "Child abuse" for the purposes of this subsection is separately defined in NRS 200.030(6)(a) as "physical injury of a nonaccidental nature to a child under the age of 18 years."
The jury instructions in this case accurately advised the jury of these provisions. In accordance with those instructions, there were three separate theories under which the jury could have considered Labastida's culpability for first degree murder, i.e., that with malice aforethought: (1) she directly committed or aided and abetted Strawser in committing a murder perpetrated by means of child abuse; (2) she directly committed or aided and abetted Strawser in committing a murder perpetrated by means of torture; and (3) she directly committed or aided and abetted Strawser in committing a willful, deliberate and premeditated murder.
More specifically, the jury was instructed pursuant to NRS 200.030 (1)(a) that "[m]urder of the first degree is murder which is perpetrated by means of torture or child abuse or by any other kind of willful, deliberate and premeditated killing." The instructions defined "murder" as "the unlawful killing of a human being, with malice aforethought, either express or implied." "[M]urder by child abuse" was defined as "an unlawful killing resulting from the infliction of physical injury of a nonaccidental nature to a child under the age of 18 years."
We have carefully reviewed all of the instructions, and it is clear that the jury was not instructed on the theory of first degree murder articulated in this court's prior majority opinion. The instructions simply cannot be fairly read to advise the jury that it could find Labastida guilty of first degree murder: if she aided and abetted Strawser in the unlawful killing "by observing or being manifestly aware" of the abuse Strawser was inflicting on the child, and "by doing nothing to stop this abuse when she was responsible for the child and it was clearly possible for her to take preventative measures." Therefore, the prior majority opinion's conclusion that the jury "could have found Labastida guilty of child abuse and first degree murder" on these grounds did not correctly reflect the instructions actually provided to the jury. Moreover, on rehearing, we are no longer persuaded that the grounds set forth in the prior majority opinion as justifying a finding of first degree murder correctly state the statutory elements of first degree murder. The suggestion that one who is responsible for a child may passively aid and abet first degree murder "by observing and being manifestly aware" of acts of child abuse, and "by doing nothing to stop this abuse" when it is possible to take preventative measures improperly merges concepts of "abuse" and "neglect," and is inconsistent with the elements of first degree murder defined in NRS 200.030(1)(a). As the prior majority opinion recognizes, the terms "abuse" and "neglect" have distinctive meanings and cannot be applied interchangeably.4 The use of the term "child abuse" and not "child neglect" in NRS 200.030(1)(a) evinces the legislature's intent that different meanings apply to the two terms and that a murder perpetrated by means of "child abuse," and not "child neglect," constitutes first degree murder. Thus, the definition of first degree murder set forth in the prior majority opinion improperly expands the statutory elements of first degree murder to include a murder perpetrated by means of child neglect. Accordingly, we are not willing to read NRS 200.030(1)(a) so as to define first degree murder to include a murder which is perpetrated by means of child neglect. There is no statutory basis for doing so.
We also note that the jury specifically found Labastida not guilty of the separate crime of child abuse causing substantial bodily harm in violation of NRS 200.508. This finding provides an additional reason to disavow the prior opinion's conclusion that the jury could have found Labastida guilty of first degree murder.
The jury was advised in Instruction No. 34:
NRS 200.508 provides: Any person who willfully causes a child who is less than eighteen years of age to suffer unjustifiable physical pain or suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical pain or mental suffering as a result of abuse or neglect is guilty of child abuse.5
Instruction No. 28 provided:
Every person concerned in the commission of a felony, whether he or she directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent; and every person who, directly or indirectly, counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony is a principal, and shall be proceeded against and punished as such.
Instruction No. 29 provided:
[T]he evidence must demonstrate that the Defendant knowingly and intentionally aided and abetted another in the acts which resulted in death.
Under the evidence presented in this case, the instructions respecting the separate offense of child abuse in violation of NRS 200.508 necessarily encompassed the definition provided to the jury of...
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