Lay v. State

• Court: Nevada Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Lay v. State, 110 Nev. 1189, 886 P.2d 448 (Nev. 1994)
• Decision Date: 30 November 1994
• Docket Number: No. 24097,24097
• Parties: Kevin Lamar LAY, Appellant, v. The STATE of Nevada, Respondent.

Page 448

886 P.2d 448

110 Nev. 1189

Kevin Lamar LAY, Appellant, v. The STATE of Nevada, Respondent.

No. 24097.

Supreme Court of Nevada.

Nov. 30, 1994.

David M. Schieck, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty. and Robert G. Lucherini, Deputy Dist. Atty., for respondent.

OPINION

PER CURIAM:

A jury found Kevin Lamar Lay guilty of the first degree murder of Richard Carter with use of a deadly weapon. The state sought the death penalty and presented evidence of a single aggravating circumstance, in addition to other sentencing information. The jury found one aggravating circumstance and fixed the penalty at life without possibility of parole. The judge sentenced Lay to two consecutive life terms without possibility of parole: one life term for the murder and one life term as an enhancement for use of a deadly weapon. Lay appeals, claiming a number of errors.

On June 14, 1991, a twenty-two count indictment was filed against Lay. In that indictment, Lay and two co-defendants were charged with the murder of Carter and with several unrelated crimes that had allegedly been committed over a two-year period including attempted murder, assault with a deadly weapon, battery with a deadly weapon, trafficking and possession of a controlled substance, grand larceny, robbery, aiming a firearm at a human being, intimidating a witness to influence testimony, and racketeering. The racketeering counts were based on allegedly continuous illegal gang activity. Lay was a member and leader of the "Piru Bloods," a Las Vegas gang patterned after, but not directly affiliated with, the Los Angeles Bloods. The racketeering counts were dismissed for lack of adequate evidence adduced at the grand jury proceeding. The count charging the murder of Carter was severed from the indictment and Lay was tried on that count apart from his co-defendants. The state sought the death penalty.

The State introduced a number of eyewitnesses who testified that at approximately 11:30 p.m. on June 4, 1990, defendant Lay drove a white Oldsmobile Cutlass into the parking lot of the AM/PM market at the corner of Martin Luther King Drive and Carey Avenue in North Las Vegas and shot a gun from the car window. After the shots, Carter lay on the ground bleeding and subsequently died at the hospital as the result of a gunshot wound. All of the eyewitness testimony was substantially the same, with several identifying Lay as the driver and shooter.

Lay contends there was insufficient evidence adduced at trial to prove that he murdered Carter. The standard of review on appeal in a criminal case for sufficiency of evidence is whether the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt by the evidence that was properly before it. Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992). This standard has also been articulated as "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." Guy v. State, 108 Nev. 770, 776, 839 P.2d 578, 582 (1992). Moreover, it is exclusively within the province of the trier of fact to weigh evidence and pass on the credibility of witnesses and their testimony. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20 (1981). In the instant case, the jury had before it sufficient evidence such that it could have been convinced beyond a reasonable doubt that Carter died from a gunshot wound and that the gun was fired by Lay.

Lay argues that the direct cause of Carter's death was negligent medical treatment rather than the gunshot wound Carter received. Even if the direct cause of Carter's death had been negligent medical care, the gunshot wound that necessitated the medical care was a substantial factor in bringing about Carter's death. A defendant will not be relieved of criminal liability for murder when his action was a substantial factor in bringing about the death of the victim. See, e.g., Kusmider v. State, 688 P.2d 957, 959-60 (Alaska Ct.App.1984); People v. Roberts, 2 Cal.4th 271, 6 Cal.Rptr.2d 276, 826 P.2d 274 (1992); State v. Velarde, 734 P.2d 449 (Utah 1986). Therefore, Lay was not entitled to the requested instruction on the theory that he did not proximately cause Carter's death.

Lay also claims that there was insufficient evidence to determine who the shooter was, and that he cannot therefore be found guilty of the first degree murder of Carter. The jury had before it ample credible evidence that Lay was the shooter. There were a number of eyewitnesses, many of whom testified consistently that Lay was driving and that Lay shot a rifle through an open car window. We conclude that the jury had before it sufficient evidence to find beyond a reasonable doubt that Lay was the shooter.

Lay next contends that the state made repeated, unfounded references to witness intimidation and threats, and to the general reluctance of witnesses to testify, and that these comments constituted prosecutorial misconduct requiring reversal. Lay does not argue that the judge erred in admitting the witnesses' statements regarding these subjects, but that the prosecutor committed misconduct in seeking to elicit and in arguing evidence of witness intimidation and reluctance to testify. We note that the testimony reflected a general reluctance to testify rather than reluctance to testify as a result of threats of intimidation, and there was substantial credible evidence to support the proposition that witnesses were afraid or had been confronted.

Federal courts have consistently held that the prosecution's references to, or implications of, witness intimidation by a defendant are reversible error unless the prosecutor also produces substantial credible evidence that the defendant was the source of the intimidation. See, e.g., United States v. Rios, 611 F.2d 1335, 1343 (10th Cir.1979); United States v. Peak, 498 F.2d 1337, 1339 (6th Cir.1974); United States v. Hayward, 420 F.2d 142, 147 (D.C.Cir.1969); Hall v. United States, 419 F.2d 582, 585 (5th Cir.1969). Federal courts have also reversed convictions where prosecutors have implied the existence of threats that "in the context of the whole record" specifically "hint[ed] of violence." See United States v. Muscarella, 585 F.2d 242, 248-49 (7th Cir.1978) citing United States v. Love, 534 F.2d 87 (6th Cir.1976)); Peak, 498 F.2d at 1337.

We first note that although many of these references were not relevant to any issue in the case, neither were they direct references to witness intimidation by Lay. Nor was there any implication that the witnesses were reluctant to testify because they thought Lay himself might retaliate against them or that Lay had threatened them. Most of the references appear, rather, to have been attempts to show the witnesses' reluctance to testify because of the presence in the witnesses' neighborhoods of Lay's fellow gang members who might retaliate against them for testifying. Although these references may have been irrelevant to the examination of most of the witnesses, we conclude that the references are not misconduct requiring reversal.

Lay argues, however, that the prosecutor attempted "to put gangs on trial" instead of putting Lay on trial and that this is an improper objective that was designed to distract and influence the jury and constitutes misconduct requiring reversal. We agree that this is not a proper objective, and that many of the references were simply not relevant to issues in the case beyond showing that witnesses were afraid because they lived in a neighborhood beset with gangs. However, we cannot conclude on this record that the references were intended to suggest that Lay had threatened or intimidated witnesses.

In addition, at least with respect to witness Haynes, the questions about reluctance and fright were relevant because Haynes had been impeached on cross-examination when Lay asked why Haynes had told the investigating officer that he could not describe or identify Lay as the shooter. Fright or general concern for his safety could have explained to the jury why Haynes made this prior inconsistent statement.

It is well established that where evidence of guilt is overwhelming, prosecutorial misconduct may be harmless error. See, e.g., Ybarra v. State, 103 Nev. 8, 16, 731 P.2d 353, 358 (1987). Although we disapprove of some of the prosecutor's references, we conclude that in light of the entire record, the references, even if they had risen to the level of prosecutorial misconduct, would have been harmless error.

Lay argues that the prosecutor committed reversible error in delivering the following portion of closing argument:

On the night of June 4th, 1990, society received a great loss and a life was taken from us. Richard Carter's family and friends can no longer have the opportunity to see him--[OBJECTION AND OBJECTION OVERRULED].

This court has expressly held that a prosecutor may comment on the loss experienced by the family of a murder victim. See Homick v. State, 108 Nev. 127, 135, 825 P.2d 600, 605 (1992) (adopting the holding of Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), allowing prosecutorial comment on and witness testimony of "victim impact" evidence).

Lay also argues that the anti-sympathy instruction read to the jury at the penalty phase unconstitutionally restricted the jury's consideration of mitigating evidence. This court has previously considered and rejected Lay's argument. See Riley v. State, 107 Nev. 205, 215-16, 808 P.2d 551, 557 (1991); Hogan v. State, 103 Nev. 21, 25, 732 P.2d 422, 424-25 (1987); Biondi v. State, 101 Nev. 252, 257-58, 699 P.2d 1062, 1066 (1985). In addition, this court has approved the specific instruction read to Lay's jury. See Howard v. State, 102 Nev. 572, 577-78, 729 P.2d 1341,...