Polk v. Sandoval

• Decision Date: 11 September 2007
• Docket Number: No. 06-15735.,06-15735.
• Citation: 503 F.3d 903
• Parties: Levenral D. POLK, Petitioner-Appellant, v. Brian SANDOVAL; State of Nevada, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

503 F.3d 903

Levenral D. POLK, Petitioner-Appellant, v. Brian SANDOVAL; State of Nevada, et al., Respondents-Appellees.

No. 06-15735.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2007.

Filed September 11, 2007.

Lori C. Teicher, Assistant Federal Public Defender, Las Vegas, NV, for the petitioner-appellant.

George J. Chanos, Attorney General, Robert E. Weiland (argued), Senior Deputy Attorney General, Criminal Justice Division, Reno, NV, for the respondents-appellees.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-03-00125-PMP.

Before: B. FLETCHER, RICHARD R. CLIFTON, and SANDRA S. IKUTA, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Levenral Demarlo Polk, a Nevada state prisoner, appeals the denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for first-degree murder with a deadly weapon and discharge of a firearm from a motor vehicle. We have jurisdiction pursuant to 28 U.S.C. § 2253. We hold that Polk's federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation. The error was not harmless. We reverse and remand to the district court to grant the writ unless the State elects to retry Polk within a reasonable time.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the night of December 14, 1998, Levenral Demarlo Polk drove around Las Vegas in a car borrowed from his girl-friend, Leslie Harris. Polk's longtime friend, Walter ("Wattie" or "Y.T.") Hodges, was a passenger in the car. Near the intersection of Owens Avenue and Nellis Boulevard, witnesses heard several gunshots and saw Hodges fall out of a car that looked like Harris's and into the street in front of a bus stop as the car drove away.

On March 16, 1999, the State of Nevada charged Polk in the Clark County District Court with the first-degree murder of Hodges with use of a deadly weapon and discharging a firearm out of a motor vehicle. Nevada Revised Statutes § 200.010 defined murder as "the unlawful killing of a human being, with malice aforethought, either express or implied." Nev.Rev.Stat. § 200.010 (1999). Murder of the first degree is murder "[p]erpetrated by means of poison, lying in wait or torture, or by any other kind of willful, deliberate and premeditated killing." Nev.Rev.Stat. § 200.030(1)(a) (1999) (emphasis added). Murder of the second degree is "all other kinds of murder." Nev.Rev.Stat. § 200.030(2) (1999).

A five-day jury trial was held. Most of the evidence went to the issue of identity. The State presented the following evidence regarding premeditation and deliberation: Donnette Peach, Polk's ex-girlfriend, testified that in September or October 1998, she witnessed an argument between Polk and Hodges over money related to their drug dealing. She testified that Polk said to Hodges, "I won't fight you. I'll shoot you. I like to shoot people." She also testified that she thought this fight was not serious although it was different from previous fights between Polk and Hodges.

Thomas Tocco, a manager of a Checker Auto Parts store located at the intersection of Owens Avenue and Nellis Boulevard, testified that he was at the store on the night of December 14 when he heard male voices arguing shortly before he heard gunshots. He did not see who was arguing.

Earlier in the evening of December 14, Polk and Hodges stopped by Roshandia Leatherwood's apartment. While Hodges waited in the car, Polk went inside to borrow a bulletproof vest from Renardy ("Buddha") Neau, Roshandia's boyfriend. Neau testified that Polk wanted to borrow his vest for protection because Polk had gotten into a "scuffle" with "some dudes" and that he put on the vest before he left the apartment. Neau also testified that he had wanted to sell the vest, but Polk did not offer to sell the vest for him. Other witnesses testified that they saw Polk wearing the vest. Polk brought the vest back later that night.

According to Polk, he borrowed the vest in order to sell it for Neau. Polk testified that because the vest was stolen, he put it under his shirt as he walked out of the apartment complex so that it would not be seen on the security cameras. He did not tell detectives about the vest in his initial statement because it was stolen. Polk testified that after he left Leatherwood's apartment, he dropped off Hodges at 28th Street, where Hodges planned to sell drugs, and that he drove to Oasis Ridge to sell the vest to someone named Mike. Polk testified that Mike did not have enough money to buy the vest, so he gave it back to Neau later that night.

The jury was instructed on the definitions of first-and second-degree murder. See Instruction No. 13 ("Murder of the First Degree is murder which is perpetrated by any kind of willful, deliberate and premeditated killing."); Instruction No. 15 ("Murder of the second degree is murder with malice aforethought, but without the admixture of premeditation. [¶] All murder which is not murder of the first degree is murder of the second degree."). Instruction No. 14 defined premeditation as follows:

Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing.

Premeditation need not be for a day, an hour or even a minute. It may be as instantaneous as successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has been preceded by and has been the result of premeditation, no matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate and premeditated murder.

Instruction No. 14 (emphasis added). Defense counsel objected to this instruction known as the Kazalyn instruction,¹ on the ground that it defined willful, deliberate, and premeditated as "the same thing," violating Polk's Sixth Amendment right to a fair trial and his Fifth and Fourteenth Amendment right to due process. Defense counsel requested the addition of a definition for "deliberate" at the end of Instruction No. 14: "Deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed cause of action." The trial court overruled the objection and declined to adopt the proposed instruction.

In closing, the prosecutor emphasized that "[p]remeditation can be formed at the time of the killing as instantaneous as successive thoughts of the mind," and argued that both premeditation and deliberation had been proven because "this man borrows and puts on a bulletproof vest, takes out his handgun, and shoots it into the body of this person not once, but twice, and missing a couple other times.... So this is first degree murder, ladies and gentlemen. This is not second degree murder." In response, defense counsel pointed to evidence showing that Polk did not put on the vest and argued that the fact that Polk picked up the vest did not show that he intended to kill Hodges. The prosecutor argued in rebuttal that first-degree murder required only "successive thoughts of the mind":

Premeditation, you can talk about the vest all you want. It doesn't matter if he had the vest or not. That's just one fine nuance that we have, because it only takes successive thoughts of the mind. All it takes is pointing the weapon and pulling the trigger. That's successive thoughts of the mind. Or the second shot or the third shot or the fourth shot.... [I]t's the successive shots that helps you out in that regard.

(Emphasis added).

The jury found Polk guilty of first-degree murder with a deadly weapon and discharging a firearm out of a motor vehicle. The trial court sentenced Polk to two consecutive life terms in prison without the possibility of parole and a consecutive term of 40 to 180 months. Polk appealed to the Nevada Supreme Court. Polk raised several arguments on appeal, including the argument that the Kazalyn instruction deprived him of a fair trial. He argued that the rule recently announced by the Nevada Supreme Court in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), should be applied to him.²

In Byford, the Nevada Supreme Court identified a major shortcoming in the Kazalyn instruction: it did not give effect to all three elements of first-degree murder under Nevada Revised Statutes § 200.030(1)(a) — willfulness, premeditation, and deliberation. Byford, 994 P.2d at 712-14. As a result, the court directed that the Kazalyn instruction should not be given in future cases. Id. at 714-15. The court held:

By defining only premeditation and failing to provide deliberation with any independent definition, the Kazalyn instruction blurs the distinction between first- and second-degree murder.

... "It is clear from the statute that all three elements, willfulness, deliberation, and premeditation, must be proven beyond a reasonable doubt before an accused can be convicted of first degree murder."

In sum, the Kazalyn instruction and[related caselaw] do not do full justice to the phrase "willful, deliberate, and premeditated." Deliberation remains a critical element of the mens rea necessary for first-degree murder, connoting a dispassionate weighing process and consideration of consequences before acting. "In order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection."

Because deliberation is a distinct element of mens rea for first-degree murder, we direct the district courts to cease instructing juries that a killing resulting from premeditation is "willful, deliberate, and premeditated murder." Further, if a jury is instructed separately on the meaning of premeditation, it should also be instructed on the meaning of deliberation.

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