Ramirez v. The State Of Nev.
| Decision Date | 01 July 2010 |
| Docket Number | No. 46417.,46417. |
| Parties | Felicia Garcia RAMIREZ, Appellant,v.The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
235 P.3d 619
Felicia Garcia RAMIREZ, Appellant,
v.
The STATE of Nevada, Respondent.
No. 46417.
Supreme Court of Nevada.
July 1, 2010.
Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent.
Before the Court En Banc.
In this appeal, we consider whether the jury was properly instructed on the offense of second-degree felony murder by means of child neglect or endangerment. For the reasons outlined in this opinion, we conclude that the jury was not completely and accurately instructed as to the necessary elements of second-degree felony murder and that the improper instruction affected appellant Felicia Ramirez's substantial rights. Accordingly, we reverse the district court's judgment of conviction and remand this matter for a new trial. 1
Appellant Felicia Ramirez and her boyfriend, Joel Aponte, were each charged with alternative counts of first-degree felony murder by means of child abuse and second-degree felony murder by means of child neglect or endangerment based on the death of their 16-day-old daughter, Trinity. Ramirez and Aponte had two children together, another daughter and newborn Trinity.
At trial, expert testimony established that Trinity's death was the result of about 12 blows to the head with a blunt object no more than 12 hours before she was declared dead. She also had two small fractures to the back left ribs. Evidence at trial established that the child had been exclusively in the care of Aponte and Ramirez during that 12-hour time frame, and a pediatrician testified that Trinity was in good health a few days before her death. Aponte and Ramirez were arrested and charged approximately nine months after Trinity's death.
Shortly before their trial, Aponte reached a plea agreement with the State. He agreed to plead guilty to child neglect or endangerment resulting in substantial bodily injury or death in exchange for testifying against Ramirez. At trial, Aponte testified that when he returned home around 5 or 5:30 p.m. on the evening that Trinity die d, Trinity was pale and lethargic, but he saw no other signs of distress. Ramirez asked him to check on Trinity several times that night when she thought she heard Trinity crying. When he checked on Trinity around 9 or 9:30 p.m., she was not breathing.
He also testified to two incidents indicating that Ramirez was violent, suicidal, and did
Ramirez testified that she was home alone with Trinity from 10 a.m. to 5 p.m. on the day Trinity died and that Trinity had been fussy, irritated, and a little sick with a cold. When Aponte arrived home at 5 p.m., Trinity was asleep on the couch. According to Ramirez, she and Aponte watched a basketball game while Trinity slept on the couch and then, while Ramirez made popcorn, Aponte put Trinity to bed. Aponte then checked on Trinity a few times after that. Ramirez testified that she did not hurt Trinity and did not see Aponte hurt Trinity.
Ramirez also explained that she attempted suicide about eight months after Trinity's death because Aponte left her, Trinity was dead, and their other daughter had been taken by child services. Ramirez told the jury that she did not know she was pregnant with a third child at the time of the suicide attempt. She also explained that she was referring to Aponte leaving her, Trinity's death, and her other child being taken away by child services when she said that she was “sorry for what [she] did,” that she had “failed as a mother and a girlfriend,” and that “[i]t's all my fault” in her suicide note.
Ramirez testified about her relationship with Aponte and his interaction with their children. In particular, she testified that Aponte was physically and emotionally abusive to her and that he had not been very interested in raising their two children. While Aponte would help with the children sometimes when asked, he was resistant and would get frustrated quickly, calling Trinity names when she cried. Ramirez testified that Aponte would say, “that bitch cries too much” and instruct Ramirez to “shut the bitch up.”
Two witnesses testified about Aponte's and Ramirez's demeanor on the night of Trinity's death. The first paramedic responding to Ramirez's 9-1-1 call testified that Aponte was hysterical but that Ramirez did not cry. Similarly, the coroner's investigator who picked up Trinity's body at the hospital testified that Aponte was crying but Ramirez was not.
The jury acquitted Ramirez of first-degree felony murder by means of child abuse but found her guilty of second-degree felony murder by means of child neglect or endangerment. The district court subsequently sentenced Ramirez to a term of life imprisonment with the possibility of parole after ten years. This appeal followed.
Although she failed to object at trial, Ramirez now contends that the jury was not completely and accurately instructed on the necessary elements of second-degree felony murder by means of child neglect or endangerment. We agree that the jury was not properly instructed as to all the necessary elements of second-degree felony murder. And because we conclude that the error affected Ramirez's substantial rights, we reverse the judgment of conviction and remand for a new trial despite Ramirez's failure to object to the instruction below.
The offense of second-degree felony murder
We first recognized the substantive offense of second-degree felony murder in Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852 (1983). In Morris, we concluded that Nevada's involuntary manslaughter statute, NRS 200.070, when read in conjunction with Nevada's murder...
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