Rose v. State

• Decision Date: 21 July 2011
• Docket Number: No. 53813.,53813.
• Parties: Brian ROSE, Appellant,v.The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

255 P.3d 291

Brian ROSE, Appellant,

v.The STATE of Nevada, Respondent.

No. 53813.

Supreme Court of Nevada.

July 21, 2011.

David M. Schieck, Special Public Defender, and JoNell Thomas, Deputy Special Public Defender, Clark County, for Appellant.Catherine Cortez Masto, Attorney General, Carson City; David Roger, District Attorney, Stephen S. Owens, Chief Deputy District Attorney, and Sonia V. Jimenez, Deputy District Attorney, Clark County, for Respondent.Before DOUGLAS, C.J., PICKERING and HARDESTY, JJ.

OPINION

By the Court, DOUGLAS, C.J.:

In this appeal, we address whether a charge of assault with a deadly weapon merges with a charged homicide so that it cannot be used as the basis for second-degree felony murder. To maintain the narrow confines of second-degree felony murder, wherein the felonies that can be used to support a conviction are not statutorily enumerated and the use of the felony-murder rule has “the potential for untoward prosecutions,” Sheriff v. Morris, 99 Nev. 109, 118, 659 P.2d 852, 859 (1983), we hold that assaultive-type felonies that involve a threat of immediate violent injury merge with a charged homicide for purposes of second-degree felony murder and therefore cannot be used as the basis for a second-degree felony-murder conviction. Whether the felony is assaultive must be determined by the jury based on the manner in which the felony was committed. Because the crime at issue here, assault with a deadly weapon, could be assaultive based on the manner in which it was committed, we conclude that the district court erred when it failed to instruct the jury to determine whether the felony underlying the second-degree felony-murder theory was assaultive based on the manner in which the felony was committed. We further conclude that the error was not harmless beyond a reasonable doubt. Accordingly, we reverse the judgment of conviction and remand this case for further proceedings consistent with this opinion.

FACTS

Appellant Brian Rose was convicted of second-degree murder with the use of a deadly weapon for shooting his girlfriend, Jackie Watkins, in the head. On the day of the killing, Rose and his friend, Jake Timms, went target shooting in the desert with Rose's .40 caliber Smith & Wesson semiautomatic handgun. Afterwards, they picked up Watkins and went to a barbeque at the home of another friend, Julius Castano. Rose brought the gun inside the house and placed it in the family room because he claimed he feared someone might break into his car and steal his registered gun.

Throughout the evening, Rose, Timms, and Julius handled the gun. At one point, Rose took the magazine out of the gun and pulled the slide back to make sure the chamber was empty. Timms took the gun and put it in a holster on his hip. After eating dinner and drinking, Rose, Watkins, Timms, and Julius retired to the living room. Timms eventually fell asleep on the couch with the gun still in the holster around his waist. At some point Rose took the gun from the sleeping Timms and placed it in his waistband.

Later in the evening, Rose shot Watkins in the head while she spoke on the phone to her friend Erin Fragoso. Fragoso called Watkins and the two spoke briefly. According to Rose's voluntary statement to police, he aimed the gun at or near Watkins while she was talking to Fragoso and told her to get off the phone. He then shot a single round from his gun and hit the top of Watkins's head. Fragoso could hear Rose's voice in the background and could tell that it was firm and forceful, but she could not hear his exact words. Fragoso ended the call after a long-silence from Watkins; she did not hear a gunshot.

Although witnesses in the home heard the gunshot, none of them saw Rose fire the gun. Julius's father, Joseph Castano, was upstairs in his room at the time and heard laughing from downstairs right before the gunshot was fired. Julius heard the gunshot and turned around to see Watkins on the couch, not moving. Rose was standing right next to Watkins with the gun in his hand. Julius testified that “there was no stiff pointing the gun at nobody.... It was in [Rose's] hand like he wanted me to take it from his hands.” Julius took the gun from Rose, and Rose left the house in his car. Joseph checked Watkins and directed his son to call 911.

Officers arrived quickly at the home and noted that Watkins was positioned as if she was still talking on the phone. Medical personnel took Watkins to the hospital where she died from deprivation of blood to the brain. At the Castano home, officers found an ejected cartridge on the floor against the wall, behind a couch. Officers also found Rose's loaded Smith & Wesson handgun upstairs in a bedroom.

A police officer located Rose, who was driving at speeds approaching 100 miles per hour, and followed him but did not pull him over. Rose pulled over voluntarily, exited his car, and was taken into custody. Upon his arrest, the police read Rose his Miranda rights, and he was interviewed by Las Vegas Metropolitan Police Department homicide detectives. Rose admitted to knowing how to use his gun and knowing that the gun had no hammer. Rose told the detectives that he did not know his gun was loaded and that he accidentally shot Watkins. He also told them that he considered fleeing to Mexico. When the detectives asked Rose if he intended to shoot Watkins, he responded, “God no.”

Rose acknowledged that he must have pulled the trigger when he turned, but there was no witness testimony presented that Rose purposefully aimed and fired at Watkins. In his voluntary statement to detectives, Rose claimed that he had pointed the gun at the chair next to Watkins to be “a dick.” He said he gave Watkins “a squinted look” and smiled to let her know he was playing around. Rose stated that he “looked back the other way and, and then when [he] looked back, that's when it actually went off.” Rose asserted that he did not care whether Watkins got off the phone or not, and, at the time, he believed the gun was empty. At the end of the interrogation, the detectives told Rose that Watkins died, and Rose became very upset and cried.

Rose was charged with one count of murder with use of a deadly weapon. Rose pleaded not guilty and filed a petition for a writ of habeas corpus with the district court challenging the probable cause to support the indictment. The district court denied the petition. Next, Rose filed a pretrial motion asking the district court to strike the second-degree felony-murder theory and disallow the State from presenting any instructions on such a charge. Specifically, Rose asked the court to apply the merger doctrine, arguing that “assault with a deadly weapon cannot support a murder conviction under the second-degree felony-murder rule because to allow that would alleviate the State from ever having to prove intent to kill in all cases wherein a killing results from a felonious assault.” The district court denied Rose's motion and permitted the State to argue this theory.

The case went to trial with Rose continuing to challenge the State's pursuit of a murder conviction. During the settling of jury instructions, Rose requested the first-degree murder charge be stricken from the instructions, arguing that since the State declared it was seeking a second-degree murder conviction during its opening statement, it had conceded that there was no evidence of premeditation and deliberation that would subject him to first-degree murder. The State countered Rose's claim, arguing that there was evidence of premeditation and deliberation, and it had not conceded it by arguing second-degree murder during its opening statement. The district court denied Rose's motion. Rose further objected to all jury instructions concerning murder, and the district court overruled each objection.

Ultimately, the jury returned a general verdict finding Rose guilty of second-degree murder with the use of a deadly weapon. Rose filed a motion to set aside the guilty verdict or, in the alternative, for a new trial. The district court denied Rose's motion, stating it would not have been shocked if the jury returned either a manslaughter or second-degree murder verdict. Rose was sentenced to 10 to 25 years in prison, plus an equal and consecutive term for the use of a deadly weapon. Rose now appeals from his judgment of conviction.

DISCUSSION

The record indicates that the State relied on the felony-murder rule as one of its theories for second-degree murder. During closing argument, the State argued that malice could be established in four ways: (1) express malice (intent to kill), (2) implied malice (reckless disregard of consequences and social duty), (3) felony murder based on assault with a deadly weapon, and (4) commission of an unlawful act that naturally tends to destroy the life of a human being. It argued that if the killing occurred during “the prosecution of committing a felony,” specifically, assault with a deadly weapon, the crime was second-degree murder. This argument was consistent with the jury instruction the district court gave regarding involuntary manslaughter and second-degree murder.¹

On appeal, Rose contends that assault with a deadly weapon cannot be used as a predicate felony to obtain a second-degree murder conviction under the felony-murder rule because it merges with the homicide and thus is barred by the merger doctrine. He contends that the State's reliance on this theory, and the concomitant instructions given regarding second-degree felony murder, were therefore improper.

Standard of review

“The district court has broad discretion to settle jury instructions, and this court reviews the district court's decision for an abuse of that discretion or judicial error.” Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005) (citing Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001)). Here, the instructional error involves a question of law, and we therefore...