Runion v. State

• Decision Date: 04 December 2000
• Docket Number: No. 32441.,32441.
• Citation: 13 P.3d 52,116 Nev. 1041
• Parties: Travis Earl RUNION, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

13 P.3d 52

116 Nev. 1041

Travis Earl RUNION, Appellant, v. The STATE of Nevada, Respondent.

No. 32441.

Supreme Court of Nevada.

December 4, 2000.

Philip J. Kohn, Special Public Defender, and Laurel A. Duffy, Mark B. Bailus, and Lee Elizabeth McMahon, Deputy Special Public Defenders, Clark County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Christopher J. Laurent, Chief Deputy District Attorney, and David T. Wall, Deputy District Attorney, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

Appellant Travis Earl Runion was convicted of first-degree murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon for shooting from the window of his vehicle into another vehicle, killing one passenger and wounding another. Runion now appeals on several grounds. For the reasons set forth below, we reverse his convictions for first-degree murder and attempted murder and remand this matter to the district court for a new trial.

FACTS

In October of 1996, Runion was driving his friend, Darla Spomer, to her mother's home when he became involved in an altercation with the occupants of a vehicle driven by Stephen Goldman near the intersection of Pecos Drive and Stewart Avenue in Las Vegas. Runion fired a gun into the passenger side of Goldman's vehicle, killing Josh Pendergraft and wounding Moses Companioni. Witnesses to the shooting contacted police who, after interviewing witnesses and investigating the scene, arrested Runion for murder and attempted murder.

Runion's trial began in February of 1998, at which time conflicting evidence concerning the shooting was adduced.

Companioni testified that Runion was the initial aggressor. He claimed that Runion pulled up alongside Goldman's vehicle and initiated an argument with Pendergraft. Companioni admitted that there was a gun in Goldman's vehicle, but insisted that it was under the hood at all times that day and was never in the passenger compartment.

Goldman testified that Pendergraft had "flipped Runion off" and that a verbal argument ensued between the two at the intersection. Goldman further testified that he ducked when he heard shots coming from the direction of Runion's car. Goldman claimed that the .9 mm weapon, located in the vehicle's engine compartment, to which he later directed police, belonged to a friend, had been in the vehicle's engine compartment for some time, and was never in the passenger compartment that day.

Shortly after Goldman's testimony, a juror informed the district court in chambers that he overheard Goldman telling Companioni during a recess that "I just lied my ass off in there." After being excused from jury service, the juror testified about what he had overheard. On recall, Goldman denied making the statement and called the juror a liar.

Spomer testified that as she and Runion were driving in his car, Runion told her that a person, later identified as Pendergraft, had "flipped him off." Largely in response to leading questions posed by the prosecutor, Spomer stated that after an argument ensued at the intersection, she saw Runion pull out a gun, that she heard shots fired, and that she put her head down when the shooting started and, as a result, could not be sure whether any shots were fired from Goldman's vehicle. Spomer described the occupants of Goldman's car as "bald, white guys" who "looked like gang members" and who were swearing at Runion. Several eyewitnesses testified that they "heard" gunshots or observed "flashes" coming from Runion's vehicle but did not observe any gunfire coming from Goldman's vehicle. However, one eyewitness testified that shots were fired from both vehicles and that she heard two different gunshots.

Several police officers testified concerning their investigation, including the subsequent impounding of a loaded .9 mm gun wrapped in a black and white bandana found in the engine compartment of Goldman's car as well as a .38 caliber bullet projectile from the passenger side door of Goldman's car. The officers also found two bullet holes in Goldman's vehicle, only one of which was fresh. Runion's weapon was never recovered and no bullet holes were found in his vehicle. Ballistic tests concluded that cartridge casings and a bullet fragment impounded at the scene were not fired from the .9 mm weapon found in Goldman's vehicle.

Runion's theory of the case was self-defense. He testified that Pendergraft was the initial aggressor. According to Runion, Pendergraft "flipped him off," and then, as their vehicles idled at a red light, Pendergraft yelled, cussed, and made gang signs at Runion. Runion testified that he was afraid for their safety, that he thought Pendergraft was going to shoot them, and that he reached for his gun and shot in the direction of Goldman's vehicle after he saw Pendergraft pull out a gun and point it at him.

Penny Helton, Runion's roommate and friend, testified for the defense about her conversation with him on the night of the shooting. Helton testified that Runion acted very depressed, told her he had shot someone, and cried for a long time. Runion sought testimony from Helton that, three to four days after the shooting, Runion told her that he had fired in self-defense. The prosecution objected, and the district court ruled that the statement was not a prior consistent statement because of an inconsistency in Runion and Helton's recollections as to when Runion made the statement.¹ In closing argument, the prosecutor repeatedly commented on the discrepancy between Runion and Helton's testimony and implied that Runion had never told Helton the shooting was in self-defense.

The jury found Runion guilty of first-degree murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon. In addition to the consecutive terms of imprisonment for the attempted murder with use of a deadly weapon, Runion was sentenced to two consecutive terms of life imprisonment with the possibility of parole for first-degree murder with use of a deadly weapon.

DISCUSSION

I. Proposed jury instruction on apparent danger as a theory of self-defense

Runion contends that the district court erred in refusing to give the jury an instruction he submitted on apparent danger, arguing that the instructions given to the jury regarding self-defense were confusing and misleading. In particular, Runion points out that Instruction 26 misstated the law by including a statutory definition of self-defense that was repealed in 1993, and that Instruction 25 and Instruction 27 include factual scenarios of self-defense dissimilar to the facts in this case. We agree that the instructions given in this case may have misled the jury. Additionally, Runion raises a legitimate concern regarding the sufficiency of self-defense instructions in cases where the evidence presents the issue of apparent danger.

At common law, an individual had a right to defend himself against apparent danger to the same extent as if the danger had been real, provided he acted upon a reasonable apprehension of danger. Specifically, homicide was justified where: (1) the defendant was not the aggressor in the encounter; (2) the defendant was confronted with actual and immediate danger of unlawful bodily harm or he reasonably believed that there was immediate danger of such a harm; and (3) the use of such force was necessary, in a proportionately reasonable amount, to avoid this danger. Nevada's self-defense statutory framework has existed for over seventy years. See NRS 200.120, 200.130, 200.160, and 200.200.

NRS 200.120 states that "[j]ustifiable homicide is the killing of a human being in necessary self-defense." NRS 200.120 (emphasis added). This language seems to state that homicide is justified only when a person is in actual danger.

NRS 200.160 states that homicide is "also" justified when a person reasonably believes that he is about to be seriously injured or killed and "there is imminent danger of such design being accomplished." NRS 200.160(1) (emphasis added).

Finally, NRS 200.200 states that if a person kills another in self-defense "it must appear that: 1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary . . . ." NRS 200.200(1) (emphasis added). While the phrase "absolutely necessary" seems to indicate that self-defense is a justification for homicide where a person is actually in imminent danger, the use of the word "appear" implies that self-defense may be a justification for homicide in instances where a person reasonably believes that he is about to be seriously injured or killed but he is mistaken in that belief.

It has long been recognized that criminal and penal statutes are to be strictly construed against the State. See Sheriff v. Smith, 91 Nev. 729, 733, 542 P.2d 440, 443 (1975)

. Where a statute is ambiguous, this court must construe its provisions to give meaning to all of the language and should read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation. See Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983); Sawyer v. District Court, 82 Nev. 53, 56, 410 P.2d 748, 750 (1966). The intent of the legislature is the controlling factor in statutory interpretation. See Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993).

There is, however, a presumption that these statutes are consistent with the common law. See Ewing v. Fahey, 86 Nev. 604, 607, 472 P.2d 347, 349-50 (1970)

(statutory construction presumption that statutes are consistent with common law); see also State v. Hamilton, 33 Nev. 418, 426, 111 P. 1026, 1029 (1910) (common law prevails in Nevada except where abrogated). This court's decisional law with regard to self-defense has construed Nevada's ...