Schoels v. State

• Decision Date: 27 October 1998
• Docket Number: No. 28086,28086
• Citation: 966 P.2d 735,114 Nev. 981
• Parties: William Christopher SCHOELS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 735

966 P.2d 735

114 Nev. 981

William Christopher SCHOELS, Appellant, v. The STATE of Nevada, Respondent.

No. 28086.

Supreme Court of Nevada.

Oct. 27, 1998.

Morgan D. Harris, Public Defender, Michael L. Miller and Howard Brooks, Deputy Public Defenders, Clark County, for appellant.

Frankie Sue Del Papa, Attorney General, Carson City Stewart L. Bell, District Attorney and James Tufteland, Chief Deputy District Attorney, Clark County, for respondent.

OPINION

ROSE, Justice.

William Christopher Schoels and Gregory Hayes were playing basketball at a sports complex in Las Vegas when they engaged in an argument. Schoels announced that he was going to leave and began walking toward the opposite end of the basketball court. According to witnesses, Hayes followed Schoels, "talking trash," and threatening to return with a gun. Schoels then pulled a gun and shot Hayes in the right shoulder. Hayes fell forward, grabbing Schoels around the legs, and Schoels then shot him in the back, killing him.

Schoels was arrested, and a jury convicted him of first-degree murder with the use of a deadly weapon and possession of a firearm by an ex-felon. Schoels was sentenced to life in prison without the possibility of parole for the murder conviction, life without the possibility of parole for use of a deadly weapon, and six years in prison for the possession of a firearm by an ex-felon.

Schoels now appeals his convictions and sentences, arguing that the district court abused its discretion and committed reversible error both in the guilt and penalty phases of his trial.

Denial of Plea Change

On October 19, 1993, Schoels pleaded not guilty to the charge of ex-felon in possession of a firearm. Twenty-three months later, just before jury selection and after both parties had prepared their cases for trial, Schoels petitioned the court to change his plea on that charge. The district court denied the request, stating that allowance of the change at such a late point in the proceedings would be "highly detrimental to the State."

Schoels argues that the district court's denial of this request contaminated the jury and denied him a fair trial. He argues that a plea of guilty would have allowed the jury to deliberate the degree of the alleged homicide without being influenced by knowledge of his ex-felon status.

"[A]ccepting a tendered plea of guilty is within the sound discretion of the trial court." Sturrock v. State, 95 Nev. 938, 940, 604 P.2d 341, 343 (1979) (footnote omitted); NRS 174.035(1). ¹ A defendant does not have a right to have his guilty plea accepted. North Carolina v. Alford, 400 U.S. 25, 38 n. 11, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Jefferson v. State, 108 Nev. 953, 954, 840 P.2d 1234, 1235 (1992). A trial judge has authority to assure protection of public interests including assuring fairness to the prosecution. Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988).

NRS 174.035(1) provided the district court the discretion to deny Schoels' plea. Because the trial court has discretion to decline to accept a plea change when necessary to protect the public interest, we hold that the district court did not abuse its discretion by denying Schoels' guilty plea.

Jury Instructions

Schoels argues that the district court improperly instructed the jury regarding the elements of first-degree murder, the elements of voluntary manslaughter and the applicability of self-defense to the charges.

Schoels concludes that the district court failed to instruct the jury that first-degree murder must be "willful, deliberate and premeditated." See NRS 200.030. Schoels contends that the district court, by defining only "premeditation" and by failing to define "willful" and "deliberate," rendered NRS 200.030 meaningless and blurred the distinction between first and second-degree murder. Schoels further contends that the district court misled the jury when it defined premeditation as "instantaneous as successive thoughts of the mind." ²

It is not necessary to offer discrete definitions of deliberateness or willfulness so long as the jury instruction on premeditation is proper. See Powell v. State, 108 Nev. 700, 709-10, 838 P.2d 921, 927 (1992), vacated on other grounds, 511 U.S. 79, 114 S.Ct. 1280, 128 L.Ed.2d 1 (1994) see also Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996) Witter v. State, 112 Nev. 908, 921 P.2d 886 (1996); DePasquale v. State, 106 Nev. 843, 803 P.2d 218 (1990), cert. denied, 502 U.S. 829, 112 S.Ct. 99, 116 L.Ed.2d 70 (1991) (using premeditated and deliberate as a single term); Briano v. State, 94 Nev. 422, 581 P.2d 5 (1978) (same). Premeditation requires the state to "prove that a design to kill was distinctly and rationally formed in the mind of the perpetrator, at or before the time the fatal blows were struck .... [regardless of] how short a time existed between the formation of the design to kill and the killing itself." Briano, 94 Nev. at 425, 581 P.2d at 7 (citations omitted).

In Powell, this court examined an instruction identical to the instruction challenged by Schoels and held that it was a proper definition of premeditation. Id., 108 Nev. at 710, 838 P.2d at 927. Accordingly, we hold that the district court did not err by failing to define willfulness or deliberateness.

Schoels also contends that the district court erred by failing to include his proposed language in the jury instruction regarding voluntary manslaughter. ³ At trial, Schoels argued that the victim's threat of physical violence to Schoels was sufficient provocation to justify a finding of voluntary manslaughter. The defense proposed the following addition to the instruction: "The serious and highly provoking injury which causes the sudden heat of passion for purposes of voluntary manslaughter can occur without direct physical contact." The proposed language is consistent with Nevada law. See Roberts v. State, 102 Nev. 170, 717 P.2d 1115 (1986) (a serious and highly provoking injury need not be a direct physical assault on the victim). The State argues that the reference to attempt in the jury instruction ⁴ sufficiently conveys that no direct physical assault is necessary to provoke manslaughter, and that the proposed language was therefore superfluous.

We conclude that the jury instruction failed to convey unambiguously that a direct physical assault by the victim was unnecessary. However, it seems obvious that had the jury received a proper instruction, it would not have reached a different conclusion at trial. Horvath v. Burt, 98 Nev. 186, 643 P.2d 1229 (1982) (reversal is not required unless a different result would be likely absent the contested instruction). Therefore, we conclude that Schoels' argument lacks merit.

Schoels next contends that the district court improperly instructed the jury regarding self-defense. ⁵ Schoels argues that the language "actual danger is not necessary to justify self defense" should have been added to the instruction and was necessary to his defense. An instruction that a defendant may only use self-defense to justify a homicide when he is in actual danger of being killed or seriously injured by his assailant is improper. Culverson v. State, 106 Nev. 484, 797 P.2d 238 (1990). Schoels contends that the court's refusal to include his proposed language resulted in an unfair trial.

The State argues that the language in the jury instruction, stating that "the right of self defense upon such appearances and from such fear and honest convictions ... is the same whether such danger is real or merely apparent," explained that apparent danger justifies self-defense as much as actual danger. We agree, and conclude that Schoels' challenge of the jury instruction plainly lacks merit.

Prosecutorial Misconduct

Schoels claims that the prosecution engaged in several forms of misconduct at trial. He argues that the prosecution made statements that referred to the jury as the conscience of the community or sought to align the jury with the prosecution, and inappropriately forecast his future dangerousness.

Schoels' first allegation of misconduct is that the prosecutor improperly referred to the jury as "the conscience of the community," violating the well-established prohibition against such tactics. See Haberstroh v. State, 105 Nev. 739, 782 P.2d 1343 (1989), cert. denied, 510 U.S. 858, 114 S.Ct. 169, 126 L.Ed.2d 129 (1993); see also Snow v. State, 101 Nev. 439, 705 P.2d 632 (1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986). However, in first degree murder cases where the jury is to consider the sentence to be imposed, we have previously held that it was not reversible error for a prosecutor to argue community standards to assist the jury in imposing the punishment. See Lisle v. State, 113 Nev. 540, 937 P.2d 473 (1997); Domingues v. State, 112 Nev. 683, 917 P.2d 1364 (1996). Upon consideration of the numerous instances cited by Schoels, we conclude that the prosecution made no improper argument and that Schoels' claim of error on this ground is therefore meritless.

Schoels' second allegation of misconduct is that the prosecution improperly used collective terms such as "we", "us" and "our" in its closing argument. ⁶ It is improper for the State to argue in a fashion that suggests the jury should align itself with the prosecution. Snow, 101 Nev. at 447, 705 P.2d at 639.

The State argues that it did not use the words "we", "us", and "our" to align the jury with the prosecution. Collective pronouns such as "we" and "our" are appropriate if they are used to indicate citizens or human beings rather than to align the prosecution with the jury in determining a defendant's punishment. Id. at 447, 705 P.2d at 639. We conclude that the prosecution's use of "we", "us" and "our" did not constitute prosecutorial misconduct.

Schoels' third allegation of misconduct involves the prosecution's prediction of his future dangerousness as a basis for imposition of the death penalty. The prosecution...