Walker v. State

• Decision Date: 01 July 1994
• Docket Number: No. 22968,22968
• Citation: 876 P.2d 646,110 Nev. 571
• Parties: Dannie Ray WALKER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 646

876 P.2d 646

110 Nev. 571

Dannie Ray WALKER, Appellant, v. The STATE of Nevada, Respondent.

No. 22968.

Supreme Court of Nevada.

July 1, 1994.

Morgan D. Harris, Public Defender, and Stephen J. Dahl, Deputy Public Defender, Clark County, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland and Ulrich W. Smith, Deputy Dist. Attys., Clark County, for respondent.

OPINION

ROSE, Chief Justice.

Appellant Dannie Ray Walker (Walker) was convicted of three counts of attempted murder with the use of a deadly weapon for firing shots at three rival gang members in a gas station parking lot. At trial, Walker requested that the jury be instructed as to the offense of assault with the use of a deadly weapon, and the district court refused. We conclude that the district court erred in declining to instruct the jury as to the lesser included offense of assault with the use of a deadly weapon, and we reverse Walker's three convictions for attempted murder and remand the case for a new trial.

Facts

On August 6, 1990, Patrick Darrett (Darrett), Earnest Hines (Hines), and Paul Synagogue (Synagogue) pulled into an AM/PM Mini-Mart (AM/PM) in a notorious gang area of Las Vegas to purchase gas. A faction of the Crips street gang, known as the Gerson Park Kingsmen, is known to "control" the area around the AM/PM. Walker was identified at trial as a member of this Crips street gang. The colors of the Gerson Park Kingsmen are green and black, and Walker wore green and black at the time of the shooting.

Darrett, at the time of the shooting, wore red and black, the colors of the Bloods street gang. Hines and Synagogue were two notorious members of the Bloods street gang. While Darrett was in the process of purchasing gas, Walker, standing just outside the store, addressed Darrett, saying "What up cuz," to which Darrett replied, "What up Blood?" Hines testified that this exchange is intended, in the street gang subculture, to be offensive and to be a challenge. Hines testified that, once such an exchange takes place, "they [the parties involved] supposed to, you know, get um up," and that the words are "[s]hooting words, or fighting words, whichever way it goes." Hines also testified that "[t]he colors speak just as well as the words," and that gang members will shoot, stab, or fight members of a gang who wear colors in the rival gang's territory.

After the exchange of words, Darrett returned to the rear of his car, where Hines and Synagogue stood, to start pumping gas. A person dressed in green and black, identified as Walker at trial, began walking toward the front of Darrett's car, shooting at Darrett, Hines, and Synagogue with what appeared to be a semi-automatic handgun capable of rapid fire. At the time the shooting started, Walker was approximately forty to forty-five feet from Darrett, Hines, and Synagogue. Darrett, Hines, and Synagogue ducked behind Darrett's car as Walker continued to advance while firing. Walker advanced to the front of the car, at which point he stopped firing, but continued to point the gun at the three victims. As Walker started to walk around the front of the car, the victims stood up, at which point Walker began firing again and the victims ran. As Darrett, Hines, and Synagogue were running away, Walker continued to fire, and he chased the three victims as far as the end of the AM/PM parking lot. Darrett, Hines, and Synagogue escaped from the AM/PM without being shot. Hines testified that he heard one or more bullets whistle past him, and that he saw flashes of light but did not actually see a gun.

A police investigation for physical evidence of the discharge of firearms at the AM/PM revealed nothing. The police were unable to find any shell casings, projectiles, bullet holes, ¹ ricochet marks, or broken glass at the AM/PM. Witnesses testified that none of the bullets fired at the victims collided with the gas pumps, Darrett's car, or anything else. The handgun allegedly used by Walker was never found.

Walker was charged with three counts of attempted murder with the use of a deadly weapon. Walker was tried before a jury for the attempted murders of Darrett, Hines, and Synagogue, and on September 6, 1991, the jury returned verdicts of guilty as to all three counts.

Discussion

At trial, Walker requested that the district court give a jury instruction allowing the jury to find Walker guilty of the lesser included or lesser related offense of assault with a deadly weapon if the jury felt the facts did not support the attempted murder charges. The district court refused to give the instruction, stating that "[t]here is no lesser included offense for an attempt to kill" and that the instruction was not consistent with the defense's theory of the case. Walker contends the district court erred in refusing to give the instruction, and we agree.

In Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989), we stated Instructions on lesser offenses are required because a procedure which affords the trier of fact no option other than conviction or acquittal when the evidence shows that the defendant is guilty of some crime but not necessarily the one charged, increases the risk that the defendant may be convicted notwithstanding the obligation to acquit if guilt is not proven beyond a reasonable doubt. The pressures which create that risk thus affect the reliability of the fact finding process and thereby undermine the reasonable doubt standard.

Moore, 105 Nev. at 383, 776 P.2d at 1238 (quoting People v. Geiger, 35 Cal.3d 510, 199 Cal.Rptr. 45, 50, 674 P.2d 1303, 1307-08 (1984)). However, a defendant is not entitled to present to the jury "a shopping list of alternatives to the crimes charged." Moore, 105 Nev. at 383, 776 P.2d at 1239. A defendant may only demand a jury instruction on a lesser included offense when the following conditions are satisfied: (1) the offense for which the instruction is sought is a lesser included offense of the charged offense, (2) the defendant's theory of defense is consistent with a conviction for the lesser included offense, and (3) evidence of the lesser offense exists. See Lord v. State, 107 Nev. 28, 36, 806 P.2d 548, 553 (1991); Moore, 105 Nev. at 383, 776 P.2d at 1239; Ruland v. State, 102 Nev. 529, 531, 728 P.2d 818, 819 (1986); Kiper v. State, 98 Nev. 593, 595, 655 P.2d 526, 526-27 (1982); Block v. State, 95 Nev. 933, 936, 604 P.2d 338, 340-41 (1979).

(1) Lesser included offense.

The district court found that assault with a deadly weapon is not a lesser included offense of attempted murder with the use of a deadly weapon. This was clear error.

In Crawford v. State, 107 Nev. 345, 811 P.2d 67 (1991), we stated that a crime is a lesser included offense if the greater offense cannot be committed without committing the lesser offense. Id. at 351, 811 P.2d at 71; see Block, 95 Nev. at 936, 604 P.2d at 340-41. "Attempt" is defined, in part, in NRS 193.330 as "[a]n act done with intent to commit a crime, and tending but failing to accomplish it." Attempted murder requires a specific intent to kill the person or persons against whom the acts in question are directed. Graves v. State, 82 Nev. 137, 142, 413 P.2d 503, 506 (1966). "Assault" is defined in NRS 200.471 as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." The only difference in this case, then, between attempted murder with the use of a deadly weapon and assault with a deadly weapon is whether at the time of the shooting Walker intended to kill the three victims or whether he intended merely to injure them. Since an intent to injure is a subset of, and necessarily included in, an intent to kill, and since one cannot intend to kill without also intending to injure, we conclude that assault with a deadly weapon is a lesser included offense of attempted murder with the use of a deadly weapon.

This conclusion comports with our opinion in Ruland v. State, 102 Nev. 529, 728 P.2d 818 (1986). In Ruland, the defendant was convicted of attempted murder and resisting arrest. Id. at 530, 728 P.2d at 818. The defendant claimed the trial court erred in refusing to instruct the jury on a number of lesser included offenses relating to assault. Id. at 530, 728 P.2d at 819. We stated, "The first lesser-included offense instructions which [the defendant] requested can be characterized as 'lesser assaults.' An assault with a dangerous weapon or an assault with intent to kill are assaults of a degree and severity less than that of attempted murder." Id. at 531, 728 P.2d at 819. While we determined that the defendant in Ruland was not entitled to the assault instructions because the defendant testified that the gun accidently discharged, and therefore the assault instructions were inconsistent with the defendant's theory of the case, we nonetheless recognized assault with a deadly weapon as a lesser included offense of attempted murder. Id. at 531-32, 728 P.2d at 819-20; see Graves v. State, 84 Nev. 262, 265, 439 P.2d 476, 477, cert. denied, 393 U.S. 919, 89 S.Ct. 250, 21 L.Ed.2d 206 (1968) ("assault with intent to kill may be a lesser included offense of attempted murder if there is evidence of assault"); Graves v. Young, 82 Nev. 433, 438, 420 P.2d 618, 620-21 (1966) ("[t]here is a question whether under prosecution for attempted murder, assault with intent to kill may be a lesser included offense. If there is evidence of an assault we hold that it would be.... If there were no evidence of an assault, it would not be a lesser included offense. Attempted murder can be committed with or without assault").

(2) Consistency with defendant's theory of defense.

To be entitled to an instruction as to a lesser included offense, the defendant's theory of defense must be consistent with a conviction for the lesser offense. See Moore, 105 Nev. at 382, 776 P.2d at 1238 ("Nevada law requires jury instructions on defendant's theory...