Allen v. State
This text of 632 P.2d 1153 (Allen v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
OPINION
By the Court,
This is an appeal from the judgment of conviction of the defendant. Mr. Allen was adjudged guilty of second degree murder and was sentenced to the Nevada State Prison.
Defendant has raised several issues on appeal, the principal issue being that the trial court erred in not instructing the jury on self-defense. We agree and reverse the judgment solely on that issue and for that reason have not discussed the other issues raised by appellant.
The facts of this case show that at about 11:00 p.m. on May 29, 1978, an argument started between defendant-appellant, [396]*396Ronald Durane Allen, a resident of the Evergreen Apartments, and his next-door neighbor, Sharon Diane Williams. As the argument grew more heated, the crowd in front of the apartments occupied by Allen and Williams grew and included, among others, Raymond Williams, Sharon’s husband; Carrie Morris, Allen’s housemate; Dorothy Lee Cooper, a neighbor; Vance Shelton, a friend of Williams; and Robert Duane Williams, the victim and Raymond Williams’ brother.
As the argument grew to a climax, Allen went into his apartment and returned to the crowd. Thereafter blows were exchanged between Sharon Williams, Allen and Raymond Williams. Allen testified that Sharon slapped him first and he returned the blow, after which Raymond Williams began punching him. This testimony was refuted by the Williamses. After the fight began, Robert Duane Williams jumped or slid off the car on which he was sitting, the car being parked immediately in front of the apartment building. Thereafter the testimony again becomes confused and conflicting.
Several witnesses, i.e., Sharon Williams and Raymond Williams, testified that after the fight began, Wayne, the victim, just slid off the car onto the ground without interfering in any way with defendant. Several other witnesses testified differently.2
[397]*397Review of the pertinent portions of the testimony indicates that the evidence was in conflict as to who was the actual aggressor and what the victim actually did to the defendant. The jury could have found from the evidence that the victim jumped on the defendant’s back and that the defendant [398]*398believed that he was being attacked with a knife, and therefore that the defendant was acting in self-defense. The jury therefore should have been instructed on self-defense, as requested by counsel at trial.
In every criminal case, a defendant is entitled to have the jury instructed on any theory of defense that the evidence discloses, however improbable the evidence supporting it may be. Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Barger v. State, 81 Nev. 548, 407 P.2d 584 (1965); State of Nevada v. Millain, 3 Nev. 409 (1867).
It makes no difference which side presents the evidence, as the trier of the fact is required to weigh all of the evidence produced by either the state or the defense before arriving at a verdict. The test for the necessity of instructing the jury is whether there is any foundation in the record for the defense theory. See United States v. Garcia, 452 F.2d 419 (5th Cir. 1971); Brooke v. United States, 385 F.2d 279 (D.C. Cir. 1967); People v. McEvoy, 337 N.E.2d 437 (Ill.App. 1975); Thompson v. State, 521 S.W.2d 621 (Tex.Crim. 1974); cf. State v. Weaver, 217 S.E.2d 31 (S.C. 1975). The testimony of the defendant is not the determining factor as to what legal defenses may be shown by the evidence; such a rule would improperly remove from the jury the question of the defendant’s credibility. Strauss v. United States, 376 F.2d 416 (5th Cir. 1967); see also State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962).
Under the instant set of facts, the evidence warranted instruction on self-defense, and the failure to so instruct was error. The judgment of conviction is reversed and the case is remanded for a new trial.
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Cite This Page — Counsel Stack
632 P.2d 1153, 97 Nev. 394, 1981 Nev. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-state-nev-1981.