CARDOVA v. State

6 P.3d 481
CourtNevada Supreme Court
DecidedAugust 21, 2000
Docket33873
StatusPublished

This text of 6 P.3d 481 (CARDOVA 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.

Bluebook
CARDOVA v. State, 6 P.3d 481 (Neb. 2000).

Opinion

6 P.3d 481 (2000)

Clyde CORDOVA, Jr., Appellant,
v.
The STATE of Nevada, Respondent.

No. 33873.

Supreme Court of Nevada.

August 21, 2000.

*482 John P. Calvert, Reno, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.

BEFORE MAUPIN, SHEARING and BECKER, JJ.

OPINION

PER CURIAM:

A jury found appellant Clyde Cordova, Jr., guilty of second-degree murder with the use of a deadly weapon. Cordova contends that the jury instruction defining implied malice was erroneous, the enhancement for use of a deadly weapon does not apply in this case, and a witness for the State improperly testified regarding Cordova's veracity.

FACTS

Early in the morning on March 11, 1997, there was a knock at the door of Richard Harding's apartment on Kietzke Avenue in Reno. Harding was present with other residents of the apartment and some visitors. Harding approached the door and asked, "Who is it?" Several bullets were then fired through the door. Two struck Harding, and he died within a short time. Police recovered nine nine-millimeter shell casings outside the apartment.

A number of people had visited the apartment that night, including Cordova, and alcohol and marijuana had been consumed. The next day, after questioning Cordova, police obtained a warrant and searched the apartment of Damian Hodson. They found three handguns, including the nine-millimeter pistol that was used to kill Harding. Hodson told police that he had loaned the gun to Cordova the night before.

After further questioning, Cordova confessed to police that he had obtained the pistol from Hodson, gone to the victim's apartment, knocked on the door, and then fired through it. Cordova had been drinking alcohol and felt that the occupants of the apartment had insulted him earlier.

The jury found Cordova guilty of second-degree murder with the use of a deadly weapon. The district court entered judgment accordingly and sentenced him to two consecutive terms of life imprisonment with the possibility of parole.

DISCUSSION

The jury instruction defining implied malice

Jury instruction number 14 stated: "Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." Cordova claims that this instruction was improper because the word "shall" creates an impermissible mandatory presumption, relieving the State of its burden of proof.

Cordova failed to object to the instruction below. Failure to object during trial generally precludes appellate consideration of an issue. Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997). Despite such failure, this court has the discretion *483 to address the assigned error if it was plain and affected Cordova's substantial rights. See NRS 178.602 ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). No such error occurred here. The instruction uses the language provided in NRS 200.020(2), and this court has upheld use of the instruction where the jury is properly instructed on the presumption of innocence and the State's burden to prove beyond a reasonable doubt every element of the crime charged. See Doyle v. State, 112 Nev. 879, 900-02, 921 P.2d 901, 915-16 (1996). The jury was so instructed here. Therefore, no error occurred at all.

We take this opportunity, however, to clarify that nothing prevents district courts from instructing juries that malice "may be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart."[1] The legislature has not prohibited any definition of malice other than that set forth in NRS 200.020, as it has done in regard to defining reasonable doubt. See NRS 175.211(2) (providing that no definition of reasonable doubt other than the one in NRS 175.211(1) may be given to juries). Moreover, the use of "may" in the instruction is preferable because it eliminates the issue of a mandatory presumption, raised by Cordova and many appellants challenging murder convictions, and avoids the concerns addressed in Doyle, which prompted this court to look to other instructions to determine if the State's burden of proof had been properly articulated. See Byford v. State, 116 Nev. ____, ____ n. 11, 994 P.2d 700, 722 n. 11 (2000) (Maupin, J., concurring).

Enhanced punishment for use of a deadly weapon

Cordova argues that the sentence enhancement imposed for his use of a deadly weapon was improper because use of a deadly weapon was a necessary element of the crime he committed. He made this argument at his sentencing, and the district court rejected it. We conclude that the district court did not err.

NRS 193.165(1) provides for imposition of an additional, consecutive prison term equal to the term prescribed for a crime when a deadly weapon is used to commit the crime. However, pursuant to NRS 193.165(3), this provision does not apply where the use of a deadly weapon "is a necessary element of such crime."

The jury in this case was instructed that if it found

beyond a reasonable doubt that the Defendant committed the offense of shooting or aiding or abetting the shooting by another into an occupied dwelling, and that it is a felony dangerous to human life, then you may return a verdict of guilty on the felony offense of Murder of the Second Degree.[2]

The jury returned a special verdict form showing that it found Cordova guilty of second-degree murder in the commission of a dangerous felony.

Because the jury found that he committed felony murder based on the predicate felony of shooting into an occupied dwelling, Cordova *484 asserts that use of a deadly weapon was an element of the crime he committed. Therefore, he concludes, NRS 193.165(3) precludes the deadly weapon enhancement in his case.

The California Supreme Court considered this issue in People v. Hansen, 9 Cal.4th 300, 36 Cal.Rptr.2d 609, 885 P.2d 1022 (1994). In that case, the appellant was convicted of second-degree murder based on felony murder, the predicate felony being discharging a firearm at an inhabited dwelling.

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Cordova v. State
6 P.3d 481 (Nevada Supreme Court, 2000)

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