130 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
KEONIS DAVIS,
Appellant,
vs.
No.
5"° P ILED
THE STATE OF NEVADA, MAR 27 2014
Respondent. T_QAQIE K. LINDEMAN
(ILE
BY
CHIEfF DEPritlrof.
Appeal from a judgment of conviction, pursuant to &..) jury
verdict, of battery with the use of a deadly weapon resulting in substantial
bodily harm. Eighth Judicial District Court, Clark County; Valerie Adair,
Judge.
Reversed and remanded.
Legal Resource Group, LLC, and T. Augustus Claus, Henderson,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and Agnes Lexis, Deputy District Attorney, Clark County,
for Respondent.
BEFORE GIBBONS, C.J., DOUGLAS and SAITTA, JJ.
OPINION
By the Court, GIBBONS, C.J.:
In this opinion, we address justifiable battery and the exercise
of self-defense that results in the infliction of bodily harm but not death.
Appellant Keonis Davis shot Damien Rhodes in the chest during an
altercation. Rhodes survived, and the State charged Davis with one count
of attempted murder with use of a deadly weapon and one count of battery
with use of a deadly weapon. At trial, the district court denied two of
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Davis' proposed instructions on justifiable battery, which were both based
on a theory of self-defense. The jury found Davis guilty of battery with use
of a deadly weapon resulting in substantial bodily harm. Davis now
appeals, arguing that the district court erred in denying his proposed
instructions regarding self-defense that were accurate statements of
Nevada law. We agree, and because the error was not harmless, we
reverse Davis' conviction and remand this case to the district court for a
new trial.
FACTS AND PROCEDURAL HISTORY
Davis and Rhodes had been close friends, but that friendship
deteriorated after Rhodes "took" a gun charge for Davis, incurring a
significant fine. Police found the gun during a traffic stop of a vehicle
driven by Rhodes. Davis was riding in the backseat and had possession of
the gun when the vehicle was stopped, but he passed the gun to another
passenger who put it in the front dash. The police arrested Rhodes and
the other passenger in connection with the gun; Davis was not arrested.
Rhodes subsequently negotiated a plea deal that resulted in four days in
jail and a $2,000 fine. After serving the jail time, Rhodes encountered
Davis and asked him to reimburse him for the $2,000 fine. However,
Davis responded that he did not have the money. As a result, Davis stated
that Rhodes challenged him to a fistfight, but it was broken up before any
physical altercation occurred. Davis heard from other individuals that
Rhodes wanted to physically harm him. He knew that Rhodes had a short
temper because he previously witnessed Rhodes violently beat another
person. Davis also knew that Rhodes carried a gun and previously
witnessed Rhodes shoot at another person.
About five months later, Davis was at the Rancho Mesa
Apartments when he encountered Rhodes again Davis and Rhodes have
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different versions of the encounter. According to Davis, he tried to shake
Rhodes' hand, but Rhodes refused and asked Davis where the $2,000 was.
When Davis responded that he did not have the money, Rhodes attempted
to instigate a fight. Davis informed Rhodes that he was armed and did not
want to fight. Rhodes implied that he had a gun as well. Davis tried to
walk away, but Rhodes ran after him and swung his fist at Davis, clipping
the side of his head. Davis pushed Rhodes away to get some space.
Rhodes again attempted to attack Davis. Davis started backing up while
pulling his gun out. Davis tried to pull the slide of the handgun to
chamber the round, but the gun jammed. Rhodes did not retreat. Davis
tried to unjam the gun, but it fired and the bullet struck Rhodes in the
chest. Davis fled the scene.
Rhodes admitted that he instigated the verbal argument with
Davis but claimed that Davis initiated the physical altercation when he
shot Rhodes in the chest. While on the ground, Rhodes claimed he heard a
loud and clear "click click" noise. Two other witnesses also testified
regarding the shooting, one whose story corresponded with Davis' account
and the other whose story mirrored Rhodes' version. The latter testified
that he saw Davis stand over Rhodes after shooting him and attempt to
pull the trigger two more times, but the gun jammed. Police recovered two
unspent .22 cartridges and one .22 cartridge case from the scene.
However, based on the evidence available, the State's firearms expert
could not discern whether the gun jammed before or after the single bullet
was successfully fired. Rhodes survived the shooting.
During his six-day jury trial, Davis proposed two jury
instructions regarding justifiable infliction of bodily harm. The district
court recognized that Davis was entitled to self-defense instructions but
rejected his proposed instructions as confusing. Although the district
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court acknowledged that the proposed instructions mirrored Nevada's self-defense statutory language nearly verbatim, it concluded that the statutes
did not accurately reflect Nevada law. Therefore, the district court only
provided the instructions this court set forth in Bunion.' The jury found
'The district court provided instructions that were almost verbatim
from Bunion v. State, 116 Nev. 1041, 1051-52,
13 P.3d 52, 59 (2000).
These instructions expressly addressed murder and attempted murder.
Jury Instruction No. 14 read:
The killing or attempted killing of another
person in self-defense is justified and not unlawful
when the person who kills or attempts to kill
actually and reasonably believes:
1[.] That there is imminent danger that the
assailant will either kill him or cause him great
bodily injury; and
2[.] That it is absolutely necessary under
the circumstances for him to use, in self-defense,
force or means that might cause the death of the
other person, for the purpose of avoiding death or
great bodily injury to himself.
A bare fear of death or great bodily injury is
not sufficient to justify a killing or attempted
killing. To justify the taking of a life of another in
self-defense, the circumstances must be sufficient
to excite the fears of a reasonable person placed in
a similar situation. The person killing or
attempting to kill must act under the influence of
those fears alone and not in revenge.
Jury Instruction No. 15 read:
Actual danger is not necessary to justify a
killing or attempted killing in self[-]defense. A
person has a right to defend from apparent danger
to the same extent as he would from actual
danger. The person killing or attempted killing is
justified if:
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Davis guilty of battery with use of a deadly weapon resulting in
substantial bodily harm. Davis now appeals.
DISCUSSION
The district court erred in refusing to give Davis' proposed justifiable
battery instructions
Davis contends that the district court committed reversible
error by rejecting his proposed instructions on justifiable infliction of
bodily harm because they were accurate statements of law and supported
his theory of defense. The State argues that the district court properly
denied Davis' proposed instructions because (1) there was no evidence to
support a self-defense instruction, (2) the instructions misstated the law
...continued
1. He is confronted by the appearance of
imminent danger which arouses in his mind an
honest belief and fear that he is about to be killed
or suffer great bodily injury; and
2. He acts solely upon these appearances
and his fear and actual beliefs; and
3. A reasonable person in a similar
situation would believe himself to be in like
danger.
The killing or attempted killing is justified
even if it develops afterward that the person
killing or attempted killing was mistaken about
the danger.
Jury Instruction No. 16 read:
If evidence of self-defense is present, the
State must prove beyond a reasonable doubt that
the defendant did not act in self-defense. If you
find that the State has failed to prove beyond a
reasonable doubt that the defendant did not act in
self-defense, you must find the defendant not
guilty.
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because deadly force cannot be used in circumstances where no threat of a
felony involving substantial bodily harm or death exists, and (3) Davis'
theory of self-defense was substantially covered by the given instructions.
We agree with Davis.
"The district court has broad discretion to settle jury
instructions." Crawford v. State, 121 Nev. 744, 748,
121 P.3d 582, 585
(2005). We review a district court's denial of proposed jury instructions for
abuse of discretion or judicial error. Id. "An abuse of discretion occurs if
the district court's decision is arbitrary or capricious or if it exceeds the
bounds of law or reason." Jackson v. State, 117 Nev. 116, 120,
17 P.3d
998, 1000 (2001). However, we review whether an instruction was an
accurate statement of law de novo. Funderburk v. State, 125 Nev. 260,
263,
212 P.3d 337, 339 (2009).
Davis presented evidence of self-defense
The State argues that Davis was not entitled to self-defense
instructions because there was no competent evidence of self-defense. We
disagree.
Death does not have to be the result for self-defense to be
applicable. See Rosas v. State, 122 Nev. 1258, 1262,
147 P.3d 1101, 1104
(2006) (concluding that the district court erred in rejecting a jury
instruction on self-defense for defendant charged with battery upon a
police officer); Barone v. State, 109 Nev. 778, 779-81,
858 P.2d 27, 28-29
(1993) (district court committed reversible error by not instructing on the
burden of proof for self-defense when defendant was charged with battery
with a deadly weapon). Specifically, NRS 200.275 contemplates self-defense applying in contexts outside of homicide, as it unambiguously
provides that "[in addition to any other circumstances recognized as
justification at common law, the infliction or threat of bodily injury is
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justifiable, and does not constitute mayhem, battery or assault, if done
under circumstances which would justify homicide" (emphases added); see
also NRS 193.230 ("Lawful resistance to the commission of a public offense
may be made . . . [b]y the party about to be injured."); NRS 193.240
("Resistance sufficient to prevent the offense may be made by the party
about to be injured. . . [t]o prevent an offense against his or her
person .. ."). These provisions ensure that persons who stop short of
killing in self-defense are afforded the same defenses as those who
actually kill their assailants.
A defendant "has the right to have the jury instructed on [his
or her] theory of the case as disclosed by the evidence, no matter how weak
or incredible that evidence may be." Crawford, 121 Nev. at 751,
121 P.3d
at 586 (internal quotations omitted); see Harris v. State,
106 Nev. 667,
670,
799 P.2d 1104, 1105-06 (1990) (concluding that the district court
erred by refusing to approve a self-defense instruction when the defendant
testified that the victim attacked and attempted to rob him); Mirin v.
State, 93 Nev. 57, 59,
560 P.2d 145, 146 (1977) (concluding that the
district court did not err by refusing to approve a self-defense instruction
when the defendant was the established pursuer and aggressor).
Davis' theory of the case was that he was afraid that Rhodes
was going to shoot him or beat him to death and he shot Rhodes to protect
himself During trial, Davis testified that: (1) he had previously witnessed
Rhodes violently punch and kick another person until police arrived, (2)
Rhodes previously challenged Davis to a fistfight, (3) Davis heard from
others that Rhodes wanted to kill him, (4) Davis knew that Rhodes carried
a gun, (5) Rhodes started the argument, (6) Rhodes implied he was
carrying a gun the day of the shooting, (7) Rhodes instigated the fight with
Davis even though Davis informed him that he was armed and tried to
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walk away, and (8) Rhodes punched Davis in the head. • Davis also opined
that "Mist fights kill people too." Davis' testimony supported his self-defense theory that he reasonably believed that he was in imminent
danger from Rhodes and that the use of force was necessary under the
circumstances to avoid death or great bodily injury to himself. See
Runion, 116 Nev. at 1051,
13 P.3d at 59. Based on this evidence, we
conclude that Davis was entitled to self-defense instructions. See
Williams v. State, 99 Nev. 530, 531,
665 P.2d 260, 261 (1983) ("[e]vidence
from the defendant alone need not be supported by other independent
evidence" to entitle him to jury instructions regarding his theory of the
case).
While the State asserts that Davis was not allowed to claim
self-defense because Rhodes' conduct did not amount to a felony, we
conclude that this argument lacks merit for two reasons. First, a person is
allowed to use "Hesistance sufficient . . . [t] o prevent an offense against
his or her person," and, if the resistance is homicide, it is justifiable if "the
circumstances were sufficient to excite the fears of a reasonable person."
NRS 193.240; NRS 200.130. Second, whether Davis reasonably believed
he was in fear of death or great bodily harm, or whether he was defending
against an attempt by Rhodes to commit a felony, was a question of fact
for the jury.
Davis' proposed jury instructions did not misstate Nevada law
The district court recognized Davis' entitlement to self-defense
instructions, but provided the instructions from our opinion in Runion. 2
We specifically required in Bunion that "[tate district courts should
2
tailor instructions to the facts and circumstances of a case, rather than
simply relying on 'stock' instructions." 116 Nev. at 1051,
13 P.3d at 59.
We did not intend the instructions set forth in Bunion to become "stock"
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The Bunion case put the issue of self-defense for attempted murder in
front of the jury. But here, attempted murder and battery were both
before the jury. The district court denied two proposed defense
instructions that would have put the specific issue of justifiable battery in
front of the jury. Davis' first proposed instruction read:
The infliction of bodily injury or the threat of
bodily injury is justifiable, and does not constitute
a public offense, if done under circumstances
which would justify homicide.
The second proposed instruction read:
Justifiable homicide is the killing of a
human being in necessary self-defense, or in
defense of habitation, property or person, against
an individual who manifestly inten[d]s, or
endeavors, by violence or surprise, to commit a
felony.
Homicide is also justifiable when committed:
— In the lawful defense of the slayer or of
any other person in his presence or
company, when there is reasonable ground
to apprehend a design on the part of the
person slain to commit a felony or to do
some great personal injury to the slayer or
to any such person, and there is imminent
danger of such design being accomplished[;]
— In the actual resistance of an attempt to
commit a felony upon the slayer[; on
...continued
instructions, but provided them as samples only. Id. Thus, when bodily
injury (and not death) is the resulting harm to the victim, or when battery
(and not killing) is the intended action by the defendant, the sample
instructions should be reworded to account for those factual changes.
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— In all other instances which stan[di upon
the same footing of reason and justice as
those enumerated above.
The district court rejected these instructions following an extensive
discussion regarding the language in the second instruction dealing with a
defendant's "reasonable ground to apprehend a design on the part of the
person slain to commit a felony or to do some great personal injury."
Engaging in a hypothetical discussion beyond the facts of Davis' case, the
district court struggled with the broad "commit a felony" language and
whether someone could shoot a person who is attempting to commit, for
example, felony larceny. The district court ultimately concluded that
while the proposed instructions were consistent with Nevada's justifiable
homicide statutes, the statutes were overbroad and did not reflect the true
state of the law because deadly force is not justifiable when exercised to
prevent nonviolent felonies. As a result, the district court refused to give
Davis' requested instructions.
The State argues that the district court properly rejected
Davis' proposed instructions because deadly force cannot be used in
response to all felonies, particularly in circumstances where no threat of a
felony involving substantial bodily harm or death exists. We note that the
two proposed instructions are near verbatim copies of NRS 200.120(1), 3
3 NRS 200.120(1) states, in pertinent part:
1. Justifiable homicide is the killing of a
human being in necessary self-defense, or in
defense of habitation, property or person, against
one who manifestly intends or endeavors, by
violence or surprise, to commit a felony. . . .
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NRS 200.150, 4 NRS 200.160,5 and NRS 200.275. 6 The plain language of
these statutes does not differentiate between the types of felonies from
which a person may defend himself.
However, regardless of the statutes' language, this case does
not present the question of whether battery is justifiable when used to
defend against a nonviolent felony, and the district court's reliance on the
proposed hypothetical was outside the facts of this case. This case did not
involve a nonviolent felony such as larceny; Davis anticipated that Rhodes
was going to violently attack him, causing him bodily injury or death if he
4 NRS 200.150 reads:
All other instances which stand upon the same
footing of reason and justice as those enumerated
shall be considered justifiable or excusable
homicide.
5 NRS 200.160 reads, in pertinent part:
Homicide is also justifiable when committed:
1. In the lawful defense of the
slayer . . . when there is reasonable ground to
apprehend a design on the part of the person slain
to commit a felony or to do some great personal
injury to the slayer . . . and there is imminent
danger of such design being accomplished; or
2. In the actual resistance of an attempt to
commit a felony upon the slayer. . . .
6 NRS 200.275 reads:
In addition to any other circumstances recognized
as justification at common law, the infliction or
threat of bodily injury is justifiable, and does not
constitute mayhem, battery or assault, if done
under circumstances which would justify
homicide.
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did not act. Thus, under Davis' theory of the case, the second proposed
instruction allowed the jury to find that Davis defended himself against
Rhodes, "who manifestly inten[dedl, or endeavor [ed] , by violence or
surprise, to commit a felony" or against the imminent threat of "some
great personal injury."
We note that, to assuage its concerns that the unqualified
reference to "commit a felony" in the second proposed instruction might
confuse the jury, the district court could have omitted the "commit a
felony" language in the second part of the second instruction. See Runion,
116 Nev. at 1050-51,
13 P.3d at 58 (allowing district courts to depart from
repeating the exact statutory language in a jury instruction and instead
encouraging the alteration of words to tailor the instruction to the facts of
the case). Such an instruction would have allowed the jury to consider
justifiable battery by determining (1) whether Rhodes' actions constituted
an intent, by surprise or violence, to commit a felony; and (2) whether
"there [was] reasonable ground to apprehend a design on the part of
[Rhodes] . . . to do some great personal injury to [Davis]." See Crawford,
121 Nev. at 754-55,
121 P.3d at 589 ("[T]he district court is ultimately
responsible for not only assuring that the substance of the defendant's
requested instruction is provided to the jury, but that the jury is otherwise
fully and correctly instructed. In this, the district court may either assist
the parties in crafting the required instructions or may complete the
instructions sua sponte.").
Davis' interpretation was legally correct and in accord with
current statutes; justifiable battery is the battery of a human being, which
does not result in death and is necessary for self-defense against one who
manifestly intends to commit a felony by using violence or surprise, or
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when there is reasonable ground to apprehend a design on the part of the
person injured to do some great personal injury to the person inflicting the
injury. NRS 200.120; NRS 200.275.
Davis' justifiable battery theory was not substantially covered by
other instructions
"[The district court may refuse a jury instruction on the
defendant's theory of the case which is substantially covered by other
instructions." Runion, 116 Nev. at 1050,
13 P.3d at 58.
The State argues that the language in the jury instructions
regarding "attempted killing" included the conduct that formed the basis
for the battery charge and thus Davis did not need a separate self-defense
instruction focusing on battery. The State contends that the factual basis
of the attempted murder charge was that Davis unlawfully attempted to
shoot Rhodes more than once, which was also the basis for the battery
charge.
But the State's argument ignores the language in the
information. Davis' alleged attempt to shoot Rhodes more than once was
indeed the basis of the attempted murder charge. However, the State
pleaded the battery charge as arising when Davis fired the gun at Rhodes
and struck him in the chest. If the jury believed that Davis meant to shoot
Rhodes in self-defense, but not kill him, then the Runion instructions were
insufficient because they do not address justifiable battery, only justifiable
killing or attempted killing The first proposed instruction would have
notified the jury that infliction of bodily injury in self-defense does not
constitute a battery. See Williams, 99 Nev. at 531,
665 P.2d at 261. The
second proposed instruction would have clarified the circumstances that
constitute justifiable homicide in connection with the first instruction,
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which states that battery is justified "if done under circumstances which
would justify homicide." Therefore, Davis' proposed instructions were not
duplicative of those given by the district court and included unique
concepts that should have been considered by the jury.
The district court's rejection of Davis' proposed jury instructions was
not harmless and constitutes reversible error
"[T]rial error [s]' are subject to harmless-error review because
these errors 'may. . be quantitatively assessed in the context of other
evidence presented in order to determine whether [they were] harmless
beyond a reasonable doubt." Patterson v. State, 129 Nev. „ 298
P.3d 433, 439 (2013) (quoting Arizona v. Fulminante,
499 U.S. 279, 307-08
(1991)). An error is harmless if this court determines beyond a reasonable
doubt that the error did not contribute to the defendant's conviction.
Hernandez v. State, 124 Nev. 639, 653,
188 P.3d 1126, 1136 (2008).
As discussed above, the district court's rejection of Davis'
proposed jury instructions was not harmless because we cannot conclude
beyond a reasonable doubt that the district court's rejection of these
instructions did not contribute, at least partially, to Davis' conviction. The
proposed instructions would have informed the jury about justifiable
battery because the approved self-defense instructions only referenced
"killing" and "attempted killing." Additionally, it is not clear whether the
jury reached its verdict because (1) the jurors found that Davis acted in
self-defense on the attempted murder charge because that was the only
crime for which they were provided self-defense instructions; or (2) the
jurors rejected Davis' self-defense theory regarding battery, but found he
lacked the specific intent to kill necessary for the attempted murder
charge. Therefore, we conclude that the district court's error was not
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harmless and thus reversible. 7 Williams, 99 Nev. at 531,
665 P.2d at 261
("If a defense theory of the case is supported by some evidence which, if
believed, would support a corresponding jury verdict, failure to instruct on
that theory totally removes it from the jury's consideration and constitutes
reversible error.").
CONCLUSION
NRS 200.275 unequivocally provides that battery is justifiable
in self-defense under the same conditions that would justify homicide. By
refusing to provide an instruction to that effect, we conclude that the
district court committed reversible error. Accordingly, we reverse Davis'
conviction for battery with a deadly weapon causing substantial bodily
harm and remand this case to the district cantrt Sara new tria1. 8
C.J.
GibboKs
We con-cur:
J.
Do u la-sm
/
1‘11 J.
Saitta
7 In future cases involving justifiable-battery defenses, we strongly
encourage a separate instruction that notifies the jury of the concepts set
forth in NRS 200.120(1), NRS 200.150, NRS 200.160, and NRS 200.275.
8 We have considered the parties' remaining arguments, including
the State's argument that Davis was not entitled to self-defense
instructions at all and that the jury must have found by its verdict that
Davis was acting with cold-blooded intent to kill, and conclude they are
without merit.
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