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131 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
PATRICK NEWELL, No. 66552
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. DEC 2 2015
TRACE K. LII:DEMAN
CLERK OF SUPREME COURT
EY ___SLYnta:14___
DEPUTY CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of battery with the use of a deadly weapon and attempted assault
with the use of a deadly weapon. Eighth Judicial District Court, Clark
County; Jerome T. Tao, Judge.
Affirmed.
Philip J. Kohn, Public Defender, and Howard Brooks and Scott L. Coffee,
Deputy Public Defenders, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens and Jonathan VanBoskerck, Chief
Deputy District Attorneys, and Ryan J. MacDonald, Deputy District
Attorney, Clark County,
for Respondent.
BEFORE SAITTA, GIBBONS and PICKERING, JJ.
OPINION
By the Court, SAITTA, J.:
The plain language of NRS 200.160 states that homicide is
justified in response to a reasonable apprehension of the commission of a
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felony or in the actual resistance of an attempted felony, but it does not
specify the type of felony. This opinion addresses whether there is any
limitation as to the use of deadly force in response to the commission of a
felony under NRS 200.160. We extend our holding in State v. Weddell, 118
Nev. 206,
43 P.3d 987 (2002), to require that the use of deadly force in
response to a felony is only justified when the person poses a threat of
serious bodily injury; otherwise, the amount of force used must be
reasonable and necessary under the circumstances.
FACTUAL AND PROCEDURAL HISTORY
In 2012, appellant Patrick Newell sprayed Theodore Bejarano
with gasoline and lit Bejarano on fire during an altercation at a gas
station. Newell also threatened Bejarano with a small pocket knife,
although Bejarano could not later recall this incident. Newell was charged
with Count 1: attempted murder with the use of a deadly weapon; Count
2: battery with the use of a deadly weapon; Count 3: assault with the use
of a deadly weapon; and Count 4: performance of an act in reckless
disregard of persons or property. Count 3 was later amended to attempted
assault with the use of a deadly weapon.
At trial, Newell claimed that his actions were a justifiable
battery because he reasonably believed that Bejarano was committing
felony coercion against him at the time of the incident. Newell proposed
the following instruction on justifiable battery:
Justifiable battery is the battery of a human
being when there is reasonable ground to
apprehend a design on the part of the person
battered to commit a felony and there is
[imminent] danger of such a design being
accomplished. This is true even if deadly force is
used. . . .
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The district court, over Newell's objection, added the following language to
the instruction based on our decision in State v. Weddell, 118 Nev. 206,
43
P.3d 987 (2002):
The amount of force used to effectuate the battery
must be reasonable and necessary under the
circumstances. Deadly force cannot be used
unless the person battered poses a threat of
serious bodily injury.
The jury found Newell guilty of Counts 2, 3, and 4. Count 4
was later dismissed by the district court. On appeal, Newell argues that
the district court abused its discretion by giving a jury instruction that
was an incorrect statement of Nevada law and that his conviction for
attempted assault is legally impossible.
DISCUSSION
The district court did not abuse its discretion in giving the jury instruction
Newell argues that the plain language of NRS 200.160 does
not require the amount of force used in defense of a felony to be reasonable
and necessary or that the person battered pose a threat of serious bodily
injury in order for deadly force to be used. Therefore, he contends that the
district court abused its discretion by adding those requirements to the
instruction on justifiable battery.
"The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Crawford v. State, 121 Nev. 744,
748,
121 P.3d 582, 585 (2005). Whether an instruction was an accurate
statement of law is reviewed de novo. Davis v. State, 130 Nev., Adv. Op.
16, 321 P.3d 867, 871 (2014).
"[W]hen the words of a statute are clear and unambiguous,
they will be given their plain, ordinary meaning," and we need not look
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beyond the language of the statute. State v. Friend, 118 Nev. 115, 120,
40
P.3d 436, 439 (2002). However, when the "literal, plain meaning
interpretation" leads to an unreasonable or absurd result, this court may
look to other sources for the statute's meaning. Id. at 120-21,
40 P.3d at
439.
The plain meaning of the justifiable battery statutes do not require
that the amount of force used be reasonable and necessary or in
response to a threat of serious bodily injury
Battery is justified in any circumstance that justifies
homicide. NRS 200.275. Justifiable homicide is defined by NRS 200.120
through NRS 200.190. At issue in the current case is NRS 200.160, which
provides for "[ahlditional cases of justifiable homicide." NRS 200.160
states that homicide is justifiable when committed
1. In the lawful defense of the slayer, or his
or her husband, wife, parent, child, brother or
sister, or of any other person in his or her 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; or
2. In the actual resistance of an attempt to
commit a felony upon the slayer, in his or her
presence, or upon or in a dwelling, or other place
of abode in which the slayer is.
The plain language of NRS 200.160 does not require that the
amount of force used be reasonable and necessary in order to be justified
or state that deadly force may only be used in response to a threat of
serious bodily injury. Rather, the statute requires that in order to be
justified, the homicide must be in response to a reasonable apprehension
of a felony or in the actual resistance of an attempted felony, regardless of
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the type of felony. See Davis, 130 Nev., Adv. Op. 16, 321 P.3d at 873 ("The
plain language of a\IRS 200.1601 does not differentiate between the types
of felonies from which a person may defend himself."). Thus, a plain
reading of NRS 200.160 and NRS 200.275 appears to justify any battery
committed in the reasonable apprehension of any felony or in resistance of
an attempt to commit any felony, regardless of the amount of force used or
whether the person battered poses a threat of serious bodily injury.
Because such an interpretation is unreasonable and absurd, we look to
other sources for the statutes' meaning. See Friend, 118 Nev. at 121,
40
P.3d at 439.
State v. Weddell
In drafting the jury instruction at issue, the district court
relied on our holding in Weddell, 118 Nev. at 214,
43 P.3d at 992. At issue
in Weddell was whether a private party could use deadly force to arrest a
fleeing felon. Id. at 208,
43 P.3d at 988. Nevada had previously codified
the common-law rule permitting a private person to use deadly force to
apprehend a felon but later repealed it. Id. at 212,
43 P.3d at 990. In the
same bill repealing Nevada's codification of this common-law rule, the
Legislature enacted NRS 171.1455, a statute limiting a police officer's use
of deadly force against a fleeing felon. Id. However, the new statute made
no mention of limiting a private party's use of deadly force. Id.
The Weddell court, relying on the United States Supreme
Court's decision in Tennessee v. Garner, 471 U.S. 1 (1985), concluded that
the policy rationale that existed at common law for allowing deadly force
to be used in apprehending a felon had been eroded. Weddell, 118 Nev. at
211,
43 P.3d at 990. It reasoned that "[Oho rule was developed at a time
when felonies were only the very serious, violent or dangerous crimes and
'virtually all felonies were punishable by death"; therefore, the killing of a
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fleeing felon resulted in no greater punishment than the felon would
receive if arrested. Id. (quoting Garner,
471 U.S. at 13). The Weddell
court noted that, in contrast, "the modern distinction between felonies and
misdemeanors is 'minor and often arbitrary" and that
[s]ociety would not tolerate the use of deadly force
to prevent the commission of any of these crimes
or to apprehend someone suspected of any of these
crimes. The modern arbitrary and expanded
classification of crimes as felonies has undermined
the rationale for the old common law fleeing-felon
rule, which. . . was to prevent the escape of a felon
by inflicting the punishment that was inevitably
to come.
Id. at 211-12, 43 P.3d at 990 (quoting Garner,
471 U.S. at 14). Thus,
because of the "legislature's evident disapproval of the fleeing-felon
doctrine," and because "the rationale for the rule at common law no longer
exists," the Weddell court held that
a private person may only use the amount of force
that is reasonable and necessary under the
circumstances. Further, we hold that the use of
deadly force is, as a matter of law, unreasonable,
unless the arrestee poses a threat of serious bodily
injury to the private arrestor or others.
Id. at 214, 43 P.3d at 992. Thus, Weddell's holding is almost identical to
the language that the district court added to Newell's justifiable battery
instruction. See id.
Weddell's reasoning is applicable to our interpretation of the
justifiable homicide statutes
Although Weddell dealt with the issue of the fleeing-felon rule,
we find that its reasoning is nonetheless applicable to our interpretation of
NHS 200.160. Similar to Weddell, this case deals with a common-law rule
allowing the use of deadly force against a felon or someone committing a
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felony without distinguishing the type of felony committed. See Weddell,
118 Nev. at 212,
43 P.3d at 990 (fleeing-felon statute held to be a
codification of the common law); see also People v. Ceballos, 526 P.2d 241,
245 (Cal. 1974) (holding that a justifiable homicide statute similar to NRS
200.160 was a codification of the common law). Thus, we find that in both
Weddell and the current case the "rationale for the rule at common law no
longer exists" because "the modern distinction between felonies and
misdemeanors is 'minor and often arbitrary." Weddell, 118 Nev. at 211,
214,
43 P.3d at 990, 992 (quoting Garner,
471 U.S. at 14).
Likewise, we believe that "[s]ociety would not tolerate the use
of deadly force to prevent the commission of any [nonviolent felony]." Id.
at 211, 43 P.3d at 990. Newell argues that by the plain language of NRS
200.160(2), in order for a homicide to be justifiable, a felony must be
committed upon the slayer. Thus, Newell argues that a literal
construction of NRS 200.160 would not create absurd results, as it would
not allow for nonviolent felonies such as bribery of a judicial officer or
forgery to be met with deadly force. However, we do not find the plain
language of NRS 200.160 to be so constrained. The plain language of NRS
200.160(2) authorizes the use of deadly force not only in resistance of
felonies committed upon the slayer but also in response to felonies
committed in the resistance of a felony in the slayer's presence or when the
felony is upon the slayer's dwelling. Thus, the plain language of NRS
200.160(2) permits justifiable homicide in response to any felony
committed in the slayer's presence or upon the slayer's dwelling. Under
this reading, deadly force could be justifiably used in response to a drug
transaction committed in the slayer's presence. See NRS 200.160(2). To
allow deadly force to be used in such circumstances is both intolerable to
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society and inconsistent with the original intent of the Legislature when it
first enacted NRS 200.160.
Therefore, we extend our holding in Weddell to NRS 200.160
and require that in order for homicide in response to the commission of a
felony to be justifiable under that statute, the amount of force used must
be reasonable and necessary under the circumstances. Furthermore,
deadly force cannot be used unless the person killed poses a threat of
serious bodily injury to the slayer or others. By extension, the amount of
force used in a battery must also be reasonable and necessary in order to
be justified, and deadly force cannot be used unless the person battered
poses a threat of serious bodily injury to the slayer or others. Because the
district court correctly included these requirements in its justifiable
battery jury instruction, we hold that it did not abuse its discretion.
Attempted assault under NRS 200.471(1)(a)(2) is not legally impossible
Newell argues that because at common law assault was an
attempted battery, attempted assault is a legally impossible double
inchoate crime.
In Nevada, assault is broader than at common law. It
includes:
(1) Unlawfully attempting to use physical
force against another person; or
(2) Intentionally placing another person in
reasonable apprehension of immediate bodily
harm.
NRS 200.471(1)(a). Thus, Nevada law codifies assault as two distinct
activities: (1) the attempt to commit battery or (2) the intentional
placement of another person in fear of immediate bodily harm. Only the
first is the equivalent of the common-law offense.
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Here, Newell was convicted of attempted assault under NRS
200.471(1)(a)(2): the intentional placement of "another person in
reasonable apprehension of immediate bodily harm." While we agree that
the attempt to attempt a crime is legally impossible, see Lamb v. State,
613 A.2d 402, 419 (Md. Ct. Spec. App. 1992) ("There can be no such offense
as an 'attempt to attempt' a crime." (internal quotation marks omitted)),
NRS 200.471(1)(a)(2) is not a crime of attempt. Therefore, we hold that
Newell's conviction for attempted assault under NRS 200.471(1)(a)(2) was
not legally impossible.
CONCLUSION
Because the district court correctly based its justifiable
battery instruction on our holding in Weddell, it did not abuse its
discretion. Furthermore, attempted assault under NRS 200.471(1)(a)(2) is
not legally impossible. Therefore, we affirm Newell's judgment of
conviction.
Saitta
We concur:
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