Ikie v. State , 107 Nev. 916 ( 1991 )

Steffen, J.,

with whom Mowbray, C. J., agrees,

dissenting:

Unfortunately, the majority has revitalized and extended the meaning of this court’s opinion in Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983), far beyond its original intendment in order to invalidate what, in my view, is a sound conviction. I therefore respectfully dissent.

By way of preliminary background, I note that two of the three justices signatory to the majority opinion, including the author thereof, were not members of this court when Barren was decided. Although the point has no relevance, I mention it in passing because it may partially explain why the majority has misperceived the special office of the Barren ruling. In short, Barren was conceived by this court as a means of restricting outrageous, purposeful prosecutorial misconduct. It was intended from the inception as a ruling with highly limited application.

The youthful defendant, Barren, was befriended by a detective with respect to a comparatively minor matter that was deemed not worthy of prosecution and which, in any event, was unrelated to the murder involved in the Barren case. Moved by the fact that the detective seemed genuinely concerned about his life and future, Barren volunteered information to law enforcement officers concerning details of the brutal beating of an elderly victim who died from the assault. At the time of Barren’s disclosure, the young man was not under threat of prosecution for any crime, and the police had no suspects concerning the murder. As a result of Barren’s unsolicited cooperation, the state obtained detailed information concerning events surrounding the death of the elderly victim, Rose Shapiro, including the very limited and nonviolent, non-participatory role of Barren in the killing. Notwithstanding the specific details of the murder thus revealed to the state, the prosecution proceeded to obtain an indictment charging Barren with personally beating the victim to death and personally and forcefully taking property from her death and personally and forcefully taking property from her person or presence. See, Barren, 99 Nev. at 665, 669 P.2d at 727. Moreover, despite its knowledge of Barren’s true involvement in the crime, the state did not indicate that it might prosecute Barren on an aiding and abetting theory until immediately prior to the opening statements at trial. See, id. at 669, 669 P.2d at 730. Finally, the state vacillated during trial as to its theory of prosecution, although the theme of vicarious liability, which was not even mentioned in the indictment, predominated during the course of the prosecution.

Occasionally, there are “unseen hands” that move the judicial pen in response to intolerable circumstances. The' Barren case constituted an example of an intolerable method of prosecution. It is nevertheless extremely important to understand that Barren was fully and purposefully intended to have a severely limited precedential effect. The key to both the scope and thrust of Barren is found in footnote 4 of the opinion which qualifies the following holding:

[W]e now hold that where the prosecution seeks to establish a defendant’s guilt on a theory of aiding and abetting, the indictment should specifically allege the defendant aided and abetted, and should provide additional information as to the specific acts constituting the means of the aiding and abetting so as to afford the defendant adequate notice to prepare his defense.

Id. at 668, 669 P.2d at 729 (emphasis added). The qualifying footnote appearing at the end of the quoted material revealingly stated: “As pointed out in Simpson v. State, 88 Nev. at 658, n.4, NRS 175.075(2) [an inaccurate reference to NRS 173.075(2) as properly cited in Simpson] allows flexibility in pleading when the evidence is unclear as to the means by which a crime has been committed.” Id. (emphasis supplied).

It was never intended that Barren have the effect, or be perceived as having the effect of invalidating NRS 195.020, which, in pertinent part provides:

Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who, directly or indirectly, counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor is a principal, and shall be proceeded against and punished as such.

At no point in Barren did we suggest or infer, let alone hold, that NRS 195.020 is unconstitutional or otherwise infirm and therefore invalid. We did, however, overrule the terse opinion of McWilliams v. State, 87 Nev. 302, 486 P.2d 481 (1971), to the extent that McWilliams was inconsistent with our ruling in Barren. See, Barren, 99 Nev. at 668, 669 P.2d at 729. In brief, the rule of Barren is that prosecutors do not have the luxury of withholding their true theories of prosecution until trial, thereby deliberately depriving a defendant of the opportunity to most effectively prepare for the primary prosecutive thrust against the defendant. Additionally, Barren requires the state to include within the charging document facts by which an aiding and abetting occurred, if they are known.

However, as the referenced footnote in Barren makes clear, the state is allowed the flexibility of a less particularized pleading under NRS 173.075(2) when the prosecution is uncertain as to the means by which a crime has been committed. It is thus seen that while NRS 195.020 confers upon an aider and abettor the status of a principal, the latter statute does not constitute authority for general or imprecise pleading by the state when details of the means of the commission of the crime are known. The former statute, NRS 173.075(2), does, however, provide the pleading flexibility that the state may utilize in good faith when details, including the precise role of various participants in a criminal enterprise, are unknown.

The majority is therefore in error in concluding that Barren requires the state “to set forth in the information or indictment the specific acts constituting the means of aiding and abetting so as to afford the defendant notice to prepare his defense.” If the rule ascribed to Barren were that rigid, no validity could be attached to either the qualifying footnote referenced above, or the flexibility expressly provided by NRS 173.075(2). Moreover, under the view expressed by the majority, unless the state can plead the specific acts by which an aiding and abetting is accomplished, no prosecution may proceed. This extreme result was never intended by Barren or any other ruling of this court. It is expressly foreclosed by the statutory latitude accorded the state under NRS 173.075(2), a latitude which this court has never declared unconstitutional or invalid in any of its cases, including Barren.

Applying the foregoing analysis of Barren and its impact on the instant case, I must conclude that the majority has misperceived Barren and thus reached an erroneous result. The only evidence that the state possessed was forthrightly presented in the information quoted by the majority. There was no attempt by the state, and indeed the majority has cited to none in the record, to withhold its theory of prosecution until the time of trial. Nor is there evidence that the state, by its information and subsequent prosecution at trial, frustrated or prejudiced Ikie’s right to be informed of the charges against him and properly prepare his defense.

The trial record places Ikie in the company of the other two perpetrators immediately preceding and following the consummation of the crime and during the attempted getaway. Expert testimony properly admitted concerning the modus operandi of various pickpocket schemes, revealed that frequently such crimes are committed by a team of three similarly dressed confederates. The first is the “stall,” who creates the diversion or bumps into the victim. The second, the “mechanic” or “pick,” is the one who actually picks the victim’s pocket, and the third, referred to as the “mule,” is the confederate who is immediately given the money. A “mule’s” role also includes serving as a lookout or a blocker in the event of a chase.

After his apprehension, Ikie was found to be in possession of a large sum of money of the same denomination taken from the victim. The jury reasonably could have concluded that Ikie’s possession of the money was consistent with the role assumed by a “mule” as previously described to them by the expert witness.

The jury was free to accept the evidence of record and assign it the weight the jury deemed proper. The totality of the evidence in the instant case, coupled with the guilty verdict, indicate that the jury placed significant credibility in the expert testimony and reached a determination both supportable by the evidence and reasonable in its result. Moreover, based upon the evidence the jury rightfully considered, it is evident that Ikie’s participation in the crime was truly that of a principal, as opposed to either an aider and abettor or a recipient of stolen property. He was part of the “crime team” that acted in concert to complete the crime.

We have long adhered to the principle that “[i]n reviewing the evidence supporting a jury’s verdict, the question is not whether this Court is convinced of the defendant’s guilt beyond a reasonable doubt, but whether the jury, acting reasonably, could have been convinced to that certitude by the evidence it had a right to consider.” Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). I believe that the jury performed its function reasonably and in full accordance with the law as pronounced by this court. Because I do not agree with either the legal analysis or the result of the majority opinion, I am constrained to dissent.