CABRERA (IVONNE) VS. STATE ( 2019 )

135 Nev., Advance Opinion 65
IN THE SUPREME COURT OF THE STATE OF NEVADA
IVONNE CABRERA, ATIVA YVONNE No. 74341
CABRERA,
Appellant, FILED
vs.
THE STATE OF NEVADA, DEC 2 6 201,.1
Respondent. ETHA. BROVIN
UPREK4r-, CO 'IT
BY
Appeal from a judgment of conviction, pursuant to a jury
verdict, of conspiracy to commit murder, burglary while in possession of a
deadly weapon, and two counts each of first-degree murder with the use of
a deadly weapon and attempted murder with the use of a deadly weapon.
Eighth Judicial District Court, Clark County; Kathleen E. Delaney, Judge.
Affirmed in part, reversed in part, and remanded.
Law Office of Patricia M. Erickson and Patricia M. Erickson, Las Vegas,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Marc P. DiGiacomo and Alexander G. Chen, Chief Deputy
District Attorneys, Clark County,
for Respondent.
BEFORE HARDESTY, STIGLICH and SILVER, JJ.
OPINION
By the Court, STIGLICH, J.:
Nevada law recognizes that a person should not be punished for
a criminal act that was committed under duress. But there are limits to the
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defense. As codified in NRS 194.010(8), duress cannot be asserted as a
defense to a crime that "is punishable with death." We are asked to
consider, for the first time, whether that limiting language can be
interpreted to include crimes that are not punishable with death but require
proof of intent to commit a crime that is punishable by death. Considering
the statute's plain language, we conclude that it cannot be interpreted to
limit the duress defense with respect to crimes that are not punishable with
death regardless of the relationship between those crimes and another
crime that is punishable with death. Accordingly, the district court did not
err in precluding appellant Ivonne Cabrera from asserting duress as a
defense to the crime of first-degree murder because that offense is
punishable with death, but the court did err in precluding Cabrera from
asserting duress as a defense to the other charged crimes, which were not
punishable with death. Because we are not convinced the error was
harmless, we reverse the judgment as to the convictions of attempted
murder with the use of a deadly weapon, conspiracy to commit murder, and
burglary while in possession of a deadly weapon and remand for further
proceedings as to those charges. We otherwise affirm the judgment of
conviction.
FACTS
A dispute between appellant Ivonne Cabrera and a group of her
friends involving the return of a borrowed car ended with a shooting that
left two people dead and two others injured. The deadly series of events
started when Cabrera loaned her car to Eric Morales and the car was
wrecked while Morales was driving it. Morales lent his car to Cabrera until
her car could be fixed. Shortly thereafter, Morales began texting Cabrera
asking for his car back. Not wanting to return the car, Cabrera hid it at a
friend's house. Later that evening, Cabrera used Morales's car to pick up
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Jose Gonzales. Cabrera drove to the apartment where Morales lived with
Melissa Marin, James Headrick, and Ashley Wantland. Armed with a gun,
Gonzales entered the apartment through a bathroom window and opened
the front door for Cabrera. Cabrera tricked Headrick into opening his
bedroom door, where he and Wantland had been asleep. Gonzales entered
the room and shot both Headrick and Wantland. Meanwhile, Cabrera
knocked on Marin's bedroom door. When Morales opened the door,
Gonzales entered and shot Morales and Marin while, according to Marin's
trial testimony, Cabrera stood in the doorway. Morales and Headrick died.
Cabrera and Gonzales were charged with two counts each of
murder with the use of a deadly weapon and attempted murder with the
use of a deadly weapon, conspiracy to commit murder, and burglary while
in possession of a deadly weapon. The State sought the death penalty for
the murder charges. Gonzales eventually pleaded guilty, but Cabrera
proceeded to trial. Through pretrial motion practice, the State learned that
Cabrera intended to assert a duress defense—that Gonzales forced her to
drive him to the apartment and help him gain access to the bedrooms once
they were in the apartment. The State filed two motions in limine: one to
preclude Cabrera's use of a duress defense to the murder charges and
another to preclude her use of a duress defense to the other charges.
Cabrera opposed the motions. The district court granted the State's motions
in part, holding that NRS 194.010(8) precluded the duress defense to first-
degree murder and to any of the charges that involved an underlying intent
to commit murder. Then, on the eve of trial, the State amended the
information to include two additional theories of burglary, to wit, burglary
with intent to commit assault and/or battery. The district court indicated
it would give the duress instruction on those two theories but also inform
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the jury that duress was not a defense to any of the other charges. In light
of this ruling, Cabrera informed the court she would not argue duress as to
any of the charges. Nonetheless, consistent with its pretrial ruling, the
district court instructed the jury that duress was not a defense to the
charges of murder, attempted murder, conspiracy to commit murder, and
burglary based on the intent to commit murder but that it could be a defense
to burglary based on the intent to commit assault and/or battery. During
closing arguments, while Cabrera did not argue duress, the State
highlighted it, indicating to the jury it was available as a defense to
burglary, but Cabrera still chose not to use it.
The jury found Cabrera guilty of all charges but declined to
impose a death sentence for either murder, instead selecting sentences of
life in prison without the possibility of parole. The district court
subsequently sentenced Cabrera to various terms of years for the other
convictions. Cabrera now appeals from the judgment of conviction.
DISCUSSION
Cabrera argues that she should have been allowed to argue
duress as a defense to all of the charges. We agree except as to the first-
degree murder charges.
The duress defense is an ancient common law affirmative
defense "which provides the defendant a legal excuse for the commission of
the criminal act." United States v. LaFleur, 971 F.2d 200, 204 (9th Cir.
1991). Under the common law rule, duress is not a defense to murder. Id.
at 205; see also 40 Am. Jur. 2d Homicide § 107 (2019) ("It is generally held
that neither duress, coercion, nor compulsion are defenses to murder.. . . ."
(citations omitted)). A majority of states follow the common law rule. See
LaFleur, 971 F.2d at 205; see also Steven J. Mulroy, The Duress Defense's
Uncharted Terrain: Applying It to Murder, Felony Murder, and the Mentally
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Retarded Defendant, 43 San Diego L. Rev. 159, 172 (2006) ("The general
common-law rule is that duress cannot be a defense to murder. Most states
follow this common-law rule, either by statute, or through case precedent."
(citations omitted)).
Nevada codified the duress defense at NRS 194.010(8).
Accordingly, whether Cabrera should have been allowed to assert duress as
a defense to all of the charges presents a question of statutory
interpretation. Our review therefore is de novo. State v. Lucero, 127 Nev.
92, 95, 249 P.3d 1226, 1228 (2011). We begin with the statute's text. See
Douglas v. State, 130 Nev. 285, 286, 327 P.3d 492, 493 (2014). "The starting
point for determining legislative intent is the statute's plain meaning; when
a statute is clear on its face, a court can not go beyond the statute in
determining legislative intent." Lucero, 127 Nev. at 95, 249 P.3d at 1228(internal quotations omitted).
NRS 194.010(8) states the following:
All persons are liable to punishment except those
belonging to the following classes:
8. Persons, unless the crime is punishable
with death, who committed the act or made the
omission charged under threats or menaces
sufficient to show that they had reasonable cause
to believe, and did believe, their lives would be
endangered if they refused, or that they would
suffer great bodily harm.
The statute plainly states that duress is not a defense when "the crime is
punishable with death."
Cabrera was charged with a crime that is punishable with
death—two counts of first-degree murder. NRS 200.030(4)(a). She
nonetheless argues that the duress defense should be available to her on
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the murder charges because she was merely an aider and abettor and did
not actually pull the trigger. That distinction, however, makes no difference
under NRS 194.010(8). One who aids and abets another person in
committing a murder is liable for the murder as a principal. NRS 195.020;
Randolph v. State, 117 Nev. 970, 978, 36 P.3d 424, 429-30 (2001)
("[P]ursuant to NRS 195.020, anyone who aids and abets in the commission
of a crime is liable as a principal."). Thus, because first-degree murder is
punishable with death and an aider and abettor is liable to the same extent
as the principal, an aider and abettor to first-degree murder can be
punished with death, thereby activating NRS 194.010(8)s limitation on the
duress defense. Accordingly, the district court did not err in precluding
Cabrera from asserting a duress defense to the first-degree murder
charges.'
The district court, however, also precluded Cabrera from
asserting a duress defense to the other charges she faced that were not
punishable with death: conspiracy to commit murder, two counts of
attempted murder with the use of a deadly weapon, and burglary while in
possession of a deadly weapon. The State urges this court to hold that
duress is not a defense to those crimes because each required proof that
1To the extent Cabrera suggests that she has a constitutional right to
present a duress defense or that the limit on the duress defense set forth in
NRS 194.010(8) is unconstitutional, we decline to reach those arguments
because she has not cited relevant authority in support of her contention.
See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) ("It is
appellant's responsibility to present relevant authority and cogent
argument; issues not so presented need not be addressed by this court.").
In particular, the cases she cites do not establish a constitutional right to
present a duress defense that is precluded by state law. Nor does it appear
that the district court excluded any evidence based on its interpretation of
NRS 194.010(8).
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Cabrera intended to commit a murder. The State relies heavily on State v.
Mannering, 75 P.3d 961 (Wash. 2003), in support of this proposition. In
Mannering, the Supreme Court of Washington addressed its duress statute,
which stated that the duress defense was unavailable for murder or
manslaughter. Id. at 963-64. The Mannering court held that although the
duress statute said the defense is only unavailable for murder or
manslaughter, not applying the exclusion to attempted murder would result
in an "absurd and strained interpretation[ ] of the statute. Id. at 964. The
court reasoned that attempted murder was not specifically listed in the
criminal statutes, but rather the crime of attempted murder was derived
from combining the murder and attempt statutes. Id.
NRS 194.010(8) is different from the Washington duress
statute. Nevada's duress statute does not limit the defense by reference to
certain crimes, like murder and manslaughter, but rather limits the defense
by reference to the potential punishment (death). So, unlike in Washington,
the fact that attempted murder is a combination of both the murder statute
(NRS 200.030) and the attempt statute (NRS 193.330) is irrelevant to
whether the duress defense is precluded under NRS 194.010(8). Instead,
NRS 194.010(8) requires courts to look to whether the charge to which the
defendant wants to assert a duress defense is punishable with death. If the
crime is not punishable with death, the defendant can assert a duress
defense. And because this court cannot go beyond the plain meaning of a
statute when it is clear on its face, we cannot adopt the reasoning outlined
in Mannering because it does not comport with NRS 194.010(8)s plain
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language.2 We hold that because duress may be raised as an affirmative
defense to any crime not punishable with death, the district court erred in
precluding Cabrera from asserting duress as a defense to the charges other
than burglary with the intent to commit assault and/or battery, for which
she could not be punished with death, and then instructing the jury that
duress is not a defense to those crimes.
The district court's instructional error is subject to harmless-
error review. See Wegner v. State, 116 Nev. 1149, 1155-56, 14 P.3d 25, 30
(2000) (applying harmless-error review to erroneous instruction on the
elements of an offense), overruled on other grounds by Rosas v. State, 122
Nev. 1258, 147 P.3d 1101 (2006); see also NRS 178.598 (providing in general
that trial errors are subject to harmless-error review); accord State v. Reece,
349 P.3d 712, 726 (Utah 2015) (observing that harmless-error review
applies to "the complete failure to instruct the jury on an affirmative
defense"). We decline to decide whether the standard for constitutional or
nonconstitutional error applies here, see Tavares v. State, 117 Nev. 725, 732
& nn.14, 17, 30 P.3d 1128, 1132 & nn.14, 17 (2001) (discussing the different
harmless-error standards), modified in part on other grounds by Mclellan v.
State, 124 Nev. 263, 182 P.3d 106 (2008), because even under the less strict
2For the same reason, similar rationales articulated by other courts
under their state statutes or the common law are not persuasive. See Kee
v. State, 438 N.E.2d 993, 994 (Ind. 1982) (holding that attempted murder is
a combination of the attempt and murder statutes, and therefore the duress
defense is unavailable); People v. Henderson, 854 N.W.2d 234, 239 (Mich.
Ct. App. 2014) ("Given that a defendant may not justify homicide with a
claim of duress, it logically follows that a defendant cannot justify conduct
intended to kill simply because he or she failed in the effort"); State v.
Finnell, 688 P.2d 769, 774 (N.M. 1984) (adopting the common law duress
rule for both murder and attempted murder charges).
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standard for nonconstitutional error, the instructional error here is not
harmless.
Cabrera presented ample evidence to support a duress defense.
Cabrera recounted her perspective of the events that took place on the night
in question. She stated that Gonzales had just been released from prison.
He jumped in her car abruptly without permission. She was scared. He
pointed a gun at her, and she felt like she "had no choice." Based on this
evidence, a properly instructed jury could have reasonably concluded that
Cabrera acted under duress, and therefore, could not be held liable for the
charges other than first-degree murder. Moreover, this error was
compounded when the district court gave the instruction that duress could
be a defense to burglary with the intent to commit assault and/or battery,
but not the other charges. In its closing argument, the State highlighted
the fact Cabrera did not use duress as a defense, thereby turning what
would have been a shield for Cabrera, into a sword against her. We
therefore conclude that the instructional error had a "substantial and
injurious effect or influence in determining the jury's verdict," such that it
was not harmless with respect to the charges other than first-degree
murder.3 Id. at 732, 30 P.3d at 1132 (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)) (stating harmless-error standard for
nonconstitutional errors).
We have considered Cabrera's remaining arguments and
conclude that they are without merit or moot. Specifically, we conclude that
3It is unclear whether the instructional error here would be harmless
with respect to the first-degree murder convictions had the State obtained
those convictions based solely on a felony-murder theory. We are not faced
with that situation because the jury unanimously found that the murders
were willful, deliberate, and premeditated.
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Cabrera has not demonstrated that the district court violated her
constitutional right to a speedy trial where Cabrera was responsible for part
of the delay and did not demonstrate that the delay prejudiced her defense.
See Barker v. Wingo, 407 U.S. 514, 530 (1972) (identifying four factors that
courts must weigh to determine if the right to a speedy trial has been
violated); see also Reed v. Farley, 512 U.S. 339, 353 (1994) ("A showing of
prejudice is required to establish a violation of the Sixth Amendment
Speedy Trial Clause, and that necessary ingredient is entirely missing
here."). Further, to the extent that the district court admitted but did not
redact parts of the custodial interrogation, the court did not abuse its
discretion because such statements were not hearsay, as they were not
offered to prove the truth of the matter asserted. See Deutscher v. State, 95
Nev. 669, 683-84, 601 P.2d 407, 416-17 (1979) ("Hearsay evidence is
evidence of a statement made other than by a witness while testifying at
the hearing, which is offered to prove the truth of the matter asserted."
(emphasis added)). Finally, Cabrera's argument regarding two of the
aggravating circumstances is moot because she was not sentenced to death.
CONCLUSION
Because first-degree murder is punishable by death and duress
is not a defense to any crime punishable by death, the district court did not
err in precluding Cabrera from using duress as a defense to the murder
charges. Thus, we affirm the judgment of conviction as to these charges.
Conversely, because duress is a valid defense to any crime not punishable
by death, we conclude the district court erred when it precluded Cabrera
from using it as a defense to the attempted murder, conspiracy to commit
murder, and burglary with the intent to commit murder charges.
Furthermore, because we conclude this error was not harmless, we reverse
10
the judgment of conviction as to these charges and remand for further
proceedings consistent with this opinion.
Stiglich
We concur:
J.
Hardesty
J.
Silver
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