Zgombic v. State

Steffen, J.,

concurring in part and dissenting in part:

I concur in the result reached by the majority, but do not agree that we should overrule our very recent opinion in Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988). Unfortunately, the majority has reacted to an unnecessary extreme in its response to an excess of zeal by the State’s prosecutor.

Before discussing the basis for my dissent from the majority’s break with stare decisis in overruling Clem, I first note my concurrence with the result reached by the majority. In my view the deadly weapon enhancement in this case may not be sustained even under our ruling in Clem. In the process of adopting the “functional test” in Clem, we noted that other courts have resolved the definitional problem concerning the meaning of the statutory reference to “deadly weapons” by “resorting to a functional test of how an instrument is used and the facts and circumstances of its use.” Id. at 357, 760 P.2d at 106.

Of necessity, the Clem test demands a sensitive and reasonable approach to the enhancement problem by prosecutors. It also demands an application limited by statutory use of the term “weapon,” as explained in greater detail hereinafter. As I have observed from the bench during oral argument, even a handkerchief, if used to forcibly block the airway passages of an intended victim, could, in a sense, be considered to be a deadly weapon. However, such a construction would stretch the limits of credulity, let alone the legislative intendment regarding an enhanced penalty for using a deadly weapon. In the instant case, the State elected to seek an enhancement by including steel-toed boots within the intended reach of the statute. The State went too far.

My threshold concern with the majority opinion involves what I consider to be its unnecessarily precipitous overruling of Clem. Stare decisis is a venerable principle of the common law system because it provides stability and predictability in the law. It follows, therefore, that legal precedents established by this court should be respected unless and until they are shown to be unsound in principle. As stated by the United States Supreme Court:

The doctrine of stare decisis imposes a severe burden on the litigant who asks us to disavow one of our precedents. For that doctrine not only plays an important role in orderly adjudication; it also serves the broader societal interests in evenhanded, consistent, and predictable application of legal rules.

Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980). Moreover, where as here, statutory construction is involved, it has been said that “[t]he doctrine of stare decisis, weighty in any context, is especially so in matters of statutory construction. For in such cases Congress may cure any error made by the courts.” Cottrell v. C. I. R., 628 F.2d 1127, 1131 (8th Cir. 1980). If the legislature had discerned error in the interpretation this court placed on NRS 193.165 in Clem, it would have been comparatively simple to correct the error through an amendment to the statute. The legislature has not seen fit to modify our ruling in Clem, and, as we observed in Ex Parte Phillips, 43 Nev. 368, 375, 187 P. 311, 312 (1920), if there had been legislative dissatisfaction with our interpretation, the statute would have been amended “so as to remove all doubt as to the legislative intent.”

Finally, another court noted that:

[W]hen a rule of law has once been settled, contravening no statute or constitutional principle, such rule ought to be followed unless it can be shown that serious detriment is thereby likely to arise prejudicial to public interests. [Citations omitted.] The rule of stare decisis is founded upon sound principles in the administration of justice, and rules long recognized as the law should not be departed from merely because the court is of the opinion that it might decide otherwise were the question a new one.

Maki v. Frelk, 239 N.E.2d 445, 447 (Ill. 1968). And, as declared in State v. Nuwi Nini, 262 N.W.2d 758, 761 (S.D. 1978), “[i]f there is to be stability and an even-handed administration of justice, this court must follow its own precedent until convinced that its earlier decision was wrong, not in result, but in principle.”

Mindful of the foregoing authorities which reflect established attitudes and principles concerning the importance of stare deci-sis in our legal system, I suggest that our ruling in Clem should not be overruled for a number of reasons. First, as I shall endeavor to demonstrate, our ruling in Clem was most assuredly not wrong in principle and it did not operate contrary to public interests. Second, the majority position not only tosses the “baby” along with the “bath water,” it also fails to supply needed guidance to prosecutors in following the new “inherently dangerous” rule. Finally, I submit that the majority has misread the law of other jurisdictions in giving birth to confusion in our own.

A majority of the states have adopted the functional rule which is abandoned in this jurisdiction by the instant decision. It seems clear, therefore, that the functional test may not be viewed in general as unsound. Moreover, when properly circumscribed, it provides an appropriate latitude to the enhancement statute that accomplishes or has the potential to accomplish in particular, compliance with legislative intent.

I suggest that the majority has failed to place proper emphasis on the word “weapon” as they redefine legislative intent to exclude the functional test and include an inherently dangerous test. In pertinent part, NRS 193.165 enhances the penalty imposed on any person “who uses a firearm or other deadly weapon ... in tibie commission of a crime. ...” (Emphasis supplied.) The term “deadly” is an adjective that describes the kind of weapon that will actuate an enhancement. Rather than focusing on the word “weapon,” the majority addresses the word “deadly” and concludes that it refers to any instrument that is inherently dangerous. I suggest that the initial emphasis must be placed on the word “weapon” in order to provide proper context to the language of the statute and the legislative concerns it addresses. In doing so, it is apparent that NRS 193.165 is designed to deter the use of weapons in the commission of crimes, thus reducing the prospect of death or serious bodily injury. Viewed in that context, it is clear that the majority is incorrect in concluding that the functional test would include virtually every instrument that may be used to accomplish serious injury or death. The critical inquiry should be: what is a “weapon.”

A weapon has been defined as: “[A]n instrument of offensive or defensive combat: something to fight with: something (as a club, sword, gun or grenade) used in destroying, defeating or physically injuring an enemy.” Webster’s Third New International Dictionary (1968). As previously observed, the apparent purpose of enhancement statutes, including our own, is to deter persons from using weapons in the commission of crimes, thereby reducing the likelihood of death or serious injury. Anderson v. State, 95 Nev. 625, 630, 600 P.2d 241, 244 (1979). By way of emphasis, I would repeat that the statutory purpose is to discourage the use of weapons, not instruments or things used as weapons. Once it is understood that the statutory concern is weapons, a great variety of objects capable of being used as weapons may be eliminated as instruments within the purview of the enhancement statute. On the other hand, if statutory enhancement is restricted to weapons that are “inherently dangerous,” unintended consequences will arise. For example, in Allen v. State, 96 Nev. 334, 609 P.2d 321 (1980), we properly determined that a pistol incapable of being fired was nevertheless a deadly weapon within the meaning and intendment of NRS 193.165. Under the “inherently dangerous” test adopted by the majority, it is evident that no enhancement would have been permissible despite the policy of the statute to discourage the use of such weapons, operablt or not. The defective hand gun, although inoperable, was nevertheless a weapon by nature. It was manufactured and designed as a weapon, but because of a mechanical defect, it was not inherently dangerous as a projectile-firing weapon. It was nevertheless used by Allen as if it were a deadly weapon of the character and quality addressed by the statute. Its appearance also summoned all the dread and potentially hazardous thoughts and responses that victims of such threats conjure up under stresses provoked by the menacing of such weaponry. Under the functional test adopted by Clem, both statutory purpose and individual justice were served by Allen’s enhanced penalty, as the firearm was, for all intents and purposes, a deadly weapon used in the commission of the crime.

In dealing with a statute that enumerated certain instruments as deadly weapons, the court in State v. Williams, 352 N.W.2d 576 (Neb. 1984), refused to recognize a steak knife found in appellant’s car as a deadly weapon, reasoning that “an ordinary tool for personal dining” was not within the contemplation of the legislature. A similar result was reached in State v. Paige, 92 N.W. 313 (S.D. 1902), where the court recognized that any ordinary object could be used to inflict death or serious injury. However, such destructive potential alone was not sufficient to make the instrument a “deadly or dangerous weapon.” The Paige court stated that the term “weapon” was an instrument used for offensive or defensive purposes and could not be extended to include ordinary instruments not used for such purposes.

In Commonwealth v. Burns, 568 A.2d 974 (Pa.Super. 1990), “deadly weapon” was statutorily defined as:

[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce serious bodily injury.

Id. at 976 (quoting 18 Pa. C.S.A. § 2301). The court rejected penalty enhancement for the use of an automobile in running a police car barricade occupied by law enforcement officers. The court opined that the legislature was limiting the term “weapons” “to include blades, guns, sticks, clubs and other items that are offensive weapons in the traditional sense.” Id. The Burns court concluded that the legislature did not intend that motor vehicles be considered as weapons for purposes of penalty enhancement.

After determining that an object used by a defendant to produce death or injury is, in fact, a weapon in the traditional sense, the next question is whether the weapon is either a firearm or other deadly weapon. If, in addition to firearms, every other type of weapon could be used to support an enhanced sentence, the qualifying or modifying adjective “deadly” would be deprived of meaning. Given the purpose of the statute, we cannot conclude that the term “deadly” was either unintended or undeserving of judicial deference. I suggest that the functional test appropriately comes to bear on the issue of determining the deadly character of a weapon by looking to how the weapon is used and the facts and circumstances of its use. If, for example, a hand gun (which by statutory definition is a deadly weapon) is used as a club or solid object rather than a firearm, the functional test may disallow its use as an enhancement. On the other hand, if an ordinary table fork is taken by one bent on using it offensively and heated to become an instrument of torture, the usually benign instrument may have been transmuted into a weapon that could appropriately be classified as deadly. Similarly, an innocuous toothbrush could be purposely fashioned into a stiletto that could properly be viewed as a weapon that was deadly in nature. Once an object is determined to be in the category of a weapon, its deadly nature should be determined according to how it was used by the defendant as well as the circumstances surrounding its use.

It follows from the foregoing that articles of apparel, such as Zgombic’s steel-toed boots, could never be considered as weapons under the statute unless modified in such a way as to make them weapons. For example, if Zgombic had altered his boots with pointed steel shafts protruding from the toes so that, by design, the boots could be used to inflict injury or death, the functional test would have permitted enhancement under the statute. The fact that Zgombic used his footwear as a means of producing injury does not constitute a basis for invoking the statutory enhancement reserved for the use of weapons of a deadly character. Nevertheless, as mentioned above, even ordinary objects or household implements may be transmuted into weapons when redesigned, modified or used in an offensive manner. Thus, in State v. Medeiros, 665 P.2d 181 (Haw.App. 1983), a flare gun that had, in an earlier case, been denied the status of a weapon (State v. Rackle, 523 P.2d 299 (Haw. 1974)) was determined to be a weapon when the defendant placed a shotgun shell in the gun and fired it into the head of his victim. The court held that because the defendant had used the flare gun in an offensive manner to “‘injure, defeat and destroy his enemy,’ ” the flare gun became a weapon. Id. at 187. Under the inherently dangerous test adopted by the majority, I assume that the flare gun, designed for emergency signalling would not have satisfied enhancement criteria despite its purposeful adaptation by the defendant into the equivalent of a firearm.

Another basis for my disagreement with the majority position is that it provides precious little guidance to prosecutors and sentencing judges. Illustrative of the point is the flare gun problem presented in Medeiros. A flare gun is neither a firearm nor an offensive or defensive weapon; it is an implement designed to assist in times of emergency. It is not “inherently dangerous.” In Nevada, will those who use flare guns as shot guns avoid penalty enhancement under the majority’s ruling? I suggest that a more preferable solution to the majority’s understandable concern (a concern which I fully share), is to narrow the scope of the functional test adopted in Clem.

Clearly, the legislature did not intend tennis shoes or regular-stock, steel-toed boots to qualify as weapons under the enhancement statute. Because we have not previously supplied limiting guidelines to the functional test, it should come as no surprise that zealous prosecutors have pushed the test beyond its outer limits. Rather than abandoning the test currently and, I believe, justifiably used in a majority of states, I would have circumscribed the test with meaningfiil guidelines for its use. My review of the cases suggests, in part, that the following guidelines or indicia of applicability would be helpful in future prosecutions:

(1) Was the defendant “armed” with the instrument when he proceeded to commit the crime?

(2) Was the otherwise ordinary instrument modified or redesigned to become a weapon?

(3) Did the defendant intend to use the instrument offensively or defensively to “defeat, destroy or injury a person?”

(4) Is the instrument ordinarily used for criminal and unlawful purposes (e.g., a billy)?

(5) Did the defendant possess the instrument under circumstances tending to demonstrate that it was intended for use as a weapon?

(6) Was the defendant in possession of the instrument when the criminal activity first commenced or did the defendant merely grasp for it as a means of inflicting death or injury during the commission of the crime?

(7) Did the defendant plan to use the instrument as a weapon of destruction in facilitating the successful objective of the crime?

(8) Is the weapon of the kind specifically referred to by the Nevada legislature as a “deadly weapon” in NRS 202.320 (dirk, dirk-knife, sword, sword cane, pistol, gun or other deadly weapon) or as a “dangerous weapon” in NRS 202.350 (knife which is integral part of a belt buckle, switchblade knife, blackjack, slung shot, billy, sandclub, sandbag, metal knuckles, explosive substance, dirk, dagger or dangerous knife, pistol, revolver or other firearjn or other dangerous or deadly weapon, nunchaku, trefoil or machine gun)?

The above guidelines are only suggestions of the type of assistance that I believe this court could focus upon as a better alternative than overruling Clem. Moreover, as an additional safeguard against unintended enhancements, I would always leave the determination of enhancement suitability to the sentencing authority. In that respect, I also part company with my colleagues in the majority who would place such decisions with triers of fact in “close” cases.

Finally, the majority skates lightly over the cases this court cited in support of its decision in Clem. Although three of the nine cases cited in Clem related to statutes involving assault with a deadly weapon, five of the remaining cases involved crime reclassification because a deadly weapon was used, and one of the cases involved the crime of possession. Reclassification of a crime to a greater offense is closely analogous to penalty enhancement.

I suggest that the majority’s reliance on Arizona case law for support in its adoption of the inherently dangerous test is unsound. Arizona uses the functional test in defining deadly weapons for penalty enhancement purposes. The Arizona Supreme Court has held that the inherently dangerous test used in the case cited by the majority, State v. Church, 504 P.2d 940 (Ariz. 1973), is inapplicable where use of a deadly weapon is not an element of the substantive offense. State v. Moss, 579 P.2d 42 (Ariz. 1978). In Moss, the determination of whether a deadly weapon was used in the commission of the crime was left to the jury based upon an application of the functional test (the manner and circumstances of its use). The purpose for the determination was to decide whether the defendant’s sentence should be enhanced because of his use of a tire iron. According to Moss, the Church decision was dictated by the need to place a constitutional interpretation on the assault with deadly weapon statute.

Arizona case law, applying the functional test with respect to penalty enhancement, is just the opposite of what the majority now proposes for Nevada. Under today’s ruling, the functional test will apply in Nevada to determine whether a deadly weapon has been used as a required element of the substantive offense, and the inherently dangerous test will apply for purposes of penalty enhancement. The majority merely states that it has no dispute with using the functional test to “define a deadly weapon when a deadly weapon is an element of a crime.” (Majority Opinion, p. 3.) No reason is provided by the majority in support of its position favoring the functional test in substantive crimes and disfavoring it in penalty enhancements. It appears to me, as it has to the Arizona courts, that if a distinction is to be made, the greater clarity presumably attaching to the “inherently dangerous” test should apply to the definition of the elements of a crime. Illustrative of the point is the case of criminal assault. In Nevada, if the assault occurs without the use of a deadly weapon or the present ability to use such a weapon, the crime is a simple misdemeanor. If the converse is true, the crime is a felony. In my opinion, if there is uncertainty in the definition of a deadly weapon, that uncertainty impacts with equal or in some instances, greater magnitude, on the notice given of the conduct proscribed in statutory definition of crimes as it does in the area of penalty enhancement. I must therefore conclude that if the majority insists on altering the test, it has done so in the wrong direction. I suggest, however, that under Nevada’s statutory scheme, the functional test should be used in both instances.

I am also unpersuaded that the majority has properly characterized the other cases treated in the majority opinion as either non-supportive of our ruling in Clem or as a basis for the rule adopted in the instant case. Without further prolonging this dissent, I merely suggest that the majority’s attempt to distinguish cases cited by this court in favor of our decision in Clem is not persuasive and provides no sound basis for withholding the principle of stare decisis from our recent ruling in Clem.¹

Finally, I am constrained to take issue with the majority’s conclusion that NRS 193.165 “is designed to deter injuries caused by weapons, not by people. ” Weapons are inanimate objects; they do not act, but are acted upon by people. There is no “potential violence inhering in the weapon itself’ as declared by the majority. (Majority Opinion, p. 6.) I am unable to attribute any reason or logic whatsoever to the majority’s attribution of animation to weapons, and its conclusion that the legislature “intended violence caused by people to be remedied by the statutes proscribing the underlying crime.” To suggest, as the majority does, that the legislature designed NRS 193.165 to deter weapons rather than people, is beyond comprehension. Both the express language of the statute and common sense make clear the legislative purpose to deter the use of deadly weapons by people.

For reasons previously expressed and many unexpressed in deference to the law of diminishing returns, I respectfully dissent from the majority’s abandonment of the functional test, but otherwise concur in the result.

1 I am also troubled by issues of retroactivity stemming from the majority’s overruling of the functional test established in Clem. Although case precedents exist disfavoring retrospective application of criminal case rulings in many instances, it appears that such a disposition of the issue created by today’s ruling may cause compelling problems related to basic fairness.