Jackson v. StateJackson v. State
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- Before:
- Pickering
By the Court,
Pickering, J.:A single act can violate more than one criminal statute. When it does, the question arises whether the defendant can, in a single trial, be prosecuted and punished cumulatively for that act. These appeals present specific applications of that question: When the elements of both crimes are met, can a defendant who shoots and hits but fails to kill his victim be convicted of and punished for both attempted murder and battery? If he shoots and misses, can he be convicted of and punished for both attempted murder and assault?
In general, the answer to the single act/multiple punishment question depends on the statutes violated, specifically, whether they proscribe the same offense and, if so, whether they nonetheless authorize cumulative punishment. The statutes’ elements define how many distinct crimes have been created. If each statute contains an element that the other does not, then the offenses are different. Battery, assault, and attempted murder each includes elements the others do not. Furthermore, Nevada’s attempt statute authorizes cumulative punishment in the attempted murder/assaultive crime context. We therefore affirm the judgments of conviction in both appeals.
I.
Jackson v. State (Docket No. 53632)
The facts relevant to Adrian Jackson’s appeal are these: James Duffy was working the night shift at Foot Hills Tavern when Jackson, then just 17 years old, entered. After 20 minutes of conversation, Jackson showed Duffy a gun and said he intended to rob the bar. He then coerced Duffy into helping him try to disable the bar’s security cameras.
During the robbery, Jackson forced Duffy into the restroom, ordered him into a submissive position, and asked him if he had ever taken a bullet. When Duffy said no, Jackson asked him whether he would rather be shot in the leg, the stomach, or the head. Duffy chose to be shot in the leg, which Jackson proceeded to do.
Next, Jackson asked Duffy whether he would rather be shot in the chest or the head. Duffy responded that he would rather be shot in the chest. Jackson told Duffy to lift up his head and close his eyes. Before Jackson fired, Duffy got to his feet and, despite his injured leg, grabbed the gun barrel. Jackson shot but the bullet discharged over Duffy’s head. The two men struggled, Jackson fled, and Duffy called the police.
As part of their investigation, police officers contacted Mark Rodney, who managed the bar’s surveillance system. Rodney advised that the security cameras had survived Jackson’s bungled attempt to disable them, and offered to provide complete video for the evening. The police declined and instead asked Rodney to prepare a composite video, including only frames that showed Duffy or Jackson. The composite video omitted 12 to 15 hours of recordings from the bar’s several security cameras.
An anonymous tip led to Jackson’s arrest. He was charged with seven felonies, including attempted murder, assault, and battery, all with a deadly weapon; robbery, kidnapping, burglary, and discharge of a firearm in
On appeal, Jackson argues that his convictions for assault and battery, on top of his attempted murder conviction, violate double jeopardy and are redundant to the attempted murder conviction and to each other. Jackson also argues that the State’s failure to preserve the complete video footage offends due process, and that his sentence constitutes cruel and unusual punishment.1
Garcia v. State (Docket No. 55086)
Appellant Steve Garcia and several friends got into a street fight with brothers Isaac, Ricardo, and Jose Guadalupe “Lupe” Cordero. Garcia drew a gun and fired separate shots at Isaac and Lupe, hitting both. When Garcia and his friends fled by car, Ricardo gave chase. Garcia turned and again fired the gun, hitting Ricardo in the foot. Lupe died, and Isaac suffered severe injuries.
In a single trial, Garcia was tried for and convicted of Lupe’s murder, two counts of attempted murder with the use of a deadly weapon for shooting Isaac and Ricardo, battery with the use of a deadly weapon causing substantial bodily harm (Isaac), and battery with the use of a deadly weapon (Ricardo). The court sentenced Garcia to life in prison with the possibility of parole for Lupe’s murder, to consecutive sentences of 192 months in prison for the two attempted murder convictions, and to lesser concurrent sentences for the aggravated battery convictions.
Garcia raises myriad issues on appeal, only one of which warrants extended discussion: that his convictions for attempted murder and aggravated battery violate double jeopardy and are imper-missibly redundant.2
fl.
Whether conduct that violates more than one criminal statute can produce multiple convictions in a single trial is essentially a question of statutory construction, albeit statutory construction with a constitutional overlay. See United States v. McLaughlin, 164 F.3d 1, 7-8 (D.C. Cir. 1998). Our review is de novo as to both the statutory construction, Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004) (whether leaving three victims at the scene of an accident constituted one offense or three presents a statutory construction question that receives de novo review), and constitutional issues involved, Davidson v. State, 124 Nev. 892, 896, 192 P.3d 1185, 1189 (2008) (“A claim that a conviction violates the Double Jeopardy Clause generally is subject to de novo review on appeal.”). See Ebeling v. State, 120 Nev. 401, 404, 91 P.3d 599, 601 (2004) (reviewing de novo a redundancy challenge to multiple convictions for an assertedly single offense).
A.
1.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
‘ ‘In accord with principles rooted in common law and constitutional jurisprudence,” the Supreme Court “presume[s] that ‘where two statutory provisions proscribe the “same offen[c]e,” ’ a legislature does not intend to impose two punishments for that offense.” Rutledge v. United States, 517 U.S. 292, 297 (1996) (quoting Whalen v. United States, 445 U.S. 684, 691-92 (1980)) (interpreting federal legislation). To determine whether two statutes penalize the “same offence,” both the Supreme Court and this court look to Blockburger v. United States, 284 U.S. 299, 304 (1932). Ball v. United States, 470 U.S. 856, 861 (1985) (“This Court has consistently relied on the test of statutory construction stated in Blockburger[ ] to determine whether Congress intended the same conduct to be punishable under two criminal provisions.”); Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 1127 (2006) (“Nevada utilizes the Blockburger test to determine whether separate offenses exist for double jeopardy purposes.”). The Blockburger test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same of-fence’ and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 (1993); see Barton v. State, 117 Nev. 686, 692, 30 P.3d 1103, 1107 (2001) (“under Blockburger, if the elements of one offense are entirely included within the elements of a second offense, the first offense is a lesser included offense and the Double Jeopardy Clause prohibits a conviction for both offenses”), overruled on other grounds by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006).
As Rutledge‘s reference to “presume[d]” legislative intent suggests, the Blockburger test does not, by itself, decide whether multiple punishments are permissible. It determines whether the statutes violated penalize the same or several distinct offenses, and if so, whether a presumption arises against cumulative punishment. If Congress or a state legislature has clearly authorized multiple punishments for the same offense—as routinely occurs when a statute authorizes incarceration and a fine for a given crime—dual punishments do not offend double jeopardy, even though they are imposed for the “same offence.” See Whalen, 445 U.S. at 688-89 (but noting that, “if a penal statute instead provided for a fine or a term of imprisonment upon conviction, a court could not impose both punishments without running afoul of the double jeopardy guarantee of the Constitution” (citing Ex parte Lange, 85 U.S. (18 Wall.) 163, 176 (1873))). The converse also holds: If Congress or a state legislature has created mutually exclusive alternative offenses, thereby prohibiting multiple punishment for what are separate offenses under Blockburger, that prohibition controls. McLaughlin, 164 F.3d at 9 (“Just as failing Blockburger does not preclude punishment under multiple provisions, passing Blockburger does not mandate it.”); cf. Braunstein v. State, 118 Nev. 68, 79, 40 P.3d 413, 421 (2002) (since
2.
Applying this law to these appeals, we turn to the statutes that produced the convictions Jackson and Garcia challenge.
NRS 193.330 is Nevada’s attempt statute and it states:
1. An act done with the intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit that crime. A person who attempts to commit a crime, unless a different penalty is prescribed by statute, shall be punished as follows:
(a) If the person is convicted of:
(1) Attempt to commit a category A felony, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years.
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2. Nothing in this section protects a person who, in an unsuccessful attempt to commit one crime, does commit another and different one, from the punishment prescribed for the crime actually committed. A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court in its discretion discharges the jury and directs the defendant to be tried for the crime itself.
(Emphasis added.)
Jackson was charged with assault under
In determining whether the Legislature has authorized multiple punishments, we look first to statutory text.
But the parties do not argue
B.
Jackson and Garcia argue that their multiple convictions violate Nevada’s unique redundancy doctrine, even if they do not offend double jeopardy. Specifically, they maintain that under Nevada redundancy case law, multiple convictions factually based on the same act or course of conduct cannot stand, even if each crime contains an element the other does not. This argument, and the cases cited in its support, are fundamentally inconsistent with Barton, 117 Nev. at 693, 30 P.3d at 1107, where this court, sitting en banc, rejected the fact-driven “same conduct” approach in favor of Blockburger’s “same elements” approach. Based on Barton, we reject Jackson’s and Garcia’s redundancy challenges.
1.
Like Nevada, the United States Supreme Court has vacillated on whether to pursue, in addition to Blockburger’s “same elements” test, a “same conduct” analysis in assessing cumulative punishment. Thus, in Grady v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993), the defendant pleaded guilty to driving under the influence, a misdemeanor traffic violation, and later faced vehicular manslaughter charges arising from the same incident. Id. at 511-13. The Supreme Court held that the Double Jeopardy Clause barred the second prosecution “in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. at 521. Shortly after Grady,
In Barton, this court retraced the Supreme Court’s path in Grady and Dixon and endorsed Dixon’s “same elements” approach, to the exclusion of Grady’s “same conduct” approach. Barton, 117 Nev. at 694-95, 30 P.3d at 1108. Although Barton arose in the context of lesser-included-offense instructions, id. at 687, 30 P.3d at 1103,6 its stated holding applies to other contexts as well, including specifically, to questions of ‘ ‘whether the conviction of a defendant for two offenses violates double jeopardy,” “whether a jury finding of guilt on two offenses was proper,” and “whether two offenses merged.” Id. at 689-90, 30 P.3d at 1105. Indeed, the principal “same conduct” case Barton overrules, Owens v. State, 100 Nev. 286, 680 P.2d 593 (1984), is a double jeopardy/cumulative punishment case.7 And Barton states its holding categorically: ‘ ‘To the extent that our prior case law conflicts with the adoption of the elements test, we overrule Owens v. State and expressly reject the same conduct approach that has been used in various contexts”-, “[jjust as the United States Supreme Court found [Grady’s] same conduct test to be unworkable . . . , we too conclude that eliminating the use of this test will promote mutual fairness.” Barton, 117 Nev. at 694-95, 30 P.3d at 1108-09 (emphases added).
2.
The “same conduct” test that Barton rejects resurfaced not two years later in Salazar v. State, 119 Nev. 224, 70 P.3d 749 (2003), a redundancy decision on which both Jackson and Garcia rely. In Salazar, a three-judge panel of this court reversed a conviction under
One of the pre-Barton cases cited in Salazar, Skiba, involves similar facts and exhibits the same conclusory analysis as Salazar. Skiba slashed his victim’s cheek and eye with a broken beer bottle, for which he was charged with and convicted of one count of battery ‘ ‘not committed with a deadly weapon [resulting in] substantial bodily harm” under
Careful statutory analysis would have led to the same result in Skiba and arguably Salazar,8 without resort to Albitre’s colorful but ultimately unhelpful “chameleonic attire” language or the discredited “same conduct” approach it camouflages. Overlooked in Skiba is the fact that, by its terms,
3.
Consistent with Barton, we disapprove of Salazar, Skiba, Albi-tre, and their “redundancy” progeny, to the extent that they endorse a fact-based “same conduct” test for determining the permissibility of cumulative punishment. Rather than the facts or evidence in a specific case, the proper focus is on legislative authorization, beginning with an analysis of the statutory text. If the Legislature has authorized—or interdicted—cumulative punishment, that legislative directive controls. Absent express legislative direction, the Blockburger test is employed. Blockburger licenses multiple punishment unless, analyzed in terms of their elements, one charged offense is the same or a lesser-included offense of the other. As discussed
In disapproving the stated reasoning in Salazar, Skiba, and Albitre, our holding is limited to the fact-based “same conduct” approach they use. Of note—and doubtless contributing to the confusion in this area—Nevada’s redundancy case law has also captured “unit of prosecution” and alternative-offense challenges within its sweep, neither of which we question. Examples of “unit of prosecution” cases include Wilson v. State, 121 Nev. 345, 356-57, 114 P.3d 285, 293 (2005) (construing
Also dependent on statutory text and substantive criminal law are the alternative-offense “redundancy” cases like Crowley v. State, 120 Nev. 30, 33-34, 83 P.3d 282, 285 (2004), and Braunstein v. State, 118 Nev. 68, 78-79, 40 P.3d 413, 420-21 (2002); see Otto Kirchheimer, The Act, the Offense, and Double Jeopardy, 58 Yale L.J. 513, 516-17 (1949) (“ Alternativity’ refers to the mutually exclusive quality of certain offenses—the application of one logically excludes the application of another to the same factual situation.”). At issue in Crowley and Braunstein were dual convictions under
m.
Jackson’s final argument is that the district court erroneously admitted video surveillance evidence despite the State’s violation of Leonard v. State, 117 Nev. 53, 68, 17 P.3d 397, 407 (2001) (a defendant’s due process rights may be violated if the State fails to preserve evidence and the defendant can
Jackson’s reliance on Leonard is misplaced because the State could not have failed to preserve or destroyed evidence that it did not possess in the first place. As the record indicates, the police officers only collected the security footage Rodney compiled and failed to collect the omitted portions of the video. Thus, Daniels v. State, 114 Nev. 261, 956 P.2d 111 (1998), applies.
In Daniels, we explained that ‘ ‘police officers generally have no duty to collect all potential evidence from a crime scene.’ ”114 Nev. at 268, 956 P.2d at 115 (quoting State v. Ware, 881 P.2d 679, 684 (N.M. 1994)). However this rule is not absolute and we use a two-part test to determine whether the State’s failure to gather evidence caused injustice. First, we consider whether the uncollected evidence was material. Id. at 267, 956 P.2d at 115. Second, if the evidence was material, we must determine whether the failure to gather evidence was the result of negligence or bad faith. Id.
Evidence is material when there is a reasonable probability that, had the evidence been available to the defense, the result of the proceedings would have been different. Id. (discussing Ware, 881 P.2d at 685). Here, the exculpatory value of the omitted video is minimal. Jackson suggested that Duffy was complicit in the robbery and that the omitted footage might somehow prove that. This argument lacks merit because the State provided all video footage that featured Duffy and Jackson, including footage of their interaction before and during the robbery. Rodney also testified that the omitted video did not contain any relevant footage. Given that the omitted footage had no apparent exculpatory value we cannot con-elude that the evidence affected the result of the trial, especially in light of the substantial evidence presented by the State.
Jackson also did not establish bad faith, and nothing in the record on appeal indicates bad faith. The decision to compile only parts of the surveillance recordings appeared to the district court to be the product of concern for efficiency, not bad faith. We cannot disagree with that conclusion.
Thus, the State’s failure to gather the full video surveillance footage did not result in injustice and the district court did not err by denying Jackson’s motion to strike the video evidence or grant a mistrial.12
For these reasons, we affirm the judgments of conviction.
Cherry, C.J., and Douglas, Saitta, Gibbons, Hardesty, and Parraguirre, JJ., concur.
Notes
Jackson’s cruel and unusual punishment argument is without merit because the sentences imposed are within the statutory limits, Jackson has not demonstrated that the applicable statutes are unconstitutional, and the sentences are not so grossly disproportionate to the offenses as to shock the conscience. See Harmelin v. Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion); Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996).
Garcia also contends that: (1) the district court improperly instructed the jury, (2) the State committed misconduct during closing argument, (3) the district court improperly admitted testimony about gangs, (4) the murder sentence rested on suspect evidence resulting in cruel and unusual punishment, and (5) the evidence was insufficient to convict. After careful consideration, we conclude that these arguments lack merit. Garcia also contends that he was deprived of his right to effective assistance of counsel, an issue inappropriate for direct appeal. Ouanbengboune v. State, 125 Nev. 763, 768 n.l, 220 P.3d 1122, 1125 n.1 (2009).
Some suggest that the prohibition against multiple punishment is not “a freestanding constitutional prohibition implicit in the Double Jeopardy Clause,” but rather, “an aspect of the Due Process Clause requirement of legislative authorization.” Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 801 (1994) (Scalia, J., joined by Thomas, J., dissenting).
Of note, Garcia’s trial counsel conceded this point at sentencing: “I would love it if they actually legally merged [but] I believe there are elements that are different in the two [attempted murder and battery].”
We acknowledge that the court held in Walker v. State, 110 Nev. 571, 574-75, 876 P.2d 646, 648 (1994), overruled in part on other grounds by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006), that assault with a deadly weapon is a lesser-included offense of attempted murder with the use of a deadly weapon. At that time,
Barton was convicted of second-degree murder; he claimed that, on the evidence presented, reckless driving causing substantial bodily harm was a lesser included offense and that counsel had been remiss in not requesting a lesser-included-offense instruction to that effect.
In overruling Owens, Barton also overrules the cases on which Owens relied—Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966), and Dicus v. District Court, 97 Nev. 273, 625 P.2d 1175 (1981). In Owens, this court reversed a battery conviction on double jeopardy grounds, holding that, while battery is not always a lesser included offense of robbery, the two stand in that relation when factually based on the same conduct or act. Owens, 100 Nev. at 288-89, 680 P.2d at 595 (citing Graves and Dicus). Graves held that “[ajttempted murder can be committed with or without assault” and that whether assault was a lesser included offense of attempted murder depended on the “evidence submitted at the trial, as well as . . . the language of the charge contained in the indictment.” Graves, 82 Nev. at 438, 420 P.2d at 620-21 (quotations omitted). Dicus held that “[w]hether battery with the use of a deadly weapon is a lesser included offense within attempted murder depends on the facts of each case.” Dicus, 97 Nev. at 275-76, 625 P.2d at 1177. These cases, had Barton not overruled them, would have directly supported Jackson’s and Garcia’s redundancy challenges; they involved the same statutes and the same fact-based “same conduct” analysis Jackson and Garcia urge.
Nevada is unusual in retaining the anachronistic crime of mayhem, in addition to aggravated battery, in its criminal code. Wayne R. LaFave, Criminal Law § 16.5(b) at 887 (5th ed. 2010) (“Only a few of the modern codes contain such a crime [mayhem], although some others define a certain variety of aggravated battery in terms that are very similar.”).
Although Skiba refers to
Other jurisdictions that, like Nevada, hew to Blockburger’s “same elements” test have reached the same conclusion as to multiple punishment challenges involving comparable attempt and assaultive crime statutes. E.g., Com. v. Vick, 910 N.E.2d 339, 353 (Mass. 2009); State v. Johnson, 739 N.W.2d 1, 5-6 (S.D. 2007); see State v. Saiz, 7 P.3d 1214, 1219 (Kan. 2000). Different results obtain in jurisdictions that, whether because of statutory mandate or case law, adhere to a variant of the same-conduct test Barton and Dixon disavow. See State v. Swick, 279 P.3d 747, 755 (N.M. 2012) (noting New Mexico’s reliance on charging documents and jury instructions in assessing multiple punishment challenges); State v. Lanier, 950 N.E.2d 600, 603 (Ohio Ct. App. 2011) (applying Ohio’s statutory “same conduct” test). For a general discussion see 6 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orín S. Kerr, Criminal Procedure § 24.8(e) (3d ed. 2011).
Jackson also argues that the State violated Brady v. Maryland, 373 U.S. 83 (1963), but this argument is without merit because Brady only governs failure to disclose evidence. See Arizona v. Youngblood, 488 U.S. 51, 55-56 (1988).
We acknowledge that the district court incorrectly reviewed Jackson’s motions under Leonard. Nevertheless, this mistake was harmless because the district court considered the materiality of the evidence and the possibility of bad faith and ultimately reached the right conclusion. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (“[i]f a judgment or order of a trial court reaches the right result, although it is based on an incorrect ground, the judgment or order will be affirmed on appeal”).