809 P.2d 1265 | Nev. | 1991
OPINION
Joseph Warren, aged seventeen, stands convicted of first degree murder. Enoch Earl McCurdy, Jr., aged fifteen, was convicted of second degree murder.
The homicide in this case arose out of an affray involving members of conflicting youth gangs. During the affray Warren shot and killed another youth.
Warren claims that his conviction is not supported by the evidence. There is ample evidence of Warren’s guilt. Warren knew that his gun was loaded; and, according to one witness, Warren “just walked up and pointed and pulled the trigger.” This is enough to support the required mental element of first degree murder, that the killing be “willful, deliberate and premeditated.” See NRS 200.030(l)(a); Briano v. State, 94 Nev. 422, 424-25, 581 P.2d 5, 7 (1978).
Warren challenges the admission of his confession because he was not afforded the protection afforded by law to a “child,” namely, that an officer who “take[s] into custody any child” must “immediately notify the parent, guardian or custodian of the child.” NRS 62.170(1). NRS 62.040(l)(b)
Warren’s first degree murder conviction is affirmed.
Enoch Earl McCurdy, Jr.
Enoch McCurdy claims that there is insufficient evidence to support his conviction of second degree murder. To be guilty of
The record does not support a conclusion that McCurdy acted with express malice, for the evidence reveals that McCurdy never possessed a specific intent to kill.
The question here presented is whether McCurdy’s conduct, taken in the light most favorable to the prosecution, was such that the jury was justified in concluding that he was guilty of implied malice. Under NRS 200.020(2), “malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.”
As stated in Keys v. State, 104 Nev. 736, 740, 766 P.2d 270, 272 (1988), “implied malice . . . does not relate to a deliberate, intentional killing but is rather a mens rea inferred in law from the circumstances of the killing.” The circumstances of this killing were that McCurdy approached the victim and his friends in order to stir up trouble. McCurdy threatened the group with a gun, and this behavior eventually led to a confrontation involving opposing gang members. During the turmoil, McCurdy handed Warren the loaded and cocked gun. Before long, Warren joined the fight and eventually shot and killed Frank Perkins with the gun which McCurdy had given him. Handing a loaded gun to Warren under these circumstances shows a malicious lack of concern for human life. Implied malice “signifies general malignant recklessness of others’ lives and safety or disregard of social duty.” Thedford v. Sheriff, Clark County, 86 Nev. 741, 744, 476 P.2d 25, 27 (1970). The jury could have properly concluded that, from McCurdy’s perspective, it should have been clear that handing the gun to Warren under these circumstances was malignantly reckless and that death or serious injury was likely to result. There is sufficient evidence in this case to support a jury finding of implied malice on the part of McCurdy; therefore, McCurdy’s second degree murder conviction is affirmed.
NRS 62.040(l)(b) provides as follows:
1. Except as otherwise provided in this chapter, the court has exclusive original jurisdiction in proceedings:
(b) Concerning any child living or found within the county who has committed a delinquent act. A child commits a delinquent act if he:
(1) Commits an act designated a crime under the law of the State of Nevada except murder or attempted murder ....
(Our emphasis.)
Under NRS 200.020(1), “express malice is that deliberate intention unlawfully to take away the life of a fellow creature . . . .”