8/18/2019 Order Affirming in Part, Reversing in Part and Remanding

1/6

P R E M E C O U RT

O F

N E V D

IN THE SUPREME COURT OF THE STATE OF NEVADA

LEONARDO CARDOZA,

Appellant,vs.THE STATE OF NEVADA,Respondent.

No. 66463

F I L E

A P R 1 4 2 1 6

TRACE K LNDPMANCLERK OF SUPREME COURT

Y_SYyt l DEPUTY CLER

ORDER AFFIRMING IN PART REVERSING IN PARTAND REMANDING

This is an appeal from a judgment of conviction, pursuant to a

jury verdict, of first-degree murder with the use of a deadly weapon and

attempted murder with the use of a deadly weapon. First Judicial District

Court, Carson City; James E. Wilson, Judge.

First appellant Leonardo Cardoza contends that the

information was not adequate to charge first-degree murder. He argues

that the charging document failed to allege that the murder waspremeditated or that Cardoza deliberated. We disagree. The challenged

information included a statement of the acts constituting the offense in

ordinary and concise language and put Cardoza on notice of the State's

theory of prosecution. Viray u. State 121 Nev. 159, 162, 111 P.3d 1079,

1082 (2005) (quoting Jennings v. State 116 Nev. 488, 490, 998 P.2d 557,

559 (2000)). An open murder charge need not specify the degree of

murder. See e.g. Biondi v. State 101 Nev. 252, 255, 699 P.2d 1062, 1064

(1985).

'Cardoza also contends that the State engaged in prosecutorialmisconduct for drafting the inadequate charging document. As we

continued on next page...

1947A clrjsz0-/173D

8/18/2019 Order Affirming in Part, Reversing in Part and Remanding

2/6

Second Cardoza contends that the State engaged in

prosecutorial misconduct in successfully seeking a cause challenge to a

Native-American venireperson and using peremptory challenges to

dismiss two Hispanic venirepersons in violation of Batson v. Kentucky 476

U.S. 79 1986). We conclude that this argument lacks merit. As Cardoza

did not raise a Batson objection in the district court, he waived it. See

Dias v. Sky Chefs Inc. 948 F.2d 532, 534 9th Cir. 1991) concluding that

Batson challenge was untimely where objection to peremptory strikes was

made after excluded jurors dismissed and jury had been sworn); see also

Watson v. State 130 Nev., Adv, Op. 76, 335 P.3d 157, 166 requiring

objecting party to establish a prima facie case of discrimination under

first-step of Batson analysis in the district court).

Third Cardoza contends that the district court erred in

permitting him to testify without adequately instructing him on his right

to remain silent. We discern no plain error. See NRS 178.602; Green v.

State 119 Nev. 542, 545, 80 P.3d 93, 95 2003). The district court twice

informed Cardoza of his right to testify or remain silent and these

colloquies clearly indicated that the decision to testify rested solely with

Cardoza. See generally Phillips v. State 105 Nev. 631, 632-33, 782 P.2d

381, 382 1989) discussing the privilege against self-incrimination and the

right to testify).

Fourth Cardoza contends that the district court erred in

instructing the jury on the elements of involuntary manslaughter and

...continuedconclude that the information was not inadequate, Cardoza failed todemonstrate prosecutorial misconduct.

REME COURT

OF

NEVADA

1947A

-A 4.4 PrO k% t i

' F PT.:9 •

8/18/2019 Order Affirming in Part, Reversing in Part and Remanding

3/6

fel on y mu rd er . W e di s cer n no plai n er r or. T he cha l leng ed i n str u ctio n

a ccu ratel y sta tes N evad a la w . ee N R S 2 0 0.0 7 0.

Fif th, C ard oza argu es th at th e di stric t cou rt p lainl y er red i n

in s tru c ting the jury o n t h e el e me n ts f o r fir s t-de g ree mu rder, See Vald ez v.

St ate 124 Ne v . 1 1 72 , 11 9 0, 1 96 P .3d 465 , 47 7 2 008 ) re vie w ing

uno bjec ted- to er ror f o r pl a in e rror affe c ting sub stan t ial r ight s ). In By fo rd

v . St a te thi s co u rt d isa p pro v ed of t h e Kaz a lyn ins tru ct io n 3 o n it s

d e scr iptio n of the m en s rea requ ired for a fir s t-de g ree mur d er c onv ictio n

b a se d on w ill fu l, de lib e rat e, an d pr em e di tat ed m u rde r , an d p ro vid e d t he

dist r ict c our ts w it h i n stru c tio n s to use i n t h e fu ture . 11 6 Ne v . 2 1 5, 2 3 3-

37 , 9 94 P .2d 700 , 71 2- 15 200 0 ). S p ec if ica lly , t hi s c ou rt co nc lu de d tha t the

K a zal yn ins tr uc ti on , b y d ef in ing o n ly pr em e d ita ti on , i m pe rm issi bl y

c on fl at ed th e co nc ep ts of d eli be ra tio n an d pr em ed it ati on a nd th u s b lu rre d

th e dis ti nc tio n be tw ee n fir st- a nd s eco n d- de gr ee m ur de r. Id . a t 2 3 5, 99 4

P .2 4 at 7 13 . A c co rd in gl y , th is c ou rt se t f o rth i nst ru ct io ns th at d ef in ed

Ins tr uc tio n 2 0 re ad s a s fo llo ws :

Invo lunt a ry m ans laug hter is th e ki l ling of a hu man bei ng, w itho ut a ny i nten t to do so , in theco mm issi o n o f an unla wfu l ac t , or a la w fu l act wh ic h p rob ab ly m igh t pro d uc e suc h a c o nse q ue nc ein an u n law ful m an n er.

W h e re th e i nv ol un ta ry k ill ing o cc u rs in th e

co m m is sio n o f an u nla w fu l ac t , w h ich , in i tscons eque nces , nat ural ly ten ds t o des troy the life o fa hu m a n b ei ng or i t i s co m m i tte d in t h epr o sec u tio n of a fe lo ni ou s in ten t, th e of fe ns e ism u rde r .

Ka zaly n v. S tate 10 8 N e v. 6 7 , 82 5 P.2 d 57 8 19 92).

PRE ME COUR T

O

NE V D

3 9 47A

8/18/2019 Order Affirming in Part, Reversing in Part and Remanding

4/6

willfulness, deliberation, and premeditation. Id. at 236-37, 994 P.2d at

714-15.

We conclude that the district court erred in instructing the

jury. The given first-degree murder instruction referred to the willful,

deliberate and premeditated' elements, and instructed that they exist

where there was a determination and design to kill, distinctly formed in

the mind at any moment before the act that caused death was committed.

It did not provide a definition of deliberation. Thus, the given instruction

was essentially the Kazalyn instruction which this court rejected in

Byford 14 years before Cardoza's trial.

This error was also plain. See Patterson v. State 111 Nev.

1525, 1530, 907 P.2d 984, 987 (1995) (providing that plain error must be

so unmistakable that it reveals itself by a casual inspection of the

record ). As first-degree murder was the most severe charge Cardoza

faced, this instruction was arguably the most prominent. Further, this

court specifically set forth an instruction for district courts to follow over a

decade before trial. Byford 116 Nev. at 236-37, 994 1 .2d at 714-15. In the

years since Byford this court has repeatedly reaffirmed the Byford

instruction as the proper instruction to use after that decision. See Nika v.

State 124 Nev. 1272, 1283-87, 198 P.3d 839, 847-50 (2008); Rippo v. State

122 Nev. 1086, 1096-97, 146 P.3d 279, 286 (2006); Randolph v. State 117

Nev. 970, 985-86, 36 P.3d 424, 434 (2001); Leonard v. State 117 Nev. 53,

74-75, 17 P.3d 397, 410-11 (2001).Lastly, we conclude that this error prejudiced Cardoza's

substantial rights. See Valdez 124 Nev. at 1190, 196 P.3d at 477 ( [Amn

error that is plain from a review of the record does not require reversal

unless the defendant demonstrates that the error affected his or her

EME COURT

OF

NEV D

1947A

8/18/2019 Order Affirming in Part, Reversing in Part and Remanding

5/6

substantial rights, by causing actual prejudice or a miscarriage of justice.

(internal quotation marks omitted)). A plain error affects substantial

rights if it had a prejudicial impact on the verdict when viewed in context

of the trial as a whole. Miller v. State 121 Nev. 92, 99, 110 P.3d 53, 58

(2005) (internal quotation marks omitted). The evidence of deliberation is

not overwhelming. Cardoza had been drinking alcoholic beverages

throughout the afternoon and evening. His blood alcohol content was over

the legal limit several hours after the incident. Further, Cardoza s

inexplicable behavior after he struck the victim—wandering around

outside his vehicle, fleeing in his vehicle, crashing into a fence, and

stumbling back to the victim's home—is not emblematic of a willful,

deliberate, and premeditated murder. Considering this evidence, the jury

may not have found Cardoza guilty of first-degree murder had it been

instructed that he must have weighed the reasons for or against his action

and that an unconsidered and rash act is not deliberate. Byford 116 Nev.

at 236, 994 P.2d at 714. We therefore reverse the first-degree murder

conviction and remand for a new trial on that charge.

4 Cardoza also contends that the State engaged in prosecutorialmisconduct for arguing in support of the challenged instructions. As thisargument did not occur in the presence of the jury, Cardoza failed todemonstrate that the any alleged misconduct so infect[ed] the proceedins

with unfairness as to make the results [of the trial] a denial of dueprocess. Browning v. State 124 Nev. 517, 533, 188 P.3d 60, 72 (2008)(internal quotation marks omitted).

Cardoza also contends that cumulative error warrants reversal ofhis convictions. Other than the first-degree murder instruction, Cardozafailed to demonstrate error, therefore, there is nothing to cumulate.

REME OURT

OF

N E V D

947A

8/18/2019 Order Affirming in Part, Reversing in Part and Remanding

6/6

Having considered Cardoza s contentions and concluded that

relief is warranted, we

ORDER the judgment of conviction AFFIRMED IN PART

AND REVERSED IN PART AND REMAND this matter to the district

court for proceedings consistent with this order.

J.Douglas

cc: Hon. James E. Wilson, District JudgeAllison W. JoffeeAttorney General/Carson CityCarson City District AttorneyCarson City Clerk

6

REME COURT

O

NEVADA

947A e