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The Habeas Citebook: Prosecutorial Misconduct

Nevada Supreme Court: Duress Defense May be Used for Non-Death Penalty Charges, Even When Connected to Charges Punishable by Death

by Dale Chappell

The Supreme Court of Nevada held on December 26, 2019, that the defense of duress — as codified in NRS 194.010(8) but is not available in connection with any crime that’s punishable by death — can be asserted as a defense to a crime that is not punishable by death but requires “proof of intent to commit a crime that is punishable by death.”  

The question of first impression came before the Court when Ivonne Cabrera appealed her convictions and life sentence for murder, attempted murder, conspiracy to commit murder, and burglary. She was found guilty by a jury of all charges after the district court ruled that she could not raise a defense that she acted under duress. The district court ruled that because the charges were all tied to the capital murder charge, the duress defense wasn’t available.

The offense occurred after someone who loaned his car to Cabrera got into an argument with her when she refused to return it. Jose Gonzalez, a friend of Cabrera’s, then went with her to the person’s apartment and shot and killed him and others, while wounding yet another person. Cabrera claimed that she participated in the crime out of fear. She said she “had no choice” because Gonzalez pointed a gun at her, and he had just been released from prison.

Gonzalez pleaded guilty, but Cabrera took her case to trial. On the eve of trial, the State amended the burglary charge to broaden it to burglary with intent to commit assault and/or battery. The district court then said it would allow the duress defense to that charge but not the others. Cabrera elected not to use the defense at all.

The district court instructed the jury that the duress defense could not be raised as a defense to any of the charges except the freshly amended burglary charge. The State argued to the jury at closing that Cabrera could have used the duress defense for the burglary charge but didn’t.

Cabrera was found guilty and sentenced to life in prison without parole, plus additional years for the other convictions. She appealed.

The duress defense is an ancient common law affirmative defense that provides a defendant with a “legal excuse” for the commission of a criminal act, the Supreme Court noted. United States v. LaFleur, 971 F.2d 204 (9th Cir. 1991). However, under common law, duress cannot be used as a defense for murder. Id. 

Nevada law, like the common law, does allow a duress defense for most crimes. Nevada Revised Statutes 194.010(8) states that a duress defense is available for persons “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.” Because Nevada codified the duress defense, whether Cabrera “should have been allowed to assert duress as a defense to all of the charges presents a question of statutory interpretation,” the Court explained. 

The duress defense is unavailable when the crime charged is punishable by death. Because Cabrera’s murder charge was punishable by death, she could not invoke the duress defense for that charge, the Supreme Court said. This was true even though Cabrera did not pull the trigger. An aider and abettor is equally punishable by death, the Court reasoned, finding that the district court did not err in its conclusion on that point.

However, the rest of Cabrera’s charges were open to a duress defense, the Court announced. The Court dismissed the State’s argument that because Cabrera intended to commit murder under the other charges, the law precluded the duress defense. The State relied heavily on a Washington Supreme Court case that held that attempted murder precluded a duress defense. The Washington statute stated that the defense is unavailable for murder or manslaughter, and thus the court concluded it would be an “absurd and strained interpretation” of the duress statute if the exclusion were not also applied to attempted murder. State v. Mannering, 75 P.3d 961 (Wash. 2003).

But in Nevada, the law reads differently, the Supreme Court pointed out. Instead of listing offenses for which duress may not be raised as a defense, the Nevada statute limits the duress defense to the potential punishment, i.e., death penalty. When interpreting a statute, a court must look only to what it plainly says, the Court explained. “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,” the Court stated.

“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 the murder charge,” the Court concluded.

The Court also found that the error was not harmless. Cabrera “presented ample evidence” to support a duress defense,” the Court said. And the State’s argument to the jury that she failed to raise a duress defense turned “what would have been a shield for Cabrera, into a sword against her.” The district court’s instructional error also had a “substantial and injurious effect or influence in determining the jury’s verdict.”

Accordingly, the Court affirmed Cabrera’s murder conviction but held that the duress defense was available to all the other charges. The case was remanded for further proceedings. See: Cabrera v. State of Nevada, 454 P.3d 722 (Nev. 2019). 

Related legal case

Cabrera v. State of Nevada

 

 

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