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Pimentel v. State

Supreme Court of Nevada

June 22, 2017

THE STATE OF NEVADA, Respondent. 133 Nev.Adv.Op. 31

         Appeal from a judgment of conviction, pursuant to a jury verdict, of murder with use of a deadly weapon. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.

          Philip J. Kohn, Public Defender, and William M. Waters and Howard Brooks, Deputy Public Defenders, Clark County, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Sandra DiGiacomo and Jonathan E. VanBoskerck, Chief Deputy District Attorneys, Clark County, for Respondent.



          CHERRY, C.J.

         Appellant Luis Pimentel appeals his conviction of first-degree murder. Pimentel and Robert Holland had been shouting at each other throughout the evening, mostly regarding a mutual female friend, before Holland arrived at Pimentel's home to confront him. During the fight, Pimentel shot Holland twice, including once after Holland had already-collapsed from the first shot. Holland died from his wounds.

         NRS 200.450 provides that if any "person, upon previous concert and agreement, fights with any other person" and "[s]hould death ensue to [the other] person in such a fight, " the surviving fighter is guilty of first-degree murder. Pimentel argues that NRS 200.450 is void because it is both unconstitutionally vague and overbroad. We hold that NRS 200.450 is not vague because it provides a person of ordinary intelligence fair notice of what conduct is prohibited and because it sets forth clear standards that prevent arbitrary enforcement. We also hold that NRS 200.450 is not overbroad because it does not criminalize protected speech, but the ensuing fight and potential resulting death.

         In Wilmeth v. State, 96 Nev. 403, 405-06, 610 P.2d 735, 737 (1980), we held that where a challenge to fight is accepted and the decedent unilaterally escalated the fight with a deadly weapon, the survivor was not entitled to a self-defense jury instruction. Although we noted there could be some cases in which a mutual combatant could be entitled to such an instruction, the factual differences between the instant case and Wilmeth are not legally consequential. Therefore, the district court did not abuse its discretion by instructing the jury that although self-defense was available as a defense to first-degree murder under the traditional theory of murder, it was not available as a defense to murder under the challenge-to-fight theory.

         We are also asked to consider whether the State's expert witness violated the exclusionary rule by remaining in the courtroom during other witnesses' testimony and whether she exceeded the scope of her purpose by impeaching the defendant's trial testimony with statements he made to her during a court-ordered, independent psychological examination. Due to an insufficient record, we are unable to determine whether the expert's presence violated the exclusionary rule. Regarding her testimony, however, we hold that it was error to allow the expert witness to impeach PimenteFs testimony with statements he made at his court-ordered evaluation, but we conclude that the error does not require reversal, as it was harmless due to the fact that PimenteFs own testimony was enough, in and of itself, to support his conviction.[1]


         Holland had been in a romantic relationship with Amanda Lowe. Unbeknownst to Holland, Lowe also had a sexual relationship with PimenteL Pimentel and Lowe were together at a casino when Holland, who found out the two were together, angrily confronted them. Casino security eventually asked Holland to leave. Holland left, and Lowe followed him outside, where Holland slapped Lowe, who then reentered the casino. Holland, who remained outside, happened upon two of his friends, Timothy Hildebrand and Shannon Salazar, in the parking lot and asked them to enter the casino to convince Lowe to come back outside to talk. Hildebrand and Salazar were unsuccessful. Holland later asked his father, who came to pick him up, to find Lowe inside the casino to convince her to talk to Holland outside. Holland's father was also unsuccessful.

         Eventually, Pimentel and Lowe left the casino. Holland began arguing with them as they walked to PimenteFs hotel room on the property. Pimentel went to his room, but Lowe stayed in the parking lot to talk to Holland. Holland again struck Lowe and security intervened. Pimentel left his room and confronted Holland, and although no punches were thrown at that time, the two shouted back and forth at each other in a manner that could reasonably be interpreted as either a challenge-to-fight and as an acceptance thereof.[2]

         After this altercation, Hildebrand and Salazar drove Pimentel and Lowe to Pimentel's apartment. Holland got a ride to Pimentel's apartment from his father. Once at the apartment complex, Holland punched Pimentel, initiating a fistfight. During the altercation, Pimentel shot Holland twice, including once after he had already fallen to the ground.[3] After shooting Holland, Pimentel threw the gun away. Pimenteled the scene and boarded a bus. The police found Pimentel on the bus not far from the scene of the shooting and arrested him.

         In its initial criminal complaint, the State charged Pimentel with murder with use of a deadly weapon under the theory that the murder was committed with malice aforethought, premeditation, and deliberation. See NRS 200.010. After the preliminary hearing, the State added a charge of carrying a concealed weapon, see NRS 202.350, and a theory of first-degree murder involving a killing as the result of a challenge to fight, see NRS 200.450.

         Pimentel noticed Dr. Briana Boyd as an expert witness who would testify regarding post-traumatic stress disorder (PTSD). In response, the State filed a motion to compel Pimentel to submit to an independent psychological examination. The State also supplemented its notice of expert witnesses to include Dr. Melissa Piasecki, an expert in forensic psychiatry. The district court granted the State's motion and compelled Pimentel to undergo a psychological evaluation with Dr. Piasecki.

         After Pimentel rested, the State called Dr. Piasecki during its rebuttal case. Dr. Piasecki had observed Lowe's, Pimentel's, and Dr. Boyd's testimony prior to taking the stand. Dr. Piasecki answered questions throughout her testimony comparing Pimentel's statements during the evaluation to his statements during trial testimony.

         After the close of evidence, Pimentel objected to the district court's instruction regarding self-defense being unavailable under a challenge-to-fight theory. Although the jury acquitted Pimentel of possession of a concealed firearm, it found Pimentel guilty of first-degree murder with the use of a deadly weapon. The jury, however, was not asked to indicate which theory of first-degree murder it used to convict. The district court subsequently entered its judgment of conviction, in which it sentenced Pimentel to 20-50 years for the murder conviction and a consecutive term of 32-144 months for the deadly weapon enhancement, DISCUSSION

         NRS 200.450 is neither vague nor overbroad

         Any "person, [who] upon previous concert and agreement, fights with any other person or gives, sends or authorizes any other person to give or send a challenge verbally or in writing to fight any other person, the person giving, sending or accepting the challenge to fight any other person" is guilty of at least a gross misdemeanor under the challenge-to-fight law. NRS 200.450(1). "Should death ensue to a person in such a fight, or should a person die from any injuries received in such a fight, the person causing or having any agency in causing the death . . . is guilty of murder in the first degree" NRS 200.450(3).

         Pimentel argues that NRS 200.450 is unconstitutionally vague because it fails to define its essential terms, such as "previous concert and agreement, " "challenge, " or "acceptance, " and thus, one cannot reasonably conform his or her conduct to avoid criminal liability. He also claims that NRS 200.450's allegedly unascertainable terms allow for arbitrary enforcement. Finally, Pimentel argues that NRS 200.450 is overbroad because it can ...

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