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.
J. Kohn, Public Defender, and William M. Waters and Howard
Brooks, Deputy Public Defenders, Clark County, for Appellant.
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.
THE COURT EN BANC.
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.
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.
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
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.
FACTS AND PROCEDURAL HISTORY
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
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.
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. 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.
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.
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.
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.
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
200.450 is neither vague nor overbroad
"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).
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 ...