from a judgment of conviction, pursuant to a jury verdict, of
conspiracy to commit murder, burglary while in possession of
a deadly weapon, and two counts each of first-degree murder
with the use of a deadly weapon and attempted murder with the
use of a deadly weapon. Eighth Judicial District Court, Clark
County; Kathleen E. Delaney, Judge.
Office of Patricia M. Erickson and Patricia M. Erickson, Las
Vegas, for Appellant.
D. Ford, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Marc P. DiGiacomo and Alexander G.
Chen, Chief Deputy District Attorneys, Clark County, for
HARDESTY, STIGLICH and SILVER, JJ.
law recognizes that a person should not be punished for a
criminal act that was committed under duress. But there are
limits to the defense. As codified in NRS 194.010(8), duress
cannot be asserted as a defense to a crime that "is
punishable with death." We are asked to consider, for
the first time, whether that limiting language can be
interpreted to include crimes that are not punishable with
death but require proof of intent to commit a crime that is
punishable by death. Considering the statute's plain
language, we conclude that it cannot be interpreted to limit
the duress defense with respect to crimes that are not
punishable with death regardless of the relationship between
those crimes and another crime that is punishable with death.
Accordingly, the district court did not err in precluding
appellant Ivonne Cabrera from asserting duress as a defense
to the crime of first-degree murder because that offense is
punishable with death, but the court did err in precluding
Cabrera from asserting duress as a defense to the other
charged crimes, which were not punishable with death. Because
we are not convinced the error was harmless, we reverse the
judgment as to the convictions of attempted murder with the
use of a deadly weapon, conspiracy to commit murder, and
burglary while in possession of a deadly weapon and remand
for further proceedings as to those charges. We otherwise
affirm the judgment of conviction.
dispute between appellant Ivonne Cabrera and a group of her
friends involving the return of a borrowed car ended with a
shooting that left two people dead and two others injured.
The deadly series of events started when Cabrera loaned her
car to Eric Morales and the car was wrecked while Morales was
driving it. Morales lent his car to Cabrera until her car
could be fixed. Shortly thereafter, Morales began texting
Cabrera asking for his car back. Not wanting to return the
car, Cabrera hid it at a friend's house. Later that
evening, Cabrera used Morales's car to pick up Jose
Gonzales. Cabrera drove to the apartment where Morales lived
with Melissa Marin, James Headrick, and Ashley Wantland.
Armed with a gun, Gonzales entered the apartment through a
bathroom window and opened the front door for Cabrera.
Cabrera tricked Headrick into opening his bedroom door, where
he and Wantland had been asleep. Gonzales entered the room
and shot both Headrick and Wantland. Meanwhile, Cabrera
knocked on Marin's bedroom door. When Morales opened the
door Gonzales entered and shot Morales and Marin while,
according to Marin's trial testimony, Cabrera stood in
the doorway. Morales and Headrick died.
and Gonzales were charged with two counts each of murder with
the use of a deadly weapon and attempted murder with the use
of a deadly weapon, conspiracy to commit murder, and burglary
while in possession of a deadly weapon. The State sought the
death penalty for the murder charges. Gonzales eventually
pleaded guilty, but Cabrera proceeded to trial. Through
pretrial motion practice, the State learned that Cabrera
intended to assert a duress defense-that Gonzales forced her
to drive him to the apartment and help him gain access to the
bedrooms once they were in the apartment. The State filed two
motions in limine: one to preclude Cabrera's use of a
duress defense to the murder charges and another to preclude
her use of a duress defense to the other charges. Cabrera
opposed the motions. The district court granted the
State's motions in part, holding that NRS 194.010(8)
precluded the duress defense to first-degree murder and to
any of the charges that involved an underlying intent to
commit murder. Then, on the eve of trial, the State amended
the information to include two additional theories of
burglary, to wit, burglary with intent to commit assault
and/or battery. The district court indicated it would give
the duress instruction on those two theories but also inform
the jury that duress was not a defense to any of the other
charges. In light of this ruling, Cabrera informed the court
she would not argue duress as to any of the charges.
Nonetheless, consistent with its pretrial ruling, the
district court instructed the jury that duress was not a
defense to the charges of murder, attempted murder,
conspiracy to commit murder, and burglary based on the intent
to commit murder but that it could be a defense to burglary
based on the intent to commit assault and/or battery. During
closing arguments, while Cabrera did not argue duress, the
State highlighted it, indicating to the jury it was available
as a defense to burglary, but Cabrera still chose not to use
jury found Cabrera guilty of all charges but declined to
impose a death sentence for either murder, instead selecting
sentences of life in prison without the possibility of
parole. The district court subsequently sentenced Cabrera to
various terms of years for the other convictions. Cabrera now
appeals from the judgment of conviction.
argues that she should have been allowed to argue duress as a
defense to all of the charges. We agree except as to the
first-degree murder charges.
duress defense is an ancient common law affirmative defense
"which provides the defendant a legal excuse for the
commission of the criminal act." United States v.
LaFleur, 971 F.2d 200, 204 (9th Cir. 1991). Under the
common law rule, duress is not a defense to murder.
Id. at 205; see also 40 Am. Jur. 2d
Homicide § 107 (2019) ("It is generally
held that neither duress, coercion, nor compulsion are
defenses to murder (citations omitted)). A majority of states
follow the common law rule. See LaFleur, 971 F.2d at
205; see also Steven J. Mulroy, The Duress
Defense's Uncharted Terrain: Applying It to Murder,
Felony Murder, and the Mentally Retarded Defendant, 43
San Diego L. Rev. 159, 172 (2006) ("The general
common-law rule is that duress cannot be a defense to murder.
Most states follow this common-law rule, either by statute,
or through case precedent." !(citations
codified the duress defense at NRS 194.010(8). j Accordingly,
whether Cabrera should have been allowed to assert duress as
a defense to all of the charges presents a question of
statutory interpretation. Our review therefore is de novo.
State v. Lucero,127 Nev. 92, 95, 249 P.3d 1226,
1228 (2011). We begin with the statute's text. See
Douglas v. State,130 Nev. 285, 286, 327 P.3d 492,
493 (2014). "The starting point for determining
legislative intent is the statute's plain meaning; when a
statute is clear on its face, a court can ...