High court reinstates murder charges in Resendiz killing

On a split vote, the Nevada Supreme Court on Wednesday reinstated first- degree murder charges against 10 youths in the death of a Carson City man nearly four years ago.

Sammy Resendiz was beaten to death Aug. 23 1998, in a room at the Roundhouse Motel on Carson Street.

Deputies say a group of Native Americans forced their way into the motel room seeking revenge on a group of Eastside Tokers, a Carson City gang. The people they were looking for were gone but Resendiz, 25, was beaten to death with pipes, bats and clubs. Another man, Carlos Lainez, was seriously injured.

The charges were filed under Nevada's felony murder statute, which makes it automatically a first-degree murder case because it occurred during a burglary. That means the prosecutor doesn't have to prove the killing was willful, premeditated or deliberate.

Defense lawyers, however, convinced District Judge Mike Fondi the killing didn't fit the felony murder statute because the break-in at the motel and the beating were not separate events.

They argued that if District Attorney Noel Waters wanted to convict the defendants of first-degree murder, he should be forced to prove premeditation and deliberation.

Fondi reduced the charges to second-degree murder and Waters appealed.

Four of the seven Supreme Court justices agreed with Waters and ordered the first-degree murder charges reinstated.

The opinion signed by Justices Nancy Becker, Cliff Young and Deborah Agosti says the Nevada Legislature "has specifically included burglary as one of the crimes that can escalate a homicide to first-degree murder without the necessity of proving premeditation and deliberation."

"The legislative language is clear and we are not persuaded that any policy considerations should override the Legislature's determination that burglary should be one of the enumerated felonies appropriate to elevate a homicide to felony murder," the opinion states.

They were joined in a concurring opinion by Chief Justice Bill Maupin who said deterring accidental killings by someone committing a felony is only one of the reasons for the felony murder rule.

"To me, the fundamental purpose of the felony murder rule is to prevent innocent deaths likely to occur during the commission of inherently dangerous felonies," he said.

Waters said that has been the rule in Nevada since the 1880s and the Legislature made its intentions clear by limiting felony murder to just eight felonies, including sexual assault and robbery as well as burglary.

"I'm very happy to see the majority opinion agreed with us," he said. The trial for the first four defendants is scheduled July 22.

The other three members of the court -- Justices Miriam Shearing, Bob Rose and Myron Leavitt -- said the felony murder rule was created specifically to deter felons from killing accidentally or negligently during another crime.

They said the California Supreme Court as well as other state courts have ruled that when there is a break-in for the specific purpose of committing battery -- such as in the Resendiz killing -- then the break-in is an element of the murder, not separate.

They quoted the California court ruling which said "a burglary based on intent to assault with a deadly weapon is included in fact within a charge of murder and cannot support a felony murder instruction."

That court ruled the prosecution must be required to prove premeditation and deliberation to win a first-degree murder conviction and the three Nevada justices said that should be Nevada's rule.

"Because the burglary and the homicide share the same underlying intent, the felony murder rule should not apply," they wrote. "Application of the rule would bootstrap the homicide into first-degree murder simply because of the location of the homicide."

Doing that, they argued, "unfairly elevates a crime to first-degree murder without requiring the state to prove willfulness, deliberation and premeditation."

Allison Joffee, who represents Rocky Boice Jr., said the Supreme Court's decision is wrong.

"The rest of the country, with very few exceptions, agrees with the dissenting opinion," she said. "It doesn't make sense that a fight inside (a room) can be first-degree murder but a fight outside is not," she said.

Joffee said the felony murder law should be applied to some one's home but "not to a party room in a motel where a bunch of gang-bangers come and go, drink, use drugs."

Waters said he expects the court will use the same logic in ruling on the Anthony Echols case. Echols was also charged with felony murder for allegedly breaking into the home of Carson City contractor Richard Albrecht and killing him. Judge Bill Maddox dismissed the charge using the same logic Fondi applied in the Resendiz case.

"I expect a decision in the Echols case to follow pretty shortly," said Waters.

The 10 defendants in the case are Rocky Boice Jr., Julian Contreras, Lew Dutchy, Clint Malone, Frederick Fred, Jessica Evans, Jaron Malone, Elvin Fred, Sylvia Fred and Michael Kizer. Two of the original defendants, Alejandro Avila and David Moyle, pleaded guilty to conspiracy to commit battery with a deadly weapon.

Boice, Frederick Fred, Dutchy and Clint Malone are scheduled for trial July 22.