The Nevada Supreme Court on Thursday upheld a Carson City man's 20- to 50-year sentence in a 1998 motel-room beating death
Rocky Boice Jr. appealed his sentence in the death of Sammy Resendiz on 12 grounds, including that the sentence was disproportionate to any of 10 other American Indians originally charged in the case.
After Boice, the most severe sentence was 26-65 months in prison for Lew Dutchy. None of the others are in prison today, according to Boice's defense attorney.
But in a 44-page order, Justices Nancy Becker, Deborah Agosti and Mark Gibbons rejected all of the defense arguments.
Boice's lawyer Karla Butko argued there wasn't enough evidence to support the second-degree felony murder conviction, that the district judge admitted hearsay testimony Boice couldn't challenge by cross examination, that jury instructions were improper and that the deadly weapon enhancement which doubled his maximum penalty to 50 years was improper.
Boice was one of the leaders of the group which went to a north Carson Street motel Aug. 22, 1998, after one of their number, Jessica Evans, had been roughed up by a member of the Eastwood Tokers gang during a party.
The Toker they were looking for wasn't there, but the group beat Resendiz with a variety of weapons including a thick broom handle, a piece of metal and a metal bat. Carlos Lainez was severely injured and Resendiz died of massive head injuries.
Evidence showed the stick Boice carried probably could not have caused the death, even though Boice hit the victim three times. But the high court found there was ample evidence to convict him as a principal to second-degree murder.
They said evidence showed Boice helped get the group together to go to the motel, led them into the room and struck the victim.
"The jury convicted Boice as a principal to second-degree felony murder," the court ruled. "All the jury had to find was that Boice aided, abetted or encouraged another in murdering Resendiz."
The justices found that the admission of out-of-court statements by other members of the group didn't violate Boice's rights despite the fact he couldn't cross examine them due to the fact they still faced possible murder charges in the case. They said the statements had no bearing on Boice's behavior.
And the justices rejected the argument Boice should get a new trial or sentencing because the prison time he received was "unreasonably disproportionate to the sentences the other co-defendants received."
They said that claim requires the defendant demonstrate what happened was directed unfairly at a particular class of person.
"There is no evidence that the prosecution based its decision to prosecute Boice on race, religion, gender or any other arbitrary classification," the court ruled. "All defendants were Native Americans."
And the justices pointed out, "the relative inquiry is whether the punishment is proportionate to the crime, not to the sentences of other co-defendants."
The decision also rejects other claims, including that the judge unfairly prejudiced Boice's case by chastising his lawyer for conduct in court and unfairly limiting cross-examination of witnesses.
Because the decision was given by a three-member panel of the Nevada Supreme Court, Boice's lawyers could continue the appeal by asking for a rehearing by all seven justices.
Contact Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.