High Court rejects Boice Jr. again

The Nevada Supreme Court has rejected Rocky Boice Jr.'s latest attempt to reverse his conviction in the beating death of Sammy Resendiz.

His direct appeal, based primarily on the claim his sentence was disproportionate to what the other 10 defendants in the case received, was rejected three years ago. Boice received 10-50 years for second-degree murder, battery and conspiracy in the August 1998 killing. The most severe sentence imposed on any of the others was a maximum 65 months in prison for Lew Dutchy.

Boice was one of the leaders of a group Carson Sheriff's described as a Native American gang, which attacked Resendiz and Carlos Lainez. The motive according to testimony was that a friend, Jessica Evans, had been "roughed up" earlier that evening during a party at the motel thrown by members of the Eastwood Tokers gang. Lainez recovered from his injuries.

After Boice was convicted, all the others pled to lesser charges and received much lighter sentences. They have all since been released from prison.

In his petition for a writ of habeas corpus, Boice's lawyer Richard Cornell argued trial counsel was ineffective for a variety of reasons including that he didn't seek a jury instruction that would allow interpretation of the charge as misdemeanor battery.

Evidence during his trial indicated Boice entered the motel room where Resendiz was staying and struck him at least three times in the head with a thick wooden stick. Others in the group used weapons including a metal bat to hit the victim, who died of massive head injuries.

Cornell also argued the district court erred by rejecting the petition for a new trial based on newly discovered evidence. That evidence consists of statements by three co-defendants - Dutchy, Clint Malone and Evans - that Boice was outside the room when the victim screamed in pain and that another defendant struck the victim.

"While these statements suggest that Boice may not have struck the fatal blows, there is no reasonable probability that the testimony of Dutchy, Malone and Evans would produce a different result at trial," the justices wrote Monday.

The high court panel of Mark Gibbons, Nancy Saita and Michael Cherry rejected the petition for a new trial, ruling that "there was sufficient evidence from which the jury could conclude that Boice directly participated in killing or seriously injuring the victim."

In the original appeal, the court rejected Boice's claim the sentence was disproportionate to what the others received, writing that 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."

Boice could appeal the ruling by asking for an en banc review by the full seven-member court.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.