Nancy Saitta
By Geoff Dornan
Appeal Capitol Bureau
The Nevada Supreme Court ruled Friday that the felony murder statute can't be used when the intent to rob the victim was formed after the killing.
Under the felony murder statute, the prosecution doesn't have to prove the elements which make up first-degree murder - in particular, premeditation. They only have to prove the murder was committed during the commission of another felony, such as burglary or robbery for it to qualify as first-degree murder.
In Carl Joe Henry's case, Nancy Saitta - then a Clark County district judge, now a member of the Supreme Court - instructed the jury felony murder could be found where the intent to rob was formed after the killing.
"While this was a harmless error for the robbery conviction, it was not harmless for the first-degree murder conviction and we therefore reverse Henry's murder conviction," according to the order by Chief Justice Mark Gibbons and Justices Bill Maupin and Michael Cherry.
Henry, 29, admitted the murder and the robbery, telling police on tape he stole prescription drugs form the victim's apartment after killing the victim with a crowbar. He was sentenced to life without possibility of parole for the killing and 35 months for the robbery.
The felony murder statute has long been the object of protests by defense lawyers who argue it lifts too much of the prosecution's burden in proving first-degree murder.
Henry also argued the prosecutor improperly elicited testimony about how criminal suspects tend to be liars and that the detective testifying about the case told jurors defendants are "not always forthright."
The high court ruled those comments were improper and the district judge was wrong to admit the testimony.
"However, Henry admitted that he killed the victim and stole prescription drugs from the victim's home," the court wrote. "As such, any error was harmless beyond a reasonable doubt."
Henry will get a new trial on the murder charge but, if the prosecution wants a first-degree murder conviction, they will have to prove the elements of the crime: That it was a "willful, deliberate and premeditated killing."
• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.