Carson City District Attorney Jason Woodbury has filed a 44-page petition asking for a full Nevada Supreme Court review of the decision overturning Leonardo Cardoza’s murder conviction.
Cardoza was convicted of murdering Desiree Bragg, 19, by ramming her with his vehicle, crushing her against the garage of her mother’s home. He was sentenced to life in prison in August 2014 plus added consecutive sentences for use of a deadly weapon and the attempted murder of Bragg’s boyfriend.
But the sentence was overturned in April of this year by a three-judge panel who ruled District Judge James Wilson failed to give an instruction properly defining the elements of first-degree murder — willful, deliberate and premeditated.
The ruling by Justices Michael Douglas, Michael Cherry and Mark Gibbons states that failure to define deliberation, “blurred the distinction between first and second degree murder.” That, they ruled, was “plain error” requiring reversal of the conviction.
Woodbury argued in his petition plain error doesn’t exist when the Appellant and his lawyer contributed to the error. He pointed out at more than one point in the trial, Cardoza’s lawyer, Jesse Kalter, was asked if those instructions should be given, including when jurors asked about the definition of deliberation and he “unequivocally and affirmatively requested that the trial court not issue any additional instructions.”
That, the petition argues, “clearly establishes the intentional waiver of a known right,” which may have been a strategic decision by Kalter.
“The plain error rule does not apply when a right has been waived rather than forfeited,” the petition states.
Woodbury argued en banc review of the panel decision is necessary to “clarify that invited error and waived error preclude plain error review” of a conviction.
“Under the doctrine of invited error, the only question is whether appellant contributed to the error which he now seeks to exploit,” the petition states. “The record in this appeal clearly indicates that Appellant not only contributed to that error, he affirmatively requested it. By definition, plain error does not exist under these circumstances.”
Cardoza’s blood alcohol level at the time of the crash was estimated at 0.28 — more than triple the legal limit. His appellate lawyers argue the defendant was so drunk he was incapable of forming the intent needed to support a first-degree murder conviction.
The order overturning the conviction states: “Cardoza’s inexplicable behavior after he struck the victim — wandering around outside his vehicle, fleeing in his vehicle, crashing into a fence and stumbling back to the victim’s home — is not emblematic of a willful, deliberate and premeditated murder.”
They wrote had jurors been properly instructed, they might not have found him guilty of murder-one.
If the high court refuses to take up the petition and reinstate the murder conviction, Woodbury has said he plans to retry the case.