By the Court, SAITTA, J.:
In the instant case, appellant challenges his conviction arguing that the district court abused its discretion when it refused to answer two questions from the jury during deliberations, when it gave a defense-of-others jury instruction that was unduly confusing and not supported by the evidence, when it refused to give his proffered accomplice-distrust jury instruction, and when it refused to bifurcate the gang-enhancement portion of the trial from the guilt phase. We agree with appellant in several respects and hold that in situations where a jury's question during deliberations suggests confusion or lack of understanding of a significant element of the applicable law, the judge has a duty to give additional instructions on the law to adequately clarify the jury's doubt or confusion. We also hold that, to provide the defendant with a fair trial, the guilt phase of trial must be bifurcated from the gang-enhancement phase. Because the district court failed to answer the jury's question regarding a significant element of conspiracy, refused to bifurcate the guilt and gang-enhancement portions of Gonzalez's trial, and committed other errors, we hold that the cumulative effect of these errors deprived appellant of his right to a fair trial. We therefore reverse Gonzalez's judgment of conviction and remand for a new trial.
In 2011, a brawl between members of two motorcycle gangs, the Vagos and the Hell's Angels, occurred in a Sparks casino. The fight was instigated by Stuart Rudnick, a member of the Vagos. During the fight, another member of the Vagos, appellant Ernesto Manuel Gonzalez, shot and killed Jethro Pettigrew, a member of the Hell's Angels.
Rudnick was initially charged as a coconspirator, but he pleaded guilty to reduced charges and ultimately testified against Gonzalez. Although Rudnick pleaded guilty prior to Gonzalez's trial, he was not sentenced until after he testified against Gonzalez. At trial, Rudnick testified that he and Gonzalez had a meeting prior to the fight with the president of the international chapter of the Vagos. Rudnick further testified that the president put out a "green light" on Pettigrew, meaning that Pettigrew was to be killed, and that Gonzalez said he would kill Pettigrew. No other witnesses testified to
The jury found Gonzalez guilty on all counts. The district court merged the convictions of challenge to fight resulting in death with the use of a deadly weapon and second-degree murder with the conviction of first-degree murder with the use of a deadly weapon. Although the jury found the alleged deadly-weapon and gang enhancements, the district court only imposed sentences for the weapons enhancement. See NRS 193.169(1) (providing that additional enhancement sentence may be imposed for only one enhancement "even if the person's conduct satisfies the requirements for imposing an additional term of imprisonment pursuant to another one or more" of the enhancement statutes).
On appeal, Gonzalez argues, among other claims, that the district court abused its discretion: (1) when it refused to answer two questions from the jury during deliberations, (2) when it gave a defense-of-others jury instruction that was unduly confusing and not supported by the evidence, (3) when it refused to give his proffered accomplice-distrust jury instruction, and (4) when it refused to bifurcate the gang-enhancement portion of the trial from the guilt phase.
This court reviews the refusal to respond to jury inquiries for an abuse of discretion. Tellis v. State, 84 Nev. 587, 591, 445 P.2d 938, 941 (1968).
During jury deliberations, a juror sent two questions to the district court judge. The first question stated:
The second question stated:
Both Gonzalez's attorney and the State agreed that the answers to both questions were no. The district court refused to answer the first question, instead stating:
The district court also refused to answer the second question, stating:
The current law regarding a judge's duty to answer a jury's questions was promulgated in Tellis:
84 Nev. at 591, 445 P.2d at 941.
Here, because Gonzalez does not allege that the given jury instructions were inadequate or incorrectly stated the law, under our decision in Tellis, the district court did not abuse its discretion by refusing to answer the jury's questions. However, we are of the opinion that Tellis does not go far enough in describing a judge's duty to answer questions from the jury during deliberations.
We do not wish to completely overturn Tellis. However, we believe that there should be an exception to the bright-line rule in Tellis regarding situations where the jury's question suggests confusion or lack of understanding of a significant element of the applicable law. See United States v. Southwell, 432 F.3d 1050, 1053 (9th Cir.2005) ("Because it is not always possible, when instructing the jury, to anticipate every question that
Here, the jury's question on conspiracy went to the very heart of that offense. Conspiracy is a knowing agreement to act in furtherance of an unlawful act. Bolden v. State, 121 Nev. 908, 912, 124 P.3d 191, 194 (2005). When a defendant does not know that he or she is acting in furtherance of an unlawful act, there can be no conspiracy. Because the jury's first question suggested confusion or a lack of understanding of this central element of the crime of conspiracy, we hold that the district court abused its discretion when it refused to answer the question. However, because the jury's second question did not suggest confusion or the lack of understanding of a significant element of first- or second-degree murder, the district court did not abuse its discretion when it refused to answer that question.
Whether a jury instruction accurately states the law is reviewed de novo. Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 339 (2009). When the instruction concerns a defendant's right to self-defense, the issue is of constitutional magnitude. See United States v. Sayetsitty, 107 F.3d 1405, 1414 (9th Cir.1997) (stating that "a defendant has a constitutional right to have the jury consider defenses [that] negate [criminal liability]"); State v. Walden, 131 Wn.2d 469, 932 P.2d 1237, 1239 (1997) (indicating that an erroneous instruction on self-defense is an error of constitutional magnitude); see also Harkins v. State, 122 Nev. 974, 989-90, 143 P.3d 706, 716 (2006) (although not identifying the error as one of constitutional magnitude, reviewing whether an erroneous self-defense jury instruction was harmless beyond a reasonable doubt, which is a review that is performed for constitutional errors). However, if the defendant did not object to an instruction, the instruction is reviewed for plain error. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
People v. Alexander, 49 Cal.4th 846, 113 Cal.Rptr.3d 190, 235 P.3d 873, 935 (2010) (citations omitted) (internal quotations omitted).
Jury Instruction 34 states:
Thus, the defense-of-others instruction contained both an instruction on defense of others and an instruction on self-defense. However, Gonzalez never attempted to assert that he acted in self-defense when he shot Pettigrew, and the evidence in the record does not support that defense. No evidence was submitted at trial to support a finding that Gonzalez was in, or believed he was in, imminent danger of serious bodily harm or death when he shot Pettigrew. See NRS 200.200 (defining self-defense). Therefore, we hold that because the included self-defense instruction was irrelevant to the issues raised by the evidence and had the effect of confusing the jury, it was erroneous. See Alexander, 113 Cal.Rptr.3d 190, 235 P.3d at 935.
Jury instructions that are unduly confusing may be erroneous. United States v. Kalama, 549 F.2d 594, 596 (9th Cir.1976).
Here, instructions on self-defense and defense of others were bizarrely combined into a single instruction in a way that could be confusing to the jury. By intertwining the two defenses, the instruction was made unwieldy and unnecessarily confusing for the jury who was then expected to untangle the
However, Gonzalez failed to object to the defense-of-others jury instruction. Therefore, we must review this instruction for plain error. See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
Plain error review considers "whether there was `error,' whether the error was `plain' or clear, and whether the error affected the defendant's substantial rights." Id. Here, while we find that the given defense-of-others instruction was erroneous, we are not convinced that it amounted to plain error. The given jury instruction, while confusing, does not appear to be an incorrect statement of Nevada law. Therefore, we hold that the district court did not commit plain error by giving its defense-of-others jury instruction.
The district court is required to give a cautionary jury instruction when an accomplice's testimony is uncorroborated. Howard v. State, 102 Nev. 572, 576, 729 P.2d 1341, 1344 (1986). If the testimony is corroborated, a cautionary instruction is favored, but failure to grant it is not reversible error. Id. An accomplice-distrust instruction "advises the jury that it should view as suspect incriminating testimony given by those who are liable to prosecution for the identical charged offense as the accused." Riley v. State, 110 Nev. 638, 653, 878 P.2d 272, 282 (1994).
At trial, Gonzales proffered the following jury instruction with regard to the State's witness, Rudnick:
The district court rejected the instruction, stating that it was "unnecessary given [the jury instruction on the duty of weighing the witnesses' credibility]" and it is "inappropriate to single out any one witness, especially in a case where most of the witnesses, the lay witnesses certainly had interests other than solely being a lay witness here."
The district court is incorrect in its belief that it is inappropriate to single out any one witness as less reliable than others. That is, in fact, the entire purpose behind our requirement that an accomplice-distrust instruction be given when the accomplice's testimony is uncorroborated. See Riley, 110 Nev. at 653, 878 P.2d at 282. Here, it is uncontroverted that Rudnick was an accomplice of Gonzalez's because they were both charged with conspiracy to commit the same murder. Therefore, if Rudnick's testimony was uncorroborated, the district court was required to give an accomplice-distrust jury instruction as to his testimony, and failure to do so was error.
The State argues that because Rudnick's testimony was partially corroborated by such things as the casino video of Gonzalez shooting Pettigrew, a cautionary instruction was not required. While it is true that parts of Rudnick's testimony were corroborated by the casino's video recordings of the fight between the Vagos and Hell's Angels and the subsequent killing of Pettigrew by Gonzalez, Rudnick's testimony about the alleged conspiracy, which formed the basis for several of Gonzalez's convictions, was uncorroborated by any other witnesses or evidence.
Furthermore, one of the central issues in this case was whether Pettigrew's death was part of a premeditated conspiracy or occurred in the course of a spontaneous clash between two biker gangs. It would be absurd to conclude, as the State urges, that because some of an accomplice's testimony is corroborated by video that is publicly known to exist and is uncontroverted by the defendant, the entirety of the accomplice's testimony is considered to be corroborated for the purposes of Howard. Therefore, we hold that because material portions of Rudnick's testimony were uncorroborated, the district court abused its discretion by refusing to give an accomplice-distrust instruction.
We normally review decisions regarding bifurcation of enhancement portions of a trial for an abuse of discretion. See People v. Hernandez, 33 Cal.4th 1040, 16 Cal.Rptr.3d 880, 94 P.3d 1080, 1085 (2004) (reviewing district court's refusal to bifurcate gang-enhancement portion of trial from guilt phase for abuse of discretion). However, we have held that in situations where a failure to bifurcate compromises a defendant's right to a fair trial, bifurcation is mandatory. See Brown v. State, 114 Nev. 1118, 1126, 967 P.2d 1126, 1131 (1998) (holding that severance is mandatory in multicount indictments where one count is of possession of a firearm by an ex-felon); see also Morales v. State, 122 Nev. 966, 970, 143 P.3d 463, 465 (2006) (holding that bifurcation procedure accomplishes the same policy goals as the severance mandated in Brown).
"[I]nstitutional values such as judicial economy, efficiency, and fairness to criminal defendants often raise competing demands." Brown, 114 Nev. at 1126, 967 P.2d at 1131. However, in balancing these demands, ensuring that a defendant's right to a fair trial is not compromised is paramount. Id. We have previously held that when the State seeks convictions on multiple counts, including a count of possession of a firearm by an ex-felon, the prejudice to the defendant of introducing evidence of prior convictions in order to establish that the defendant is an ex-felon requires the severance of the counts. Id.
The State attempts to distinguish Brown from the current case by alleging that evidence of a prior conviction is uniquely prejudicial. However, we are not so certain. Is evidence of a prior conviction more prejudicial than the evidence presented here by a gang expert—namely, that Gonzalez was a member of a criminal gang whose members in Arizona commonly sell narcotics, possess stolen property, and commit assault and homicide? Is it more prejudicial than the evidence presented by another gang expert that Gonzalez is a member of a criminal gang that moves firearms, tries to set up robberies on dope dealers, tries to extort motorcycles from people, traffics in narcotics, and commits rape? This, among other highly prejudicial evidence used to prove the existence of a criminal gang, is a type of evidence that would generally not be admissible during a guilt phase of a trial but is statutorily admissible in order to prove a gang enhancement. See NRS 193.168(7)(a)-(g).
This is not to say that evidence of gang affiliation is not still admissible for other purposes, such as to show motive. See Butler v. State, 120 Nev. 879, 889, 102 P.3d 71, 78 (2004) ("This court has repeatedly held that gang-affiliation evidence may be relevant and probative when it is admitted to prove motive."). However, such evidence will not be admissible in the guilt phase of a trial solely for the purpose of proving a gang enhancement. Here, while some of the evidence
Therefore, because the admission of highly prejudicial evidence to prove a gang enhancement that would not otherwise be admissible to prove the underlying crime compromises a defendant's right to a fair trial, we hold that the guilt phase of a trial must be bifurcated from the gang-enhancement phase. Thus, we conclude that the district court abused its discretion by refusing to bifurcate the guilt and gang-enhancement portions of the trial.
"[I]f the cumulative effect of errors committed at trial denies the appellant his right to a fair trial, this court will reverse the conviction." DeChant v. State, 116 Nev. 918, 927, 10 P.3d 108, 113 (2000). "Relevant factors to consider in deciding whether error is harmless or prejudicial include whether the issue of innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged." Id. (internal quotations omitted).
Here, the errors directly affected Gonzalez's convictions for conspiracy and, by extension, undermined his affirmative defense that he was acting in defense of others. Furthermore, the crimes he was convicted of were grave. Therefore, we hold that the cumulative effect of these errors has denied Gonzalez the right to a fair trial.
The district court abused its discretion when it refused to answer the jury's question that suggested the jury was confused or lacked understanding of a significant element of conspiracy to commit murder. It also abused its discretion when it refused to give an accomplice-distrust instruction regarding Rudnick's uncorroborated testimony and refused to bifurcate the guilt and gang-enhancement phases of Gonzalez's trial. Therefore, because the district court's errors cumulatively denied Gonzalez of his right to a fair trial, we order his judgment of conviction reversed and remand to the district court for a new trial.
We concur: HARDESTY, C.J. and PARRAGUIRRE, DOUGLAS, CHERRY, GIBBONS and PICKERING, JJ.
