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Runion v. State12/4/2000
e found in his vehicle. Ballistic tests concluded that cartridge casings and a bullet fragment impounded at the scene were not fired from the .9 mm weapon found in Goldman's vehicle.
Runion's theory of the case was self-defense. He testified that Pendergraft was the initial aggressor. According to Runion, Pendergraft "flipped him off," and then, as their vehicles idled at a red light, Pendergraft yelled, cussed, and made gang signs at Runion. Runion testified that he was afraid for their safety, that he thought Pendergraft was going to shoot them, and that he reached for his gun and shot in the direction of Goldman's vehicle after he saw Pendergraft pull out a gun and point it at him.
Penny Helton, Runion's roommate and friend, testified for the defense about her conversation with him on the night of the shooting. Helton testified that Runion acted very depressed, told her he had shot someone, and cried for a long time. Runion sought testimony from Helton that, three to four days after the shooting, Runion told her that he had fired in self-defense. The prosecution objected, and the district court ruled that the statement was not a prior consistent statement because of an inconsistency in Runion and Helton's recollections as to when Runion made the statement. In closing argument, the prosecutor repeatedly commented on the discrepancy between Runion and Helton's testimony and implied that Runion had never told Helton the shooting was in self-defense.
The jury found Runion guilty of first-degree murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon. In addition to the consecutive terms of imprisonment for the attempted murder with use of a deadly weapon, Runion was sentenced to two consecutive terms of life imprisonment with the possibility of parole for first-degree murder with use of a deadly weapon.
DISCUSSION
I. Proposed jury instruction on apparent danger as a theory of self-defense
Runion contends that the district court erred in refusing to give the jury an instruction he submitted on apparent danger, arguing that the instructions given to the jury regarding self-defense were confusing and misleading. In particular, Runion points out that Instruction 26 misstated the law by including a statutory definition of self-defense that was repealed in 1993, and that Instruction 25 and Instruction 27 include factual scenarios of self-defense dissimilar to the facts in this case. We agree that the instructions given in this case may have misled the jury. Additionally, Runion raises a legitimate concern regarding the sufficiency of self-defense instructions in cases where the evidence presents the issue of apparent danger.
At common law, an individual had a right to defend himself against apparent danger to the same extent as if the danger had been real, provided he acted upon a reasonable apprehension of danger. Specifically, homicide was justified where: (1) the defendant was not the aggressor in the encounter; (2) the defendant was confronted with actual and immediate danger of unlawful bodily harm or he reasonably believed that there was immediate danger of such a harm; and (3) the use of such force was necessary, in a proportionately reasonable amount, to avoid this danger. Nevada's self-defense statutory framework has existed for over seventy years. See NRS 200.120, 200.130, 200.160, and 200.200.
NRS 200.120 states that " ustifiable homicide is the killing of a human being in necessary self-defense." NRS 200.120 (emphasis added). This language seems to state that homicide is justified only when a person is in actual danger.
NRS 200.160 states that homicide is "a
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