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Runion v. State12/4/2000
looking at you?
RUNION: He was when he pulled his gun out.
COUNSEL: How many shots did the first person in that car fire? Did you mention on direct examination that they had fired shots at you?
RUNION: I thought they fired one shot that I heard.
COUNSEL: One shot is all you think that was fired?
RUNION: One shot is all that I think I heard.
While Runion's testimony supports a theory of self-defense based on actual danger, other evidence adduced at trial also supported an apparent danger theory of self-defense. In particular, witness testimony and other evidence suggested that Goldman, Companioni, Pendergraft, and a fourth occupant of Goldman's vehicle who did not testify at trial, Adam Rodriguez, were gang members and that they had made hand gestures, including gang signs, at Runion. Additionally, a gun was later found in the engine compartment of Goldman's vehicle following the shooting. Moreover, Goldman's version of the events was called into question by the former juror's claim that Goldman had apparently lied on the witness stand. Thus, Runion was entitled to argue actual danger (if the jury believed his testimony) and apparent danger (if the jury found that there was no actual danger but that Runion believed that he saw a gun).
At the close of the evidence, Runion proposed the following instruction to the district court:
SELF DEFENSE (ACTUAL DANGER NOT NECESSARY)
Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in one's mind, as a reasonable person, an honest conviction and fear that one is about to suffer great bodily injury and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing one's self in like danger and if the person so confronted acts in self-defense upon such appearances and from such fear and one's convictions, the right of self-defense is the same whether such danger is real or merely apparent.
The district court refused to give the instruction to the jury on the basis that Runion's testimony prohibited him from arguing apparent danger and that his only theory of defense was actual danger. The district court then submitted the following instructions to the jury.
Instruction 25 quotes NRS 200.120 and NRS 200.130 stating:
Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property or person, against one who manifestly intends, or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.
A bare fear of any of the offenses mentioned above, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears and not in a spirit of revenge.
Instruction 26 was derived from NRS 200.160. However, the district court incorrectly used the 1993 version of that statute rather than the 1996 version in effect at the time of the offense.
Homicide is also justifiable when committed either:
1. In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother or sister, or of any other person in his presence or company, wh
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