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Byford v. State2/28/2000
wever, Byford fails to show here how any effect on the witness was relevant. He does not claim that evidence of the prosecutor's statement was necessary to provide context for any action by the witness--the usual basis for such evidence. See id. He argues that it was relevant to show a possible effect on the witness's testimony, but does not explain what that effect was or how it was relevant.
"The decision to admit or exclude evidence is within the sound discretion of the district court." Johnson v. State, 113 Nev. 772, 776, 942 P.2d 167, 170 (1997). We conclude that it was within the district court's sound discretion to exclude this evidence.
V. The instruction on implied malice and the "antisympathy" instruction.
Pursuant to NRS 200.020(2), the jury was instructed: "Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." (Emphasis added.) Byford contends that the emphasized language creates a mandatory presumption, which is unconstitutional. We have held that this instruction is proper if the jury is properly instructed on the presumption of innocence. See Doyle v. State, 112 Nev. 879, 900-02, 921 P.2d 901, 915-16 (1996). The jury received such instruction here.
The jury also received a so-called "antisympathy instruction," which Byford contends undermined his right to have the jury consider all mitigating evidence. This court has rejected this contention where the jury was also instructed to consider any mitigating factors. See Wesley v. State, 112 Nev. 503, 519, 916 P.2d 793, 803-04 (1996). The jury was so instructed here.
We conclude that these instructions were proper.
VI. The instructions defining the mens rea required for first-degree murder.
The jury in this case was instructed:
"Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It may be as instantaneous as successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has been preceded by and has been the result of premeditation, no matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate and premeditated murder."
We will refer to this as the Kazalyn instruction because it first appears in this court's case law in Kazalyn v. State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992).
Byford argues that this instruction is improper because it mandates a finding of willful, deliberate, and premeditated murder based only on the existence of premeditation. Although we reject this argument as a basis for any relief for Byford, we recognize that it raises a legitimate concern which this court should address.
We conclude that the evidence in this case is clearly sufficient to establish deliberation and premeditation on Byford's part. Byford and Williams had talked of "get[ting] rid" of the victim on prior occasions. On the night of the murder, Byford handed the gun to Williams, saying that he (Byford) "couldn't do it," and told Smith to "stay out of it." Thus, it is evident that Byford and Williams discussed shooting the victim before doing so. Williams and Byford then calmly and dispassionately shot the victim in the absence of any provocation, confrontation, or stressful circumstances of any kind. Williams first shot her several times and then, after a passage of some time, shot her several more times. Byford watched this transpire, and when the victim was helpless
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