Duenas (Antonio) v. State ( 2013 )

 older. Thereafter, the district court instructed the jury to complete a
special verdict form, containing four options—(1) all jurors find Duenas
guilty based on premeditated and deliberate murder, (2) all jurors find
Duenas guilty based on felony murder, (3) some of the jurors find Duenas
guilty based on premeditated and deliberate murder and some jurors find
Duenas guilty based on felony murder, and (4) all jurors find Duenas
guilty based on premeditated and deliberate and felony murder. The
jurors chose the third option. Duenas contends that the special verdict
form shows that at least some of the jurors based their verdicts on a
premeditated-murder theory, thereby rejecting the alternative theory of
felony murder, and because the State presented insufficient evidence of
premeditated murder, his first-degree murder conviction must be
reversed.
A special verdict was unnecessary in this case because the
jury does not need to be unanimous on a particular theory of culpability to
sustain a conviction for a single offense, see generally Anderson v. State,
121 Nev. 511, 515, 118 P.3d 184, 186 (2005), and we discourage the use of
special verdicts absent circumstances requiring a special verdict. See e.g.,
McConnell v. State, 120 Nev. 1043, 1069, 102 P.3d 606, 624 (2004)
(requiring a special verdict in death penalty cases where the State
charges alternative theories of premeditated and felony murder and bases
a felony aggravating circumstance on the predicate felony underlying the
felony-murder theory). Moreover, we are not convinced that the special
verdict form establishes that the jurors who found Duenas guilty based on
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a premeditated-and-deliberate-murder theory rejected the felony-murder
theory. For example, the special verdict form did not offer an option
stating that all jurors concluded that the evidence supported a felony-
murder theory but some of them also concluded that the evidence
supported the premeditation theory.
The evidence presented at trial overwhelmingly supports a
felony-murder theory, see Origel-Candido v. State, 114 Nev. 378, 381, 956
P.2d 1378, 1380 (1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979), and
that is sufficient to uphold the conviction, see generally Anderson, 121
Nev. at 515, 118 P.3d at 186 ("A unanimous general verdict of guilt will
support a conviction so long as there is substantial evidence in support of
one of the alternate theories of culpability."). The evidence shows that the
victim worked as a store clerk at the Loco Liquor Store in Las Vegas. As
requested by his supervisor, the victim kept a Glock 9mm handgun with
him during his shift. On the night of August 7, 2009, Duenas entered the
liquor store with a Ruger P75 handgun. At some point, the victim and
Duenas exchanged gunfire. Shortly thereafter, the victim's body was
discovered behind the sales counter. Six shell casings were discovered
near the sales counter—four behind the counter, one on top of the
counter, and one in front of the counter. The victim fired those shots.
One of the shots hit Duenas in the left hip. Duenas fired at least four
shots, two of which inflicted substantial injuries to the victim, resulting in
his death.
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Having considered Duenas' argument and concluded that it
lacks merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Douglas Saitta
cc: Hon. Linda Marie Bell, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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