Rose v. State

255 P.3d 291 (2011)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

D and his friend, Jake Timms, went target shooting in the desert with D's .40 caliber Smith & Wesson semiautomatic handgun. They picked up Watkins and went to a barbeque at the home of another friend, Julius Castano. D brought the gun inside the house and placed it in the family room because he claimed he feared someone might break into his car and steal his registered gun. D, Timms, and Julius handled the gun. D took the magazine out of the gun and pulled the slide back to make sure the chamber was empty. Timms took the gun and put it in a holster on his hip. Timms eventually fell asleep on the couch with the gun still in the holster around his waist. D took the gun from the sleeping Timms and placed it in his waistband. D shot Watkins in the head while she spoke on the phone to her friend. D claimed he aimed the gun at her while she was talking told her to get off the phone. He then shot a single round from his gun and hit the top of her head. Witnesses in the home heard the gunshot, but none of them saw D fire the gun. Medical personnel took Watkins to the hospital where she died from deprivation of blood to the brain. D was stopped driving at speeds approaching 100 miles per hour, and followed him but did not pull him over. D pulled over voluntarily, exited his car, and was taken into custody. D admitted to knowing how to use his gun and knowing that the gun had no hammer. D claimed that he did not know his gun was loaded and that he accidentally shot Watkins. D claimed that he had pointed the gun at the chair next to Watkins to be 'a dick.' He said he gave Watkins 'a squinted look' and smiled to let her know he was playing around. That's when it actually went off. D was charged with one count of murder with use of a deadly weapon. D pleaded not guilty and challenged the probable cause to support the indictment. The district court denied the petition. D motioned to strike the second-degree felony-murder theory and asked the court to apply the merger doctrine, arguing that 'assault with a deadly weapon cannot support a murder conviction under the second-degree felony-murder rule because to allow that would alleviate the State from ever having to prove intent to kill in all cases wherein a killing results from a felonious assault.' The district court denied the motion. D argued there was no evidence of premeditation and deliberation that would subject him to first-degree murder. That motion to strike was denied. D further objected to all jury instructions concerning murder, and the district court overruled each objection. D was convicted of second-degree murder and appealed.