Resendez case still awaiting Supreme Court decision
April 16, 2002
It’s approaching four years since Sammy Resendez was beaten to death in a Carson City motel room, two years since an appeal was filed over what charges the accused should face and six months since the Nevada Supreme court heard those arguments.
But the case remains in limbo because, to date, the court hasn’t ruled on whether the charges should be first- or second-degree murder.
Deputies say 10 members of a Native American gang forced their way into the Roundhouse Motel on North Carson Street in August 1998 seeking revenge on a group of EastSide Tokers. The people they were looking for were gone but Resendez, 25, was beaten to death with pipes, bats and clubs and Carlos Lainez was seriously injured.
The 10 were charged under the Nevada statute which makes any killing during the course of another felony — in this case burglary — automatically a first-degree murder. District Judge Mike Fondi, now retired, agreed with defense lawyers that was a misinterpretation of the law because first-degree murder should require proving both premeditation and malice. On Feb. 18, 2000, Fondi reduced the charges to second-degree murder.
Carson District Attorney Noel Waters appealed March 15 2000, arguing the Legislature specifically intended such crimes to be treated as first-degree murder and that letting the defendants escape the charge would overturn 115 years of Nevada law.
The case was originally fast-tracked — a process designed to resolve issues in a minimum of time using an accelerated schedule. It fell off the fast track when the issues proved too complex, and the hearing process had to be restarted.
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After opening briefs were filed in January 2001, it took until Oct. 15, 2001, before oral arguments were held before the seven-member court. Lawyers on both sides expressed confidence at that time they’d have an answer soon.
But as of Monday — six months after the oral arguments and three years, eight months after Resendez was killed — there has been no decision.
Justices, while saying they cannot comment on any specific case, note they must carefully consider any ruling that might set a precedent under Nevada law.
All but one of the defendants is out on bail. While awaiting trial, several of them have gotten into minor scrapes with the law including Jaron Malone who is serving four months in the Carson Jail for joyriding and drinking. His bail was revoked when he was sentenced so he will remain there unless the judge lets him reapply.
The argument over what charge they should ultimately face hangs on interpretation of Nevada’s felony murder statute.
Defense lawyers including Tod Young argued before the high court that Waters used the felony murder statute instead of charging their clients with open murder because it relieves him of having to prove premeditation and malice. Under felony murder, he said, all Waters has to prove is that there was a burglary and that murder occurred during it. He argued that, unless premeditation and malice are proven, the maximum charge should be second degree murder.
Waters countered that Nevada law was specifically modified by lawmakers to define murder committed during the course of another felony as first degree murder. He said changing that standard would open the door to reduced charges in many other cases such as murder during a rape.
The 10 defendants in the case are Rocky Boice Jr., Julian Contreras, Lew Dutchy, Clint Malone, Frederick Fred, Jessica Evans, Jaron Malone, Elvin Fred, Sylvia Fred and Michael Kizer. Two of the original defendants, Alejandro Avila and David Moyle, pleaded guilty to conspiracy to commit battery with a deadly weapon.