Supreme Court panel overturns 2007 second-degree murder conviction

By Steve Kanigher

Thursday, July 21, 2011 | 11:35 a.m.

A three-justice panel of the Nevada Supreme Court today cited improper jury instructions in its decision to overturn the second-degree murder conviction of a man who shot his girlfriend in the head following a Memorial Day weekend barbeque in Clark County in 2007.

Brian Rose was convicted of second-degree murder with use of a deadly weapon after killing girlfriend Jackie Watkins while she was using a phone at a friend's home in the 7200 block of Nordic Lights Drive. The conviction before Clark County District Court Judge Michael Villani came despite Rose's argument that he thought the gun was empty and that the shooting was accidental.

Rose had been sentenced to 10 to 25 years in prison, plus an equal and consecutive term for the use of a deadly weapon.

But Chief Justice Michael Douglas and fellow Justices Kristina Pickering and James Hardesty ruled that Villani erred by improperly allowing the jury to consider a merger of assault with a deadly weapon with second-degree felony murder.

The justices said that the Nevada Supreme Court recognizes the so-called merger doctrine in first-degree murder cases, noting that the Legislature has specified felonies that can be used to establish first-degree felony murder but hasn't done so for second-degree murder.

"The assault here is based on Rose's act of aiming the gun at or near Watkins and telling her to get off the phone," Douglas wrote. "The conduct could be viewed as using a deadly weapon to intentionally place the victim in reasonable apprehension of immediate bodily harm by threatening her with immediate violent injury. A jury therefore could find that the felony was assaultive and merged with the homicide.

"Alternatively, a properly instructed jury could have found implied malice based on the circumstances of the killing ... and still convicted Rose of second-degree murder. But based on the facts of this case and the conflicting evidence as to Rose's state of mind, we cannot conclude beyond a reasonable doubt that a rational jury would have found Rose guilty of second-degree murder absent the omitted instruction."

The case was remanded to the district court for further proceedings.