Murder charge lessened for the three murder defendants

Murder charges were reduced Friday from first- to second-degree against three defendants charged with the August 1998 beating death of a Carson City man.

The ruling by District Judge Michael Fondi means Julian Contreras, Rocky Boice Jr. and Lew Dutchy, three of 10 people charged in the murder case, cannot face the death penalty if convicted.

The 10 are accused of beating Sammy Resendiz, 25, an ex-gang member, to death in a Carson City motel room Aug. 23, 1998, after a party. A second man, Carlos Lainez, was injured in the assault.

Rocky Boice Sr., father of one of the defendants, said the decision was a relief for his family. "He's got his life hanging in the future," he said. "This is the biggest thing that is happening in this community, and it is important that it is done right."

Fondi affirmed assertions by defense attorneys Allison Joffee, Todd Young and Bill Maddox that the first-degree charge should not be applied to this case.

Only Dutchy was present at Friday's hearing. Contreras and Boice were excused for school.

Young, who represents Dutchy, said the charges were based on a weak interpretation of a law that allows for a first-degree murder charge when it is committed in the commission of a home-invasion battery.

"If the intent is to commit battery and burglary, then premeditation cannot be argued," he said. "To allow the state to 'bootstrap' in that fashion is not what the legislation meant."

Citing a similar case struck down in California, defense attorneys said the wording of the law would make it necessary for District Attorney Noel Waters to prove only the break-in and the murder. He would not have to prove premeditation, as in the case of a traditional first-degree charge.

Waters, however, argued the first-degree charges should stand.

"It should come as no surprise that when a group enters a room armed with clubs, that somebody might die as a result," Waters argued. "It is something that has been part of our laws for a long, long time."

Waters said the best way to decide whether the offense rises to the level of first-degree murder is to allow the jury to interpret the law and choose between first and second-degree murder.

Fondi countered that juries are not typically well-versed in the technicalities of the law.

The lesser charge may present a more difficult set of standards for prosecutors to meet. In addition to proving the actual beating and the resulting death, prosecutors will have to prove "malice of forethought."

Fondi also denied a motion to strike testimony from Carolee Simpson. She testified at the October 1998 preliminary hearing that she had heard Lainez answer a friend's question about his testimony outside of court. Fondi, agreeing with a similar judgment by Justice of the Peace John Tatro, denied the motion.

Two other hearings are scheduled for late March to decide on motions for defendants Fred Fred, Sylvia Fred, Clint Malone, Jessica Evans, Elvin Fred, Jerome Malone and Michael Kizer. All defendants are between the ages of 16 and 25.

Of the original 12 suspects, two have pleaded guilty and received suspended sentences. Alejandro Avila pleaded guilty to gross misdemeanor conspiracy to commit murder and David Moyle pleaded guilty to conspiracy to commit battery with a deadly weapon.

A trial date has not been set.

In a separate hearing Friday morning, Fondi ruled that a Reno Gazette-Journal photographer would not be permitted to take photos during the hearing. Citing U.S. Supreme Court rules, attorney Phil Bartlett argued that "a juvenile has no right to object to cameras in an adult proceeding."

Fondi cited concerns that Dutchy was the only defendant present, but added that his decision didn't preclude photographs at future proceedings.