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Knife as deadly weapon: inconsistent rulings

Last week, in an unpublished Order (Jonathon Hinton v. State, No. 48643, (7-24-2008)), the Nevada Supreme Court considered a challenge to a jury instruction telling the jury that a knife was a deadly weapon:

"Hinton also contends that the district court usurped the jury's role by instructing the jury that a 'knife' is a deadly weapon as a matter of law. Because Hinton failed to object to the court's deadly weapon instruction at trial, we review the instruction for plain error."

"At trial, the district court instructed the jury that a 'knife' is a 'deadly weapon.'"

"[T]he instruction erroneously informs the jury that a knife is a deadly weapon as a matter of law and thereby relieves the jury of its fact-finding function, diminishes the State's burden of proof, and violates Hinton's right to due process."

"We conclude that the district court's deadly weapon instruction erroneously removed from the jury's consideration the factual issue of whether the knife constituted a deadly weapon, a necessary element of the burglary offense and a required factual finding for the deadly weapon enhancements to the robbery and sexual assault charges. We further conclude that this error was plain and that it affected Hinton's substantial rights. Accordingly, the burglary conviction and deadly weapon enhancements must be reversed."

This decision was signed by Justices Hardesty, Parraguirre, and Douglas.

Compare the language in the Hinton decision with the language from an unpublished order issued last year on this same topic in Jerald Garrett v. State, No. 46354 (7-19-2007):

"Garrett next asserts that the district court erred in instructing the jury that a knife is a deadly weapon for the purposes of the deadly weapon enhancement, rather than allowing the jury to make their own determination. We disagree."

"Generally, it is the district court's duty to determine whether the instrument is an inherently dangerous weapon. It is only 'in a few close cases where the court cannot determine as a matter of law whether the weapon is or is not a deadly weapon,' that the issue is appropriately submitted to the jury..."

"[W]e discern no error in the district court's jury instruction that a knife is a deadly weapon as a matter of law."

This decision was signed by Justices Gibbons, Douglas, and Cherry.

The Nevada Supreme Court should issue a published opinion on this topic so any question about this jury instruction can be resolved with finality. Moreover, the Court should make its unpublished decisions available on its websites so that litigants may have guidance on these issues and so inconsistencies may be known to those following these issues.

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