The attorney for a Carson City man told Nevada's Supreme Court on Tuesday there isn't enough evidence to sustain his second-degree murder conviction and that his 20- to 50-year sentence is out of line compared to what other defendants received in a 1998 beating death.
Forensic evidence indicated Rocky Neil Boice Boice, who was 19 when the beating occurred in 1998 in a Carson City motel room, didn't strike the blows that killed Sammy Resendiz, said attorney Karla Butko of Reno.
She said Boice hit the victim three times with a broom handle, then fled the room at the Roundhouse Motel, calling for several others to follow him. They did, but not until Resendiz, a member of the Eastwood Tokers gang, had been hit more than 20 times - including with a baseball bat.
Butko told the court evidence and testimony showed it was one of the others who used the bat on the victim.
"The critical blows came from Mr. (Julian) Contreras, who is on parole as we speak," she told the court. Contreras pleaded guilty to battery in 2002.
She said Boice hit Resendiz because he thought the victim was going for a gun but stopped when he realized there was no weapon.
By trying Boice first with murder charges still pending against the other defendants, she said, prosecutors made it impossible for them to testify in support of Boice's claims there was no intent to kill anyone.
"They made virtually all his supporting witnesses unavailable," she said. "They left him all alone. That's absolute unfairness."
But she said Judge Michael Griffin allowed testimony about Boice's statements made to others in the group after the crime, prejudicing his case. Butko also charged that Griffin's critical treatment of one of Boice's lawyers in front of the jury prejudiced the panel against the defendant.
She said the jury acquitted Boice on assault and battery charges, which effectively says jurors found no intent to kill, yet convicted him of second-degree murder. She said that means the jury reached its conclusion Boice was guilty of murder by using the gross misdemeanor charge of conspiracy. That alone, she said, warrants overturning the conviction.
She also noted all the other defendants made plea bargains after Boice's conviction. The most serious sentence imposed on any of the other nine defendants allowed for release in 26 months.
Carson District Attorney Noel Waters said Boice was one of the ringleaders and gathered the group to go to the motel room "to confront anyone they found" after Boice's cousin Jessica Evans was shoved and insulted by one of the Toker gang members there.
He rejected arguments that statements made by the defendants after the fact can't be used to show a conspiracy. He said that is allowed in the law.
Justice Deborah Agosti said she agreed with Butko that "there's no question there's a huge disparity in sentences." Waters said with the second-degree murder conviction, "Rocky Boice got the minimum sentence the law allows in this case."
The high court panel of Justices Agosti, Nancy Becker and Michael Gibbons took the case under submission.
