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Evidence of premeditation and deliberation is seldom direct, and circumstantial evidence may be taken into account to provide sufficient evidence to support a murder conviction.
Byford, Williams, and two teenage girls were visiting Smith at his parents' residence in Las Vegas on March 8, 1991. Byford was twenty years old, Williams seventeen, and Smith nineteen. Monica Wilkins, who was eighteen, called and told Smith she would pay him for a ride home from a local casino. Smith drove his jeep to pick Wilkins up, accompanied by Williams and one of the girls. After Smith picked up Wilkins and her friend, Jennifer Green, he asked Wilkins for gas money. Wilkins had Smith stop at a Burger King so that she could get some money. Williams went inside the store to see what was taking her so long, and Wilkins told him that she had gotten another ride. Smith and Williams were upset with Wilkins, and after they drove away, Williams fired a handgun out the window of the jeep. Smith testified that Wilkins had angered him, Williams, and Byford before because she had invited them to her apartment to party but then left with other men. Byford and Williams had talked about "getting rid of her" because she was always "playing games with our heads." Smith participated in the talk but took the threats as jokes. Later that night, Smith, Williams, and Byford were together at Smith's house when Wilkins called again for a ride home. Accompanied by Byford and Williams, Smith drove to pick her up. Smith then drove all four of them to the desert outside of town to find a party that Byford heard was taking place. Wilkins told the other three that she had taken LSD earlier and was hallucinating. Smith drove to the usual area for parties, but they found no party. They then stopped so that everyone could urinate. Wilkins walked up a ravine to do so. As Wilkins finished, Byford handed Williams a handgun and said he "couldn't do it." Smith asked Byford what he was doing with the gun, and Byford told Smith to "stay out of it." Williams then shot Wilkins in the back three to five times. She screamed and fell to the ground. Wilkins got up, walked to Williams, and asked him why he had shot her. He told her that he had only shot around her. Wilkins walked up out of the ravine but then felt the back of her neck, saw that she was bleeding, and again confronted Williams. Williams told her that he shot her because she was "a ***." He then walked behind her and shot her again repeatedly. Wilkins screamed and fell to the ground again. Byford then took the gun from Williams, said that he would "make sure the *** is dead," and fired two shots into her head. Byford then got a can of gasoline from the jeep and poured it on Wilkins. Byford tried to hand a lighter to Smith and get him to light the gasoline, but Smith refused. Byford called him a "wussie" and lit the body. As it burned, the three drove off. As they returned to Las Vegas, Byford pointed the handgun at Smith and threatened to kill him if he ever told anyone. About a week after the murder, Byford and Williams had Smith drive them back to the desert to bury the body. After about two more weeks, the body was discovered by target shooters. After the police investigation led to Byford and Williams, Byford asked his girlfriend to provide an alibi for him by telling the police that on the night of the murder they had been on the phone all night. Neither Byford nor Williams testified. However, Williams introduced, over Byford's objection, Byford's testimony from the first trial. The gist of that prior testimony was that Smith and Wilkins were boyfriend and girlfriend, that they argued that night, that Smith shot Wilkins, and that Byford and Williams only aided Smith in concealing the crime. The testimony also included Byford's admission that he had a prior felony conviction for attempted possession of a stolen vehicle. In closing argument, the prosecutor referred to Byford as a convicted felon. The jury found Byford and Williams guilty of first-degree murder with the use of a deadly weapon.
Should Byford’s conviction be reversed by virtue of the improper instructions given by the trial court to the jury (the Kazalyn instruction)?
The Kazalyn instruction did raise a concern and was abandoned by the court. By defining only premeditation and failing to provide deliberation with any independent definition, the Kazalyn instruction blurs the distinction between first- and second-degree murder. However, the evidence in this case was clearly sufficient to establish deliberation and premeditation on Byford's part despite this faulty instruction. Byford and Williams had talked of "getting rid" of the victim on prior occasions. On the night of the murder, Byford handed the gun to Williams, saying that he (Byford) "couldn't do it," and told Smith to "stay out of it." Thus, it was evident that Byford and Williams discussed shooting the victim before doing so. Williams and Byford then calmly and dispassionately shot the victim in the absence of any provocation, confrontation, or stressful circumstances of any kind. Williams first shot her several times and then, after a passage of some time, shot her several more times. Byford watched this transpire, and when the victim was helpless on the ground, he took the gun from Williams, said that he would make sure she was dead, and shot her in the head twice. This evidence was sufficient for the jurors to reasonably find that before acting to kill the victim Byford weighed the reasons for and against his action, considered its consequences, distinctly formed a design to kill, and did not act simply from a rash, unconsidered impulse.