The robbery charge resulted from allegations that the victim carried two wallets, and one was missing and never recovered. The wallet which remained had 1400 dollars in it, his watch was not taken, his luggage was undisturbed, and his hunting rifle was untouched in the rental car. The only evidence of the wallet in which credit cards, ID, and cash were kept was from wife's testimony that victim always took two wallets on his trips, one with everything and one with extra cash. The only wallet found was one with extra cash. Evidence did not support a finding of kidnapping when evidence showed that defendant had carried the victim from the car where he was shot to the front door wrapped in a blanket, the only logical inference being that the victim was already dead.
Kidnapping requires the willful seizing, confining, or carrying away of a live person.
On a charge of felony murder based on robbery, a robbery occurs if it is shown that defendant simply takes advantage of a terrifying situation that the defendant created and flees with the victim s property. Under Nevada law, the underlying felony conviction in a felony murder case does not merge with the murder conviction and can, therefore, be used as an aggravating circumstance in the penalty phase of the trial. Our legislature has provided that murder committed while the defendant was engaged in the commission of a robbery may be considered as an aggravating circumstance while the elements of a murder committed with premeditation and deliberation by not. A defendant convicted of a felony murder will not automatically receive the death penalty merely because he initially faces one aggravating circumstances. The jury is free to find that any mitigating circumstance outweighs that aggravating factor and is not required to automatically impose death.