705 P.2d 614 (Nev. 1985), 14564, McKenna v. State

Docket Nº:14564.
Citation:705 P.2d 614, 101 Nev. 338
Party Name:Patrick Charles McKENNA, Appellant, v. The STATE of Nevada, Respondent.
Case Date:August 27, 1985
Court:Supreme Court of Nevada

Page 614

705 P.2d 614 (Nev. 1985)

101 Nev. 338

Patrick Charles McKENNA, Appellant,


The STATE of Nevada, Respondent.

No. 14564.

Supreme Court of Nevada.

August 27, 1985.

Page 615

[Copyrighted Material Omitted]

Page 616

        Morgan Harris, Public Defender, Robert D. Larsen, Margaret Lafko, and Rick Ahlswede, Deputies, Las Vegas, Kenneth James McKenna, Reno, for appellant.

        [101 Nev. 339] Brian McKay, Atty. Gen., Carson City, Robert Miller, Dist. Atty., James Tufteland, and Chris Owens, Deputies, Las Vegas, for respondent.

[101 Nev. 341] OPINION

        PER CURIAM:

        On August 30, 1982, Patrick Charles McKenna was convicted of the first degree murder of a fellow inmate in the Clark County jail, for which he was sentenced to death. 1 Having reviewed the record on appeal, we conclude that appellant's assignments of error are without merit and we, therefore, affirm his conviction and sentence.


        The body of 20 year old Jack Nobles, serving a sentence for burglary, was discovered in cell 4A2 of the Clark County jail at approximately 7:25 a.m. on January 6, 1979. A medical expert stated that asphyxia from ligature strangulation was the cause of death. He estimated that death occurred between the late evening hours of January 5, 1979 and the early morning hours of January 6, 1979.

        January 5, 1979 was a Friday, and as was customary, inmates moved freely about the cell block until early the next morning, when they were confined to their cells. A majority of the witnesses testified that lockdown occurred at approximately 2:30 a.m. on January 6, 1979.

        Substantial evidence established that after lockdown on January 6, 1979, Nobles was confined in cell 4A2 with McKenna, David Rossi and David Denson.

        Denson testified that when he fell asleep after lockdown, between 2:30 and 3:00 a.m., Rossi was in bed, and McKenna and Nobles were playing chess. Denson stated that before leaving the cell for breakfast, and prior to discovering that Nobles had been murdered, McKenna asked him to pass a shank, or homemade knife, the handle of which was wrapped with fabric ligature, to inmate Seebon Harris.

        Rossi testified that he witnessed McKenna murdering Nobles. He was awakened by Nobles climbing into the upper bunk of the bed, and a short time later, he noticed McKenna coming towards the bunk. Rossi heard McKenna and Nobles arguing in whispers, but could only make out the word "chess." Next, McKenna, using the toilet and the bottom of Rossi's bunk for footing, positioned himself over Nobles' bed. Rossi testified he then heard a wheezing sound. Several seconds later, he saw McKenna choking Nobles. Blood was running down McKenna's arm, and he did not turn Nobles loose until 3 to 5 minutes had elapsed. Then McKenna put Nobles back onto his (Nobles') bunk and covered him with a blanket.

        [101 Nev. 342] The testimony of Michael Dennis Jones was read into the record. Jones, who committed suicide prior to the trial, was in a nearby cell at the time of Nobles' death, and had testified for the state at McKenna's preliminary hearing. At about 1:30 a.m. on January 6, 1979, Jones observed

Page 617

McKenna and Nobles having an argument relative to a sexual act, during which McKenna shoved Nobles against a bunk bed and choked him. Nobles' knees buckled, and he dropped to the ground. Jones further testified that while this was taking place, Rossi was in his bed and Denson was asleep. According to Jones, after Nobles dropped to the ground, Rossi helped McKenna lift Nobles to his bunk.

        Seebon Harris testified that on the morning of January 6, 1979, he received the shank that had been passed from McKenna to Denson. Upon learning that Nobles had been murdered, Harris gave it to a guard. Harris also related that McKenna was very upset on January 5, 1979 2 , and that just prior to dinner he struck another inmate without provocation. Harris also talked with Nobles shortly before dinner on January 5, 1979. Nobles, upset and crying, stated that McKenna was mad at him, and then said, "Why don't them damn guys just leave me alone."

        Detective Burton Levos was the state's last witness. During an interview conducted January 8, 1979, he asked McKenna, "Are you involved in the case of the jail in reference to Nobles' murder?" When the question was completed, McKenna looked at him, nodded yes, and smiled.

        The defense attempted to impeach most of the state's witnesses by showing that they received lenient treatment after giving information implicating McKenna.

        The defense elicited testimony through inmates Ronnie Lee Jones and William Wirsen that Nobles was inclined to argue. 3 Jones testified that Rossi and Nobles were engaged in a dispute over a chess game the night before Nobles' body was discovered. Jones also said that during the argument he heard a noise like someone hitting the cell bars or the floor.

        The defense stressed the inconsistency between Rossi's testimony that McKenna had choked Nobles with his arms and the medical expert's testimony that the cause of death was asphyxia due to ligature strangulation.


        During voir dire two prospective jurors, Jackson and Rosa, [101 Nev. 343] expressed reservations about the death penalty. The trial judge excluded both for cause. Appellant contends that exclusion of these potential jurors violated the standards established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh'g denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968), and its progeny. We disagree.

        Initially, we note that appellant did not object to the exclusion of Jackson, and his objection to the exclusion of Rosa was untimely. Appellant's omission and delay in objecting are significant under the new interpretation placed on Witherspoon by Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The Wainwright court stated that appellant's failure to object was an indication of his contemporaneous impression that the juror was biased and properly excluded.

        In Wainwright, id. 105 S.Ct. at 852, the Supreme Court elucidated further on the Witherspoon standard by stating:

That standard is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." We note that, in addition to dispensing with Witherspoon 's reference to "automatic" decisionmaking, this standard likewise does not require that a juror's bias be proved with "unmistakable clarity." [Footnote omitted.]

Page 618

        The Supreme Court also emphasized the discretionary role of the trial judge when it stated:

Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. For reasons that will be developed more fully infra, this is why deference must be paid to the trial judge who sees and hears the juror.

        Id. at 852-853.

        Accordingly, we conclude that the trial judge did not err in excluding prospective jurors Rosa and Jackson.

        McKenna also contends that the jury was devoid of persons unalterably opposed to the death penalty and was therefore biased in favor of the prosecution during the guilt phase of the trial. Additionally, appellant contends such a jury violated his right to a fair trial because the jury was an unrepresentative cross-section of the community.

        We note initially that this issue was not raised in the trial court by either a timely objection or a request for an evidentiary [101 Nev. 344] hearing. Furthermore, under Witherspoon, we are not required to presume that a death-qualified jury is biased in favor of the prosecution. Rather, the accused has the burden of establishing the non-neutrality of the jury. Witherspoon, 391 U.S. at 520, n. 18, 88 S.Ct. at 1776, n. 18. See also Hovey v. Superior Court of Alameda Cty., 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301 (1980) (rejecting appellants' non-neutrality studies because of their failure to take into account that California excludes persons who would automatically vote for the death penalty, as well as those who would automatically vote against it); Rowan v. Owens, 752 F.2d 1186, 1190 (7th Cir.1984) (noting that the crucial question is whether a death-qualified jury is likely to convict innocent people); Mattheson v. King, 751 F.2d 1432, 1442 (5th Cir.1985) (holding a death-qualified jury does not deprive a defendant of a fair and impartial jury even if, on the average, it would favor the prosecution). Because McKenna failed to prove the non-neutrality of the jury which convicted and sentenced him, we reject this assignment of error.


        Detective Burton Levos testified concerning appellant's nonverbal response to Levos' question: "Are you involved in the case of the jail in reference to Nobles' murder?" McKenna's response, a look, a nod yes, and a smile, was made at an interview conducted on January 8, 1979. 4

        McKenna first contends that his nonverbal response was privileged as a plea negotiation under NRS 48.125. 5 "In determining whether a discussion can be properly characterized as a plea negotiation, we must consider the accused's subjective expectation of negotiating a plea at the time of discussion, and the reasonableness of that expectation." See U.S. v. O'Brien, 618 F.2d 1234, 1240-1241 (7th Cir.1980), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980), citing U.S. v. Robertson, 582 F.2d 1356, 1366 (5th...

To continue reading