McKenna v. State

• Decision Date: 25 November 1998
• Docket Number: No. 29432,29432
• Citation: 968 P.2d 739,114 Nev. 1044
• Parties: Patrick Charles McKENNA, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 739

968 P.2d 739

114 Nev. 1044

Patrick Charles McKENNA, Appellant, v. The STATE of Nevada, Respondent.

No. 29432.

Supreme Court of Nevada.

Nov. 25, 1998.

David M. Schieck, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

OPINION

PER CURIAM.

This is an appeal from a sentence of death imposed after the third penalty hearing held in this case. After the trial and first penalty hearing, this court reversed appellant's conviction and remanded for a new trial. After the second trial and penalty hearing, appellant filed a petition for a writ of habeas corpus in federal district court seeking a new penalty hearing, which was granted. On appeal after the third penalty hearing conducted in this case, we conclude that all of appellant's contentions lack merit and affirm.

FACTS

In March 1980, appellant Patrick Charles McKenna was convicted of one count of first degree murder for the killing of Jack Nobles on January 6, 1979, while both were incarcerated in the Clark County Detention Center. After lockdown that day, Nobles and two other inmates were confined in a cell with appellant. Appellant and Nobles argued, after which appellant choked Nobles to death. One inmate testified that appellant and Nobles argued about a chess game and that appellant choked Nobles when Nobles was in bed. Another inmate testified that appellant and Nobles argued about sex and that appellant shoved Nobles against the bunk and choked him so that Nobles' knees buckled and he dropped to the ground. ¹ After a penalty hearing, the jury returned a verdict of death. On appeal, this court reversed appellant's conviction and remanded for a new trial because the district court improperly allowed appellant's psychiatrist to testify to admissions appellant made during a psychiatric examination. McKenna v. State, 98 Nev. 38, 639 P.2d 557 (1982).

In September 1982, after a second trial and penalty hearing, appellant was again convicted of one count of first degree murder and sentenced to death. On appeal, this court affirmed the judgment and sentence. McKenna v. State, 101 Nev. 338, 705 P.2d 614 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986). On April 18, 1986, appellant filed in the district court a petition for post-conviction relief, which the court denied. On appeal, this court vacated the district court's order and remanded for reconsideration of the petition, among other things. McKenna v. State, Docket No. 18074, 103 Nev. 812, 809 P.2d 41 (Order of Remand, October 29, 1987). Appellant subsequently filed a supplemental and amended petition for post-conviction relief. After reconsidering appellant's petition, the district court again denied appellant relief. This court dismissed the appeal from the order denying the supplemental and amended petition. McKenna v. State, Docket No. 19026, 106 Nev. 1032, 835 P.2d 52 (Order Dismissing Appeal, January 18, 1990). This court subsequently denied rehearing. McKenna v. State, Docket No. 19026 (Order Denying Rehearing, March 7, 1990). The United States Supreme Court again denied a petition for a writ of certiorari. See McKenna v. Nevada, 498 U.S. 925, 111 S.Ct. 306, 112 L.Ed.2d 260 (1990).

Appellant then filed in the United States District Court for the District of Nevada a petition for a writ of habeas corpus seeking a new penalty hearing. The federal district court upheld appellant's conviction but vacated his sentence. On appeal, the United States Court of Appeals for the Ninth Circuit remanded for the federal district court to consider all of appellant's claims. The federal district court clarified its ruling and again ordered that appellant's death sentence be vacated. The Ninth Circuit affirmed the denial of appellant's petition as to his conviction, and affirmed the court's decision to grant the petition as to his sentence of death unless he was resentenced within a reasonable period of time. The Ninth Circuit remanded for entry of a modified order stating that a writ of habeas corpus would issue with respect to appellant's sentence unless he was resentenced within a reasonable period of time. McKenna v. McDaniel, 65 F.3d 1483 (9th Cir.1995), cert. denied, 517 U.S. 1150, 116 S.Ct. 1451, 134 L.Ed.2d 570 (1996). On remand, the federal district court ordered the state district court to conduct a new penalty hearing. ²

The third penalty hearing, which is the subject of this appeal, was conducted by the court below on September 9-19, 1996. The jury found six aggravating circumstances--that appellant was previously convicted of: (1) an infamous crime against nature; (2) rape; (3) unlawful escape; (4) robbery, two counts of second degree kidnapping with use of a deadly weapon, and three counts of sexual assault; (5) attempted escape with use of a deadly weapon, ex-felon in possession of a firearm, and two counts of robbery with use of a deadly weapon; and (6) attempted escape with aggravating factors. The jury also found four mitigating circumstances--that appellant: (1) personally suffered physical parental abuse; (2) personally suffered emotional parental abuse; (3) suffered, as a child and young adult, domestic violence; and (4) lost a child. The jury concluded that the mitigating circumstances did not outweigh the aggravating circumstances and returned a verdict of death. On September 23, 1996, the district court sentenced appellant to death. This appeal followed.

DISCUSSION

SWAT officers in the courtroom

Appellant filed in district court a motion to appear at all proceedings without shackles, "shock belt," blinders, gloves, and SWAT and transportation officers. At the hearing on appellant's motion, the district court granted the motion in part and explained that there would be an officer at each door, one midway between the door and the right side of the courtroom, and one in a chair between the jury and the witness stand. Defense counsel then requested that not all of the security personnel be uniformed and that the SWAT officers wear civilian clothing. The Director of the Clark County Detention Center (CCDC) testified that the number of security personnel was necessary, that one more officer would be added when prisoner witnesses testified, and that he was unwilling to interfere with the way SWAT does its job. The court ordered that appellant's arms would be free of restraints, his legs would remain restrained and a curtain placed around counsel tables, he would wear a stun belt under his clothing, and the SWAT team would be limited to four officers. Prior to the penalty hearing, the tables in the courtroom were replaced with tables that were enclosed on three sides.

At the hearing on appellant's motion there apparently were twelve officers in the courtroom. Defense counsel renewed the motion pertaining to security issues, arguing that twelve officers was too many. The district judge said that he reduced the number of SWAT officers from seven to four, which he was told was necessary for security, and that there would be two bailiffs and "a couple" of corrections officers. Defense counsel entered a continuing objection to the number of security officers in the courtroom.

At the close of the penalty hearing and outside the presence of the jury, defense counsel made a final record on the number of SWAT officers. Defense counsel stated that for the duration of he hearing there had been half a dozen SWAT officers in uniform armed with handguns, an unarmed officer sitting between the prosecution and defense tables, and guns enclosed in cases, all of which the jury saw. In response, the prosecutor made a record that one of the prisoner witnesses told SWAT officers that appellant had directed him to do certain things while testifying. The prosecutor said that he decided not to put this evidence on as rebuttal evidence of another attempt to escape, but that the officers considered the information in securing the courtroom.

Appellant contends that the placement of armed security personnel dressed in SWAT uniforms "all around [him]" in the courtroom and the use of uniformed law enforcement personnel in general prejudiced him such that he did not receive a fair penalty hearing. Appellant analogizes to cases which hold that a defendant may not be compelled to stand trial dressed in identifiable prison clothes, see, e.g., Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and which hold that it is inherently prejudicial to shackle a defendant during the penalty hearing, see Elledge v. Dugger, 823 F.2d 1439 (11th Cir.1987). ³ In his reply brief, appellant specifies that eleven corrections officers were present at the penalty hearing.

Although this court has addressed whether security personnel stationed around the courthouse violated a defendant's due process rights, see Elvik v. State, 114 Nev. 883, 965 P.2d 281 (1998), the issue of security personnel inside the courtroom is one of first impression. The United States Supreme Court has held that a federal reviewing court's task in this type of case

is not to determine whether it might have been feasible for the State to have employed less conspicuous security measures in the courtroom.... All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.

Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986).

In Holbrook, twelve officers were stationed inside the courtroom during trial, including four uniformed state troopers. Id. at 570, 106 S.Ct. 1340. The six codefendants complained that the state troopers' presence suggested to the...