Sonner v. State

• Decision Date: 20 December 1996
• Docket Number: No. 26485,26485
• Parties: Michael Hampton SONNER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 707

930 P.2d 707

112 Nev. 1328

Michael Hampton SONNER, Appellant, v. The STATE of Nevada, Respondent.

No. 26485.

Supreme Court of Nevada.

Dec. 20, 1996.

Steven G. McGuire, Public Defender, and James P. Logan, Appellate Deputy Public Defender, Carson City, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District Attorney, and David K. Neidert, Deputy District Attorney, Pershing County, for Respondent.

OPINION

PER CURIAM:

This is an appeal from a judgment of conviction of one count of first-degree murder with use of a deadly weapon pursuant to a jury verdict and from a sentence of death. ¹ Appellant Michael Hampton Sonner has raised numerous issues pertaining to both the guilt and penalty phases of his trial. We have carefully reviewed each issue and conclude that none has merit. Because Sonner was fairly tried, convicted and sentenced, we affirm.

FACTS

On the evening of November 30, 1993, a red sport utility vehicle stopped at the Trinity Truck Stop at the junction of Interstate 80 and Highway 95, twenty-three miles west of Lovelock. After pumping $22.00 worth of gas, the driver left without paying.

Trooper Carlos Borland was alerted to what had occurred at the truck stop and eventually halted the red Chevy Blazer near Lovelock. Prior to the stop, the Chevy Blazer and Borland's patrol car both passed Steven and Doyle Anderson. As the Andersons approached the patrol car and the Blazer, Steven Anderson saw Trooper Borland lying on the ground and the Blazer pulling away from the shoulder. The Andersons stopped to help the stricken officer. Another passing motorist, Jerold Burkhart, also saw the Blazer speed away. Burkhart stopped and used Borland's radio to summon help. Borland was transported by ambulance to the Pershing General Hospital emergency room where doctors vainly attempted to stabilize him before he succumbed to a gunshot wound to the head. The Andersons and Burkhart testified that Borland's pistol was still in its holster.

On December 1, 1993, a stolen red Chevy Blazer was found abandoned in Churchill County. Shoe prints were observed leading away from the vehicle in the direction of the Clan Alpine Mountains. A helicopter reconnaissance team eventually saw what appeared At trial, Sonner never disputed that he killed Trooper Borland. A jury convicted Sonner of first-degree murder with use of a deadly weapon and sentenced him to death. Sonner now appeals the judgment of conviction and imposition of the death penalty.

to be a campfire several miles from the Blazer. A S.W.A.T. team landed, and a standoff ensued during which Sonner appeared suicidal when he raised his weapon in the direction of the officers in an attempt to draw their fire. The [112 Nev. 1333] officers fired two shots, and although Sonner was not hit, he dropped his gun and surrendered.

DISCUSSION

Jury instruction on the authority of the board of pardons

Sonner contends that the district court erred in instructing the jury that under certain circumstances and conditions the State Board of Pardons Commissioners has the power to modify sentences. ² Sonner argues that, in his case, the instruction violated his constitutional rights to due process and a reliable sentence because it misled the jury into believing that parole was a future possibility even if it sentenced him to life without possibility of parole. We disagree.

The instruction given in this case is consistent with the dictates of NRS 175.161(7) ³ and, as previously held by this court, is constitutional under both the state and federal constitutions because it does not mislead the jury. See Petrocelli v. State, 101 Nev. 46, 54-56, 692 P.2d 503, 510-11 (1985). The instruction given in this case is identical to the one set forth by this court in Petrocelli. At the time Sonner was sentenced, the instruction was an accurate statement of the law. Moreover, as we observed in Petrocelli, the United States Supreme Court has held that such an instruction "does not run afoul of constraints against arbitrary and capricious sentencing patterns, and that the possibility of commutation is not too speculative of [sic] an element for the jury's consideration." Id. at 55, 692 P.2d at 510 (citing California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983)). Sonner was not prejudiced by the instruction.

Although the instruction given in this case accurately represented the law at the time of Sonner's trial, subsequent changes in the law require a modification in the Petrocelli instruction effective immediately. During the 1995 legislative session, Chapter 213 of NRS was amended to prohibit the board of pardons from commuting a sentence of death, or a sentence of life without possibility of parole, to a sentence that would allow parole. 1995 Nev.Stat., ch. 444, § 29 at 1360 (codified at NRS 213.085). ⁴ To comport with this change, the fourth paragraph Although under some limited circumstances and conditions the State Board of Pardons Commissioners has the power to modify certain sentences, the law does not allow the Board to change either a death sentence or a sentence of life without the possibility of parole to any lesser or different sentence. Therefore, you are instructed that you may not speculate as to whether the sentence you impose may be changed at a later date.

of the Petrocelli instruction ⁵ should now read:

Motion to recuse the judge or disqualify the prosecutor

Sonner contends that the district judge erred when he refused to disqualify the prosecuting attorney or recuse himself because of a prior attorney-client relationship between the judge and the prosecuting attorney, Brent Kolvet. Kolvet had represented the judge in an unrelated matter involving a disgruntled litigant.

Sonner had the burden of presenting sufficient grounds for the judge's recusal; and this court has always accorded substantial weight to a judge's determination that he can fairly and impartially preside over a case. See Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988). However, Sonner produced no evidence of any improper motive or instances of actual bias on the part of the district judge. Moreover, "an allegation of bias in favor or against an attorney for a litigant generally states an insufficient ground for disqualification because 'it is not indicative of extrajudicial bias against a "party" '." In re Petition to Recall Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988) (quoting Gilbert v. City of Little Rock, 722 F.2d 1390, 1398 (8th Cir.1983)).

Additionally, although Judge Wagner verbally terminated the attorney-client relationship with Kolvet on January 5, 1994--the same day Kolvet was deputized as a deputy district attorney for Pershing County--the record reflects that the attorney-client relationship effectively concluded at least 62 days before the verbal discharge on January 5th. On October 29, 1993, Kolvet sent Judge Wagner a letter indicating that the Ninth Circuit had denied rehearing to the litigant who had prompted Kolvet's representation of Judge Wagner. This appears to be the last formal involvement that Kolvet had with Judge Wagner's case. For these reasons, we conclude that the judge properly refused to recuse himself.

Sonner also contends that Kolvet was not authorized to prosecute him because Kolvet violated state law by representing a criminal defendant while prosecuting Sonner. The argument is without merit. This court previously issued an order in the instant case concluding that because Kolvet and his firm had withdrawn from all representation of criminal defendants, Sonner's motion to disqualify Kolvet was moot. Our order established the law of the case and impliedly acknowledged that Kolvet's conduct had not irreparably tainted the proceedings that occurred during the conflict. The resolution of this issue posed no prejudice to Sonner.

Motion for change of venue

The issue of whether to change trial venue is within the sound discretion of the trial court and will not be disturbed unless there is a clear abuse of discretion. Rogers v. State, 101 Nev. 457, 462, 705 P.2d 664, 668 (1985). Additionally, a defendant seeking a change of venue must present evidence showing the extent of inflammatory pretrial publicity and that such publicity corrupted the trial. Id.

Despite Sonner's detailed account of media reports and statistics reflecting bias within the venire, he has utterly failed to demonstrate actual bias on the part of the jury empaneled to decide his fate. Moreover, the jurors assured the district court that they would be fair and impartial in their deliberations. This court previously has upheld the denial of motions for change of In the extensively covered "sex slave" case, Gallego, also tried in a small community, we observed:

venue based upon such assurances even where pretrial publicity has been pervasive. See Ford v. State, 102 Nev. 126, 129, 717 P.2d 27, 30 (1986); Gallego v. State, 101 Nev. 782, 785, 711 P.2d 856, 859 (1985); Kaplan v. State, 96 Nev. 798, 801, 618 P.2d 354, 356 (1980).

Given the realities of our age, it is unlikely that a high-profile criminal defendant will be presented with a venire of uninformed individuals from which to select a jury. Indeed, it is conceded by many jurists that such a panel would least likely provide the considered, enlightened judgment that can best serve the demands of trial.

Gallego, 101 Nev. at 785, 711 P.2d at 859. We also noted that extensive pretrial media coverage of high-profile criminal cases will likely penetrate every "nook and cranny" of our state capable of hosting such trials. Therefore, the real test in each case is whether jurors who may have harbored preconceived notions of guilt or innocence prior to their call to jury service, can set aside such notions and fairly and impartially render a verdict based upon the trial evidence. See id. at 785-86, 711 P.2d at 859.

Because Sonner was unable to demonstrate actual...