*1 The sentencing. State is when prior prejudiced defendants are any allowed to withdraw time freely guilty pleas they have second Plea thoughts arrangement. bargaining about the in our judicial system virtually necessity. It is largely justified terms of the wheels of the keeping system turning. If defendants are entered, freely allowed to their minds after a change plea is time and rationales of the resource-saving plea bargaining system are defeated. in this case majority opinion dangerous sets It precedent. a multiplicity appeals the door to based
opens upon claims defendants that were unaware of what the court may consider I passing sentence. must therefore respectfully dissent. SANBORN, Appellant, HARRY ANDREW v. THE Respondent. NEVADA, OF STATE
No. 17553 SANBORN, Appellant, HARRY A. v. THE STATE Respondent. NEVADA, OF
No. 19755
June
OPINION Court, Steffen, J.: theBy Harry A. was convicted of first
Appellant, two deadly with use of sentenced to degree weapon murder possibility life without the There- parole. terms of consecutive relief and a post-conviction filed a petition after Sanborn Both *3 for a new trial. were denied. these consolidated motion and challenges his conviction the denial of his appeals, the relief. review of record reveals Our post-trial petitions a trial. new We therefore reverse requiring error prejudicial remand.
Facts of the Las May Vegas the officers evening On were Police summoned to Sanborn’s Metropolitan Department arrival, Upon a their following reports shooting. residence the room with her hus- living Sanborn’s wife in officers found band, from The two bullet wounds. bleeding profusely who was response, repeatedly what he happened. officers asked Sanborn John a Papili, partner. he had shot former business stated that in agitated to restrain the order Officers were forced of his Sanborn resisted the offi- injuries. prevent aggravation cers, how he wanted to die. In answer to rambling about officers, the stated that he had from questions additional himself, a that he later described as sarcastic a declaration shot in the next John was discovered Papili, remark. The room, in a amount of blood. His lifeless face down small lying nine bullet wounds. body revealed the handgun a small found on up the officers picked
One of gun blood on the noticing the residence. Despite inside carpet retrieved, it the officer the from which was carpet the area of pocket taking any his rear without weapon right the placed evidentiary its extrinsic preserve prop- measures precautionary Later, car. gun patrol the inside the trunk he placed erties.
Although it was determined that the subsequently handgun was used to shoot an identification weapon specialist was latent fingerprints weapon unable to recover from and did not any handgun, recall blood on it. Another determined seeing to be used in weapon shooting Papili, also obtained at the scene.
The state’s at trial was that Sanborn intentionally killed and then turned a on himself. Papili Although attorney trial, at put forward no defense Sanborn claims that Papili was the aggressor initial and that killed Papili self-defense. trial, witnesses, At the state called numerous including the scene, reported officers and medical who to the personnel ballistics and identifications One specialists. ballistics specialist testified, objection, over that in his opinion press contact firing (i.e., inflicted by pressing gun directly one against skin or clothing) would not leave a residue but would pass through the t-shirt, clothing into flesh. He further testified that Sanborn’s condition, However, which was in had no poor residue on it. order, pursuant to court had specialist performed only one test the test did not involve a weapon; press contact The firing. cylinder conducted a specialist gap test to determine whether escaping cylinder residue from revolver’s gap would have left t-shirt, detectable amounts of residue on Sanborn’s but did not perform a muzzle blast test to determine whether a press contact would have gunshot projected detectable amounts of residue onto addition, the shirt. In' Sanborn’s surgeon testified that he did not noticing remember residue in gunshot Sanborn’s chest cavity. also heard from a Sanborn friend and former employee who testified that Sanborn had confessed to her that he had killed and shot himself.
At the conclusion of the state’s Sanborn moved to dismiss himself, counsel and that he represent claiming just had learned attorney that his planned put forward no defense. The court Thereafter, untimely denied his motion as and inappropriate. *4 statement, defense rested without an making opening calling any witnesses, or evidence. presenting any Sanborn then insisted on testifying his own defense. He testified that he and had both a Papili personal and business years for some that marred relationship by was a out a falling few years to the incident. prior shooting Sanborn stated that of the day killing, Papili had come to his house and asked him to help computer against with a scam Papili’s employer. an During ensuing argument, assertedly made a Papili derogatory comment about Sanborn’s Sanborn daughter. responded by physically ejecting from the house. Sanborn Papili also testified that Papili had previously get gun threatened to a and blow him away if he Fearful, out got gun a him. his ever laid hand on returned away. According his sent wife gun. point, a From that Sanborn’s carrying walked into the house that “everything just of the incident was only recollection consciousness, seeing he remembered regaining Upon flashed.” around. people milling testimony, of no defense was exception
With the The returned verdict of first guilty a of jury. to the presented deadly of a Sanborn was weapon. murder with use degree of for murder parole without the possibility sentenced to life the deadly weapon identical term for enhance- and a consecutive both direct and a appeal petition post- ment. filed a for alia, of based inter ineffective assistance upon, conviction relief new trial a motion for a based upon counsel. He also filed trial consisting primarily of the results of newly discovered his injuries. used to inflict firing post-trial test press determine whether a contact testing performed was (a on a t-shirt “muzzle residue cotton deposit would gunshot test). Contrary opinion the trial of ballistics blast” state’s the test produced by firing reportedly the results demon- expert, a deposits that contact substantial amount gunshot strated a press clothing. residue of court evidentiary hearing, district denied both
Following relief and the motion for a new post-conviction for petition petition for rehearing post-conviction A for trial. motion from the appealed was Sanborn then denial relief denied. appeals motion. His have consolidated
petition and this court. consideration
Discussion contends that the district court committed revers- Sanborn first his for post-conviction error relief based by denying petition ible trial counsel. Sanborn primarily assistance of ineffective upon adequate failure conduct pre-trial his counsel’s emphasizes concerning trial evidence the victim’s investigation of self-defense as and Sanborn’s evidenced background wounds were not self-inflicted. San- demonstrating facts failures, of these and other trial that as result born asserts agree. counsel ineffective. We that is claim of ineffective assistance counsel To state a conviction, must judgment invalidate
sufficient to objec- fell below an performance that trial counsel’s demonstrate reasonableness, and that counsel’s deficiencies tive standard of verdict unreliable. jury’s rendered were so severe *5 (1984); U.S. Washington, See Strickland v. Warden v. denied, (1984), cert. Lyons, U.S. 1004 whole, on counsel’s as a and with due
Focusing performance of effective regard strong presumption for the assistance accorded Strickland, we hold that counsel this court and by objective indeed fell below an standard of representation reason- Trial counsel did not adequately perform pretrial ableness. inves- supportive failed to evidence of a claim of tigation, pursue self-defense, failed to explore allegations victim’s Thus, he towards violence. “was not propensity functioning as the defendant guaranteed by the ‘counsel’ Sixth Amend- Strickland, Moreover, at 687. we ment.” 466 U.S. are compelled that failures were so severe to conclude counsel’s that verdict unreliable. jury’s rendered Had been properly with the evidence available to presented apparently support San- self-defense, the outcome may very born’s claim of well have Thus, been different. counsel’s efforts both before and during sufficiently trial were deficient “to the defendant deprive of a fair below, trial.” as discussed in Accordingly, greater Id. detail Sanborn has stated a claim of ineffective assistance of counsel that warrants reversal of his conviction.
First, Sanborn contends that because of counsel’s inadequate and failure to trial evidence pretrial investigation present regard- tendencies, violent Sanborn’s own ing Papili’s testimony was the absence of corroborative evidence strongly by devalued that by diligent would have been and effective presented counsel. In that, trial, Sanborn insists before support position, had attorney potential his with a list of witnesses who were provided behavior, prepared testify concerning Papili’s aggressive his carrying gun, willingness custom of his to threaten its use. courtroom, were in Sanborn further avers these witnesses that he led to testify; believe that his prepared by of self-defense would be his counsel. pursued We the state’s claim that counsel’s failure reject present trial There strategy. defense was sound was sufficient evidence to claim, pursuing a self-defense claim.1 In such a evidence of the victim’s character would have been general admissible. 1Specifically, Papili we note that Sanborn testified that entered his home it, Additionally, pursued with a in hand. had counsel there was evidence available to corroborate Sanborn’s claim that wounds were not self- inflicted, by Further, subsequent may as shown test results. there have tending support proposition aggres was the sor. Moreover, violence evidence of acts of 48.045(l)(b). NRS homicide, would have prior known *6 mind on the of state of issue to Sanborn’s admissible show P.2d 576 v. Burgeon self-defense. Second, that evidence and testimony Sanborn claims were demonstrably have refuted the which would state’s available He also that his were self-inflicted. contends contention wounds remaining the inference presented, if had been proofs that such wounds were inflicted Papili, have been that his thus would in Specifically, his claim that he acted self-defense. supporting muzzle blast test which relies on the showed post-trial self-inflicted, hard contact wound leaves massive press that a clothing. argues He counsel’s failure persuasively residue jury hearing to this evidence resulted develop only press firing that a contact no state’s erroneous conclusion leaves Particularly residue. because evidence undeveloped belatedly from an have produced firing directly actual test would contra- evidence, dicted the state’s Sanborn was opinion untested denied counsel on this critical aspect the effective assistance of clearly was his coun- prejudiced defense. Sanborn’s defense which present failure to and evidence would have develop sel’s testimony and discredited the corroborated state’s counsel’s of due diligence, witness. Because of lack San- expert mate- deprived opportunity present testimony born was of defense, we are unable to his and therefore to place rial reliability in the of verdict. See confidence Strickland v. (1984).2 Washington, U.S. Warner Nev. analogous case is
The instant we held that failure use the (1986), in which investigator, investigate the back- defender’s full-time public support ground witnesses, character, employers, to contact appellant’s pretrial investigation resulting inadequate constituted co-workers of counsel. In Sanborn’s assistance in the ineffective to some investigator degree, used defense counsel although in the witnesses’ affida- contained that the information admitted investigator had led him to believe. more useful than vits was contacted, never even witnesses were potential other Many have testified that would apparently of them though several Moreover, gun. and carried a defense threatening violent upon consisting cylinder 2The state’s conclusion was based evidence that, of a opinion although gap specialist’s and a ballistics he did perform test not test, press firing not such a contact would leave residue. evidentiary hearing testimony by admitted at the counsel would have been important. corroborative witnesses Further- inconclusive, more, additional even if would have testing, sup- the state’s claim that Sanborn’s doubting a basis wounds plied were self-inflicted. next contends that the district court erred in denying upon newly a new trial based discovered evidence.
his motion for
the new evidence
of self-
supports
He asserts that
demonstrates, in rebuttal to the state’s contrary
defense because it
claim,
have
that he could not
inflicted his
wounds. He
to discover
diligent
maintains that he made
efforts
this evidence
stymied by
were
his attorney.3
for trial but that his efforts
A district court may grant a new trial
ground
of newly
176.515(1).
discovered evidence. NRS
or
grant
denial of a
new trial on this
ground within the trial court’s discretion and
*7
will not be reversed on appeal absent its
State,
abuse. McCabe v.
604,
(1982).
98 Nev.
P.2d
655
536
To establish a basis for a new
trial on
ground,
this
the evidence
discovered;
must be: newly
defense;
material to the
such that even with the exercise of
reasonable
it
diligence
could not have been discovered and pro-
trial; non-cumulative;
duced for
such as to render a different
retrial;
result probable upon
not
an
only
contradict,
to
attempt
witness,
impeach, or discredit a former
unless the witness is so
important that a different result would be reasonably probable;4
and the best evidence the case
State,
admits. McLemore v.
94
237,
(1978).
Nev.
Although we have determined the need to clarify our case law concerning the criteria for determining a criminal defendant’s trial, right to new we decline to determine whether the criteria call, court that the Sanborn informed the defense was not 3At calendar necessary performed. ready part firearm tests had not been In because addition, evidentiary hearing, during pretrial Sanborn addressed the court performed. Finally, during proper need to have the tests and reiterated the jury, pointed presence of the out that the proof offer of outside the ultimately produced not include the test that original court’s order did (the test). evidence muzzle blast newly exculpatory discovered 237, 239-40, State, (1978), Nev. 577 P.2d 4In McLemore v. rulings by this court which disallowed as a basis for perpetuated we earlier newly impeachment evidence discovered unless the new trial consideration important that a “different impeached be was so result must witness to added.) satisfy impossibility view of the near of ever (Emphasis follow.” burden, recognition of the fact that new trial ing and in further the “must” guilt, all-important issue of innocence or we have criteria addresses render a impeachment standard to one that would different result modified the “reasonably probable.” already concluded that Having by Sanborn. been satisfied has the ineffective because of must be reversed conviction counsel, unnecessary for us to determine it is of trial assistance that issue. the district court committed revers- contends that next counsel and represent motion to dismiss denying his
ible error neither nor untimely motion was that the He asserts himself. he (1) he made the motion as soon as because: inappropriate no on his intended to defense attorney present discovered additional behalf; requested occasions (2) previous he had on time; in the courtroom (3) he had witnesses counsel and more (4) the denial of his motion testify; to who were prepared and due process. to rights self-representation him of his deprived self-representation sharply to right a defendant’s Although the legitimate if “the begun,5 prejudice trial has curtailed once potential disruption overbalances the defendant interests of must be right then such already progress,” proceedings 557, 560, 554 P.2d respected. Schnepp attorney planned put because his (1976). In this whatsoever, denial of Sanborn’s legiti- no defense forward that it prejudicial was so in self-representation mate interest disruption pro- pertaining considerations outweighed Thus, that Sanborn was denied his sixth we conclude ceedings. California, 422 Faretta v. right self-representation. amendment that denial of the motion (1975). We further conclude U.S. 806 to due because right process deprived concerning testimonial right denied the Coombs v. Nev. of the victim. See propensities violent that, hold under the We therefore case, the district court committed reversible of this circumstances counsel and repre- motion to dismiss denying Sanborn’s *8 error sent himself. because the is mandated that reversal contends next firearm which was the preserve collect and failed properly state mishandling that the state’s He asserts wounds. inflict his
used to and analysis fingerprints of him because gun prejudiced of the he acted in self- was crucial to the gun from blood defense (1988), we held P.2d 104 Nev. v. In Sparks evidence if the state loses when be reversed may that a conviction case, the although In this the loss. by prejudiced is the defendant
5Lyons broken, the not custody gun chain of of itself was the improper in a loss of handling gun of the resulted evidence similar to the resulted in a Sparks. Mishandling of loss of evidence of the are fingerprints; analogous. blood and cases therefore As in witnesses, accused, there were no other than the Sparks, to a self-defense, have been committed in homicide claimed to and claim exclusively Sanborn’s self-defense rested almost on his true, at trial. If Sanborn’s testimony testimony is evidence of critical, the weapon blood or could have been fingerprints evidence of self-defense. The state’s corroborative case was but- Therefore, by tressed the absence of this evidence. the state “cannot be allowed to benefit in such a manner from its failure to evidence.” Id. at P.2d at 182. We preserve hold that the by police Sanborn was indeed officer’s mishandl- prejudiced However, of the unlike the instant in ing gun. Sparks there corroborative evidence of the was substantial defendant having by to violent abuse the victim subjected over a period Indeed, many the officer who years. police interrogated Cody fingernail saw corroborative evidence of file Sparks burns, stabbings, result, Sparks and bruises. As in we were compelled to mishandling potentially exculpatory view the loss of by sufficiently the state as to warrant both a prejudicial reversal and the of all We need not do charges. dismissal so here. anew,
In the event the state elects to prosecute the trial court shall instruct the that because the state jury failed to test the firearm that to inflict wounds on Sanborn was used for blood and irrebuttably fingerprints, weapon presumed to have been course, held and fired Of it by Papili. would be left to determine, evidence, in all of the jury weighing whether Sanborn was shot the victim in an act of self-defense. We are ruling this will acutely hardship impose aware state any subsequent prosecution but conclude that the alternative to this would be to order the only disposition charges dismissed. We are unable to conclude from simply this record any other this court would ruling provide with of a fair trial. prospect that the prosecutor’s
Sanborn next contends conduct during note, closing argument improper prejudicial. We how- ever, that this issue was not preserved appellate review of the failure of defense counsel to We object. because neverthe- remarks prosecutor’s concerning less observe that his per- beliefs, shoes, placing sonal victim’s evidentiary commenting without foundation on the absence of of both Sanborn and persons defensive wounds on the victim
409 will conduct which we trust not be improper did constitute in the event of a retrial. repeated remaining contentions con-
We have considered merit. for the reasons Accordingly, previ- lack clude discussed, of conviction judgment we reverse Sanborn’s ously a new trial should the state elect to prosecute and remand for by this opinion. under the constraints established Young, JJ., J., concur. Rose Mowbray, C. J.,
Springer, dissenting concurring part, part: majority’s I with the decision to reverse Sanborn’s agree While conviction, that the case should be remanded for a agree I do not view, is controlled by Sparks the instant case my new trial. In 316, 319, 180, Sparks, Nev. 759 P.2d (a had mishandled evidence gun) we held that where State defense, not be the defendant could retried. was crucial to facts, set of we hold that the State on an almost identical Today, in Haberstroh v. may retry Sanborn. As I stated 1343, J., (1989) (Springer, P.2d concur- “[Wjhat yesterday, we we disapprove approve ring), be followed Sparks I believe that should and that today.” Because all, not at explicitly, we overrule cases or I dissent. should DOLEMAN, Appellant, v. THE MARVIN LEWIS STATE Respondent. NEVADA, OF
No. 21479 812 P.2d June