Prosecutor chastised but court upholds conviction

Monday, Dec. 17, 2001 | 8:18 a.m.

CARSON CITY -- The Nevada Supreme Court plans to impose sanctions against a Clark County prosecutor for improper remarks made during a murder trial, but it still upheld the conviction of Charles L. Randolph, sentenced to death for killing a bartender.

Randolph was convicted of the May 1998 execution-style killing of Shelly Lokken and robbery of $4,629 from Doc Holliday's bar in Las Vegas. Lokken was handcuffed and the second of two shots in the back of her head was delivered while she was kneeling.

Randolph was captured on a videotape that showed he was the only person in the bar and that he pulled a gun and led Lokken out of the bar.

The inmate admitted he had been on a cocaine binge before the shooting and had run out of money. He admitted to the robbery but denied the shooting. He said a companion, Tyrone Garner, had done the killing. But Garner was not seen on the tape.

During the closing argument to the jury in the guilt phase of the trial, Deputy District Attorney William Kephart mischaracterized the reasonable doubt standard, the court said.

"If you have a gut feeling he's guilty, he's guilty," he said.

District Judge Michael Douglas ordered the remark stricken but did not grant a defense motion to admonish the jury. The Supreme Court said the judge's instruction to the jury correctly provided the definition of reasonable doubt.

The court said that Kephart's improper argument was not prejudicial and was not enough to order a mistrial.

But the court said it has "repeatedly cautioned" prosecutors that they "venture into calamitous waters" when they attempt to supplement or clarify the reasonable doubt standard.

In this case the court said Kephart's misstatement "was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty."

The court issued an order to Kephart to show cause why it should not fine him or refer him to the state Bar of Nevada for possible discipline.

During oral arguments earlier this year on the case, Justice Bob Rose and others singled out Kephart for criticism. Justice Cliff Young suggested a $10,000 fine might get the attention of errant prosecutors.

"Either he (Kephart) doesn't want to learn or he's a slow learner," Rose said. "One prosecutor doesn't seem to get the word."