Holden (Jim) v. State ( 2014 )


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  •                 "that counsel should be 'strongly presumed to have rendered adequate
    assistance and made all significant decisions in the exercise of reasonable
    professional judgment." Cullen v. Pinholster, 563 U.S. „ 
    131 S. Ct. 1388
    , 1403 (2011) (quoting Strickland, 466 U.S. at 690). Further, the
    presumption is that the actions of counsel reflect trial tactics rather than
    sheer neglect. Harrington v. Richter, 562 U.S. „ 
    131 S. Ct. 770
    , 790
    (2011). We give deference to the district court's factual findings if
    supported by substantial evidence and not clearly erroneous but review
    the court's application of the law to those facts de novo.   Lader v. Warden,
    
    121 Nev. 682
    , 686, 
    120 P.3d 1164
    , 1166 (2005).
    First, appellant claims that trial counsel was ineffective for
    advising appellant to testify, which allowed his prior convictions and his
    journal to be admitted at trial Appellant fails to demonstrate that trial
    counsel was deficient or that he was prejudiced. Appellant was informed
    at trial that it was his decision to testify. At the evidentiary hearing, trial
    counsel testified that he and appellant had numerous discussions about
    whether appellant should testify and that trial counsel did not push him
    either way. Further, appellant's testimony was the only way to inform the
    jury that appellant was afraid for the lives of his wife and child, which
    could have attacked the integrity of his confession. Moreover, appellant
    fails to demonstrate that there was a reasonable probability of a different
    outcome at trial had he not testified We note that there was
    overwhelming evidence of appellant's guilt without the introduction of his
    prior convictions and the journal. Therefore, the district court did not err
    in denying this claim.
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    Second, appellant claims that trial counsel was ineffective for
    mentioning his prior conviction for first-degree murder during his opening
    statement. Appellant fails to demonstrate that trial counsel was deficient
    or that he was prejudiced. Appellant was canvassed by the district court
    prior to counsel giving his opening statement as to whether appellant
    approved of his trial counsel's decision to inform the jury that he had
    previously been convicted of murder. Appellant told the district court that
    he approved. Further, appellant fails to demonstrate that there was a
    reasonable probability of a different outcome at trial had counsel not
    informed the jury of appellant's prior convictions given the overwhelming
    evidence of appellant's guilt. Therefore, the district court did not err in
    denying this claim.
    Third, appellant claims that trial counsel was ineffective for
    failing to request a limiting instruction prior to the introduction of his
    journal, which referenced other bad acts. Appellant fails to demonstrate
    that he was prejudiced. While a limiting instruction was not given at the
    time the evidence was introduced, a limiting instruction was given to the
    jury at the close of evidence. Further, appellant fails to demonstrate that
    there was a reasonable probability of a different outcome at trial had
    counsel requested a limiting instruction prior to the admission of the other
    bad acts given the overwhelming evidence of appellant's guilt. Therefore,
    the district court did not err in denying this claim.
    Fourth, appellant claims that trial counsel was ineffective for
    conceding appellant's guilt during voir dire and closing arguments.
    Appellant fails to demonstrate that trial counsel was deficient or that he
    was prejudiced because the record reveals that trial counsel did not
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    concede appellant's guilt during voir dire or closing arguments. Therefore,
    the district court did not err in denying this claim.
    Fifth, appellant claims that trial counsel should have
    requested an instruction on "use" liability for the deadly weapon
    enhancement where it is a co-conspirator who used the weapon and not
    the defendant. Appellant fails to demonstrate that he was prejudiced.
    Appellant fails to demonstrate a reasonable probability of a different
    outcome at trial had trial counsel requested an instruction on "use"
    liability because of the overwhelming evidence at trial that appellant was
    the one who shot the victim. Therefore, the district court did not err in
    denying this claim.
    Sixth, appellant claims that trial counsel should have objected
    to instruction 21, which related to co-conspirator liability, because it did
    not clearly set forth specific intent. Specifically, appellant claims that the
    jurors may have concluded that if they thought appellant intended to
    commit the crime of extortionate collection of a debt, they could find him
    guilty of murder without finding that he had the specific intent to commit
    murder. Appellant fails to demonstrate that trial counsel was deficient or
    that he was prejudiced. Jury instruction 21 correctly sets forth the law for
    co-conspirator liability, Bolden v. State, 
    121 Nev. 908
    , 922, 
    124 P.3d 191
    ,
    200-01 (2005) overruled on other grounds by Cortinas v. State, 
    124 Nev. 1013
    , 1021, 
    195 P.3d 315
    , 320 (2008), and counsel is not deficient for
    failing to make futile objections. Donovan v. State, 
    94 Nev. 671
    , 675, 
    584 P.2d 708
    , 711 (1978). Further, appellant fails to demonstrate a reasonable
    probability of a different outcome at trial had trial counsel objected.
    Appellant was found guilty of conspiracy to commit murder which means
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    that the jury necessarily found that he intended to commit murder. 1
    Therefore, the district court did not err in denying this claim.
    Seventh, appellant claims that trial counsel was ineffective for
    failing to object to the State's argument in closing regarding second-degree
    felony murder. Further, he claimed that trial counsel should have
    objected to the State's argument that "if Smokey did it and there's
    evidence that [appellant] conspired with Smokey, he's guilty." 2 First,
    although it appears that the State made an argument regarding second-
    degree felony murder, appellant fails to demonstrateS a reasonable
    probability of a different outcome at trial had counsel objected because the
    jury found appellant guilty of first-degree murder. Second, the statement
    relating to Smokey was a correct statement of the law regarding
    conspiracy because appellant is liable for the murder if appellant
    conspired with Smokey to commit the murder even if Smokey carried out
    the murder. Bolden, 121 Nev. at 922, 
    124 P.3d at 200-01
    . Therefore, the
    district court did not err in denying this claim.
    Eighth, appellant claims that trial counsel was ineffective for
    failing to object to the State's argument during closing that appellant was
    no longer entitled to the presumption of innocence. Appellant fails to
    demonstrate that trial counsel was deficient or that he was prejudiced.
    This claim is belied by the record. Trial counsel did object and the district
    1 We  note that appellant was not charged with conspiracy to
    extortionately collect a debt.
    2 Smokey    is Jerry Salas, appellant's co-conspirator. Hereinafter he
    will be referred to as Smokey.
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    court asked that the State rephrase. Further, appellant fails to
    demonstrate a reasonable probability of a different outcome at trial had
    trial counsel made further argument regarding the objection given the
    overwhelming evidence of appellant's guilt. Therefore, the district court
    did not err in denying this claim.
    Ninth, appellant claims that trial counsel was ineffective for
    failing to object to the State's improper argument during closing.
    Specifically, appellant claims that the State improperly invoked God when
    it used the phrase "God only knows." Further, appellant claims that the
    State told the jury that being blindfolded "is the only way you would be
    able to follow the story that the defendant told you," which mocked his
    defense. Appellant failed to demonstrate that trial counsel was deficient
    or that he was prejudiced. As to the "God only knows" comments,
    appellant fails to demonstrate that this was improper and trial counsel
    should have objected because it was used as a turn of phrase and was not
    invoking God.    See Epps v. State, 
    901 F.2d 1481
    , 1483 (8th Cir. 1990)
    (explaining that prosecutor's comments that were not objectionable could
    not be a basis for an ineffective-assistance claim based on counsel's failure
    to object). Further, appellant fails to demonstrate that there was a
    reasonable probability of a different outcome at trial had trial counsel
    objected to either of the statements. Therefore, the district court did not
    err in denying this claim.
    Tenth, appellant claims that trial counsel was ineffective for
    failing to investigate and fully raise a Miranda issue. Miranda v. Arizona,
    
    384 U.S. 436
     (1966). Specifically, appellant claims that when he was first
    approached by Las Vegas Metropolitan Police Department officers he
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    refused to speak to them and requested an attorney. Appellant fails to
    demonstrate that trial counsel was deficient or that he was prejudiced.
    Trial counsel did argue a motion to suppress the confession based on a
    Miranda violation and appellant fails to demonstrate that further
    investigation or argument would have changed the outcome of the hearing
    on the motion. Appellant's invocation after the Las Vegas Metro Police
    Department officers spoke to him was scrupulously honored; later he was
    again fully informed of his Miranda rights, and he told the police he was
    willing to talk to them. See Dewey v. State, 
    123 Nev. 483
    , 490-91, 
    169 P.3d 1149
    , 1153-54 (2007). Further, the district court determined that
    appellant was not credible when he claimed that he told the police officers
    that he wanted an attorney. Therefore, the district court did not err in
    denying this claim.
    Eleventh, appellant claims that trial counsel was ineffective
    for failing to present expert and lay testimony regarding the reliability of
    appellant's statements to the police. Appellant fails to demonstrate that
    trial counsel was deficient or that he was prejudiced. Trial counsel
    attempted to present an expert on false confessions, but the district court
    did not allow it because the testimony that appellant may have falsely
    confessed to protect his family was not an area of scientific inquiry. This
    court affirmed that decision on appeal. Holden v. State, Docket No. 47698
    (Order of Affirmance, October 17, 2007). Appellant argues that had trial
    counsel actually had the expert speak with appellant and view the
    videotape of his confession, the expert would have been allowed to testify.
    Trial counsel testified at the evidentiary hearing that he did not have the
    expert review the confession videotape or interview appellant because he
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    was afraid her conclusion would be that appellant did not falsely confess
    and he wanted her to only testify in general about false confessions. This
    was a reasonable trial strategy and the district court did not err in
    denying this claim.
    Twelfth, appellant claims that trial counsel was ineffective for
    failing to present an expert witness regarding the effects of
    methamphetamine use and how that may have affected the voluntariness
    of appellant's confession. Appellant fails to demonstrate that counsel was
    deficient or that he was prejudiced. Appellant had an evidentiary hearing
    but failed to produce an expert regarding methamphetamine use and how
    that may have affected his confession. Therefore, because appellant failed
    to carry his burden to demonstrate ineffective assistance, the district court
    did not err in denying this claim.
    Thirteenth, appellant claims that trial counsel was ineffective
    for failing to present other available evidence that showed a reasonable
    basis for appellant's fear. Specifically, appellant claims that trial counsel
    could have presented evidence that appellant was married and had a
    child, that one of the State's witnesses was afraid of Smokey, and that
    there were inconsistencies between appellant's version and the witness'
    version of events. Appellant fails to demonstrate that trial counsel was
    deficient or that he was prejudiced. Appellant fails to explain how
    evidence that appellant was married and had a child could have been
    admitted absent appellant's testimony. Further, trial counsel did inquire
    of the witness as to whether she was afraid of Smokey and trial counsel
    highlighted some of the inconsistencies between appellant's version and
    the witness' version of events during cross-examination and closing
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    arguments. Moreover, appellant fails to demonstrate a reasonable
    probability of a different outcome at trial had trial counsel further pointed
    out that the witness was afraid of Smokey or if trial counsel pointed out
    more inconsistencies given the overwhelming evidence of appellant's guilt.
    Therefore, the district court did not err in denying this claim.
    Next, appellant claims that the district court erred in denying
    his claims of ineffective assistance of appellate counsel. To prove
    ineffective assistance of appellate counsel, a petitioner must demonstrate
    that counsel's performance was deficient in that it fell below an objective
    standard of reasonableness, and resulting prejudice such that the omitted
    issue would have a reasonable probability of success on appeal. Kirksey v.
    State, 
    112 Nev. 980
    , 998, 
    923 P.2d 1102
    , 1114 (1996). Both components of
    the inquiry must be shown.       Strickland, 
    466 U.S. 668
    , 697. Appellate
    counsel is not required to raise every non-frivolous issue on appeal.   Jones
    v. Barnes, 
    463 U.S. 745
    , 751 (1983). Rather, appellate counsel will be
    most effective when every conceivable issue is not raised on appeal      Ford
    v. State, 
    105 Nev. 850
    , 853, 
    784 P.2d 951
    , 953 (1989). We give deference to
    the district court's factual findings if supported by substantial evidence
    and not clearly erroneous but review the district court's application of the
    law to those facts de novo. Lader v. Warden, 
    121 Nev. 682
    , 686, 
    120 P.3d 1164
    , 1166 (2005).
    First, appellant claims that appellate counsel was ineffective
    for failing to argue that the district court erred by admitting the journal at
    trial because it was more prejudicial than probative. Appellant failed to
    demonstrate that this claim had a reasonable probability of success on
    appeal. The journal included admissions that appellant committed the
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    crime and contradicted statements that appellant made while on the
    stand. While it did inculpate appellant in the crimes, it was not unfairly
    prejudicial.     See NRS 48.035(1) (providing that relevant evidence is
    inadmissible if "its probative value is substantially outweighed by the
    danger of unfair prejudice" (emphasis added)); State v. Eighth Judicial
    Dist. Court, 127 Nev. „ 
    267 P.3d 777
    , 781 (2011) (explaining that
    "unfair" prejudice refers to a decision based on an improper basis, such as
    emotion or bias). Further, some of the more inflammatory passages were
    not admitted at trial. Therefore, the district court did not err in denying
    this claim.
    Second, appellant claims that appellate counsel was
    ineffective for failing to argue that the State's closing argument was
    improper. Appellant fails to demonstrate that this claim had a reasonable
    probability of success on appeal. As discussed previously, the State's
    arguments were not improper, and therefore, would not have been
    reversible error. Thus, the district court did not err in denying this claim.
    Third, appellant claims that appellate counsel was ineffective
    for failing to argue that Amy Hatzenpillar's testimony that Smokey stated
    "they took care of what they had to take care of," was inadmissible
    hearsay. Appellant fails to demonstrate that this claim had a reasonable
    probability of success on appeal. The statement was admitted, over the
    objection of trial counsel, on the grounds that it was an adoptive
    admission. Because appellant was in the room when the statement was
    made and it was a statement that it would be expected that appellant
    would dissent from, the statement was properly admitted at trial as an
    adoptive admission. Maginnis v. State, 
    93 Nev. 173
    , 175, 
    561 P.2d 922
    ,
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    923 (1977); NRS 51.035(3)(b). Therefore, the district court did not err in
    denying this claim.
    Fourth, appellant claims that appellate counsel was ineffective
    for failing to argue that appellant's confession should have been
    suppressed because of a Miranda violation. Appellant fails to demonstrate
    that this claim had a reasonable probability of success on appeal. As
    discussed previously, there was no Miranda violation and the district
    court concluded that appellant was not credible. Therefore, the district
    court did not err in denying this claim.
    Finally, appellant claims that the cumulative errors of trial
    and appellant counsel entitle him to relief. Appellant fails to demonstrate
    that any alleged errors by counsel, singly or cumulatively, would have had
    a reasonable probability of altering the outcome at trial or on appeal.
    Accordingly, we
    ORDER the judgment of the district court AFFIRMED.
    .A&A   Stet,        ,
    J.
    Hardesty
    J.
    Douglas
    J.
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    cc: Hon. Carolyn Ellsworth, District Judge
    Karen A. Connolly, Ltd.
    Attorney General/Carson City
    Clark County District Attorney
    Eighth District Court Clerk
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