Scholl (James) v. State ( 2015 )

 counsel was ineffective for failing to raise the issue on appeal or move for a
new trial. Scholl failed to demonstrate deficiency or prejudice. After
testimony at the evidentiary hearing and supplemental briefing on the
issue, the district court found it was "unclear" exactly when Nettrour
learned of the $20,000 reward, but strong evidence indicated he learned of
it after trial and Scholl failed to demonstrate otherwise.' Therefore, no
valid basis existed upon which trial or appellate counsel could have
successfully challenged his conviction. We conclude that the district court
did not err by denying this claim. 2
Second, Scholl contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to suppress
clothing obtained from an illegal search of his backpack and appellate
counsel was ineffective for failing to raise the issue on appeal. Scholl
failed to demonstrate deficiency or prejudice. At the evidentiary hearing,
Scholl's trial attorneys explained that, in their view, the examinations of
Scholl's clothing were favorable to the defense. Thus, at trial, counsel
conceded that Scholl consented to the search. See Evans v. State, 117 Nev.
609, 622, 28 P.3d 498, 508 (2001); Lara v. State, 120 Nev. 177, 180, 87
P.3d 528, 530 (2004). The district court also found that Scholl consented
to the search and Scholl fails to demonstrate that this finding is clearly
iNettrour did not testify at the evidentiary hearing.
2 Forthe same reasons, we reject Scholl's contention that the
prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963).
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erroneous. 3 We conclude that the district court did not err by denying this
claim.
Third, Scholl contends that the district court erred by denying
his claim that trial counsel were ineffective for failing to remove a biased
juror and appellate counsel was ineffective for failing to raise the issue on
appeal. Scholl failed to demonstrate deficiency or prejudice. Although the
juror stated that she had formed an opinion of Scholl's guilt, she also
recognized that she did not have all of the facts. See Irvin v. Dowd, 366
U.S. 717, 722 (1961). One of Scholl's trial attorneys testified that she
made a strategic decision to keep the juror because the juror had admitted
that she formed an opinion and counsel believed that such jurors were the
most fair and counsel felt that the juror would advocate against death. We
conclude that the district court did not err by denying this claim.
Fourth, Scholl contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to challenge
the broadcasting of his trial online and appellate counsel was ineffective
for failing to raise the issue on appeal. Scholl also contends that counsel
should have challenged the trial court's failure to instruct witnesses not to
watch the broadcast because he had invoked the witness exclusion rule.
Scholl failed to demonstrate deficiency because he did not show that
counsel could have successfully excluded the media. Scholl also failed to
demonstrate prejudice because there is no indication in the record that
any of the witnesses watched the broadcast. We reject Scholl's assertion
3 We note that only one article of clothing appears to have been
obtained from Scholl's backpack. Scholl fails to explain the basis upon
which the other articles of clothing could have been suppressed.
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that we should presume witnesses watched the broadcast and tailored
their testimony to fill the gaps in the State's case. See Shilling v. United
States, 561 U.S. 358, 382 (2010). We conclude that the district court did
not err by denying this claim.
Fifth, Scholl contends that the district court erred by denying
his claim that trial counsel were ineffective for stipulating to the
admission of a report without confronting its author. Scholl failed to
demonstrate deficiency or prejudice. Trial counsel testified that they
made a strategic decision to stipulate to admission of the report because
its findings were favorable to the defense and they did not want to give its
author a chance to skew them in favor of the State. We reject Scholl's
assertion, made with the benefit of hindsight, that this strategy was
unreasonable because the State argued that the report was incriminating.
See Evans, 117 Nev. at 622, 28 P.3d at 508. We also reject Scholl's
assertion that trial counsel were ineffective for failing to obtain his
permission before waiving his right to confront the author of the report.
See Wilson v. Gray, 345 F.2d 282, 286 (9th Cir. 1965) ("It has been
consistently held that the accused may waive his right to cross
examination and confrontation and that the waiver of this right may be
accomplished by the accused's counsel as a matter of trial tactics or
strategy."); accord United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999).
We conclude that the district court did not err by denying this claim.
Sixth, Scholl asserts that the district court erred by denying
his claim that trial counsel were ineffective for failing to challenge "lost"
evidence and appellate counsel was ineffective for failing to raise the issue
on appeal. Scholl contends that law enforcement officers "lost" his
clothing when they placed it on the floor because it became contaminated.
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See Leonard v. State, 114 Nev. 1196, 1206, 969 P.2d 288, 294 (1998).
Scholl failed to demonstrate deficiency. Scholl's arson expert testified at
the evidentiary hearing that it was "virtually impossible" for the clothing
to become contaminated simply by placing it on the floor. Scholl failed to
demonstrate that the clothing was "lost," that law enforcement lost the
clothing in bad faith, or that he was prejudiced. Id. We therefore conclude
that the district court did not err by denying this claim.
Seventh, Scholl contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to object
when the State gave inadequate endorsement information regarding its
experts and appellate counsel was ineffective for failing to raise the issue
on appeal. Scholl failed to demonstrate deficiency or prejudice.
Regardless of any statutorily inadequate disclosures, one of Scholl's trial
attorneys explained that they wanted the State's experts to testify because
their findings were favorable to the defense. Although Scholl asserts that
counsel should have objected when the experts testified inconsistently
with the endorsement information provided by the State, he failed to
establish that an objection on this basis would have been successful or
that the result of trial would have been different. We conclude that the
district court did not err by denying this claim.
Eighth, Scholl contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to prevent
the admission of "perjured testimony" and appellate counsel was
ineffective for failing to raise the issue on appeal. The district court
denied this claim because Scholl failed to demonstrate that any witnesses
committed perjury. This finding is not clearly erroneous and therefore we
conclude that the district court did not err by denying this claim.
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Ninth, Scholl contends that the district court erred by denying
his claim that trial counsel were ineffective for failing to object to the
introduction of prior bad act testimony and appellate counsel was
ineffective for failing to raise the issue on appeal. Scholl contends that
counsel should have objected when law enforcement officers testified that
they (1) matched a recovered palm print to Scholl's, which was on file with
LVMPD, and (2) ran Scholl's name through SCOPE and got a "hit." Scholl
failed to demonstrate deficiency or prejudice. Regarding the palm print,
testimony established that it was obtained when Scholl was taken into
custody in this case and therefore the comment did not reference a prior
bad act. Regarding the SCOPE "hit," we agree with the district court that
the statement was vague and there is not a reasonable probability that an
objection would have changed the result at trial. We conclude that the
district court did not err by denying this claim.
Tenth, Scholl contends that the district court erred by denying
his claim that trial counsel were ineffective for failing to object to
numerous instances of prosecutorial misconduct and appellate counsel was
ineffective for failing to raise the issue on appeal. Scholl failed to
demonstrate that the prosecutor committed misconduct and that he would
have been entitled to relief. We conclude that the district court did not err
by denying this claim.
Eleventh, Scholl contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to retain an
arson expert. Scholl failed to demonstrate deficiency or prejudice. At the
evidentiary hearing, trial counsel testified that they retained an expert in
forensics generally but opted not to present his testimony or seek out an
arson expert because they believed the State's reports were favorable to
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the defense and they could demonstrate this through cross-examination.
The arson expert testified at the evidentiary hearing that the reports were
mostly favorable to the defense and that counsels' cross-examinations
were generally effective. Although the expert felt that the State's
witnesses misstated certain facts, he admitted that their testimony was
mostly accurate. We conclude that the district court did not err by
denying this claim.
Twelfth, Scholl contends that the district court erred by
denying his claim that trial counsel were ineffective for failing to
investigate and present evidence regarding (1) a missing patch of hair on
his arm, (2) the first cab driver to leave the night club, (3) his "Asian
mafia" defense, (4) the $20,000 reward, (5) the gasoline used to commit the
crime, and (6) the "lost" clothing. Scholl failed to present the evidence that
a more adequate investigation would have revealed and did not
demonstrate that a reasonable probability existed that such evidence, if
presented, would have changed the result at trial. See Molina u. State,
120 Nev. 185, 192, 87 P.3d 533, 538 (2004). We conclude that the district
court did not err by denying this claim.
Thirteenth, Scholl contends that the district court erred by
denying his claim that appellate counsel was ineffective for failing to
challenge the trial court's failure to suppress an unreliable identification. 4
Scholl failed to demonstrate deficiency because appellate counsel
4 Scholl also argues that appellate counsel should have challenged
the trial court's failure to grant a motion for a mistrial. We decline to
consider this assertion because it is not supported by legal authority. See
Maresca u. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
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challenged the reliability of the identification generally and argued that it
violated his right to due process. Scholl also failed to demonstrate
prejudice. The witness only stated she was "fairly" certain that Scholl was
the man she had seen the previous day because his physical
characteristics fit those she had given to law enforcement. Her testimony
was supported by testimony that Scholl had said he was capable of
committing a crime similar to the one that occurred and testimony that
Scholl confessed. We conclude that the district court did not err by
denying this claim.
Fourteenth, Scholl contends that the district court erred by
denying his claim that appellate counsel was ineffective for failing to raise
numerous instances of judicial bias. Scholl fails to demonstrate that the
judge was biased or that he would have been entitled to relief. We
conclude that the district court did not err by denying this claim.
Fifteenth, Scholl contends that the district court erred by
denying his claim that appellate counsel was ineffective for failing to
argue that he was prejudiced by the admission of autopsy photographs of
the victim alongside photographs of him in handcuffs. The district court
denied this claim because appellate counsel challenged the photographs of
Scholl on appeal and this court concluded that they were properly
admitted. The district court also found that the photographs of the victim
were properly admitted and therefore this claim would not have been
successful on appeal. We agree. We reject Scholl's assertion that the
photographs of the victim were irrelevant because the cause of death was
not disputed. See Doyle v. State, 116 Nev. 148, 161, 995 P.2d 465, 473
(2000). We conclude that the district court did not err by denying this
claim.
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Sixteenth, Scholl contends that the district court erred by
denying his claim that appellate counsel was ineffective for failing to
argue that the trial transcripts were incomplete. Scholl failed to
demonstrate that this claim would have been successful on appeal because
he failed to show that any of the missing portions of the record precluded
meaningful appellate review. See Preciado v. State, 130 Nev., Adv. Op. 6,
318 P.3d 176, 178 (2014). We conclude that the district court did not err
by denying this claim.
Having considered Scholl's contentions and concluded that no
relief is warranted, 5 we
ORDER the judgment of the district court AFFIRMED.
Gibbons Pickering
7 , J.
cc: Hon. Linda Marie Bell, District Judge
Oronoz & Ericsson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
5 Scholl
also contends that cumulative error entitles him to relief.
We conclude that no relief is warranted on this claim.
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