Morris (Brent) v. State ( 2015 )

 First, Morris contends that trial counsel was ineffective for
interfering with his right to testify. Morris claims that the district court
overlooked the possibility that trial counsel impermissibly waived his
right to testify because Morris never made a waiver on the record. Morris
fails to demonstrate that trial counsel's performance was deficient or that
he was prejudiced. The district court found that Morris's assertion that he
wanted to testify lacked credibility as Morris was thoroughly canvassed
regarding this right, demonstrated concern about a prior conviction for
similar conduct being used against him, and never indicated he wanted to
testify. The district court's conclusions are supported by substantial
evidence. There is nothing in the record to demonstrate that trial counsel
interfered with Morris's right to testify. Additionally, Morris fails to
demonstrate how his testimony would have altered the outcome at tria1. 1
Therefore, the district court did not err by denying this claim.
Second, Morris claims that appellate counsel was ineffective
for failing to challenge the deprivation of his right to testify as the district
court overlooked the lack of a personal, voluntary, and knowing waiver of
Morris's right to testify. Morris fails to demonstrate deficiency or
1-Of particular note, Morris fails to include numerous trial exhibits—
videotapes purportedly showing Morris committing the crimes for which
he was charged—in the appendix. See NRAP 30(d) ("Copies of relevant and
necessary exhibits shall be clearly identified, and shall be included in the
appendix," or "[i]f the exhibits are too large or otherwise incapable of being
reproduced in the appendix, the parties may file a motion requesting the
court to direct the district court clerk to transmit the original exhibits.");
see also Thomas v. State, 120 Nev. 37, 43 & n.4, 83 P.3d 818, 822 & n.4
(2004) (stating that appellant is ultimately responsible for providing this
court with portions of the record necessary to resolve his claims on
appeal).
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prejudice. At an evidentiary hearing on the petition, appellate counsel
testified that he believed the canvass was appropriate, that Morris waived
the right to testify, and that a challenge would not be successful. See
Donovan v. State 94 Nev. 671, 675, 584 P.2d 708, 711 (1978) (holding that
counsel cannot be ineffective for failing to make futile motions).
Furthermore, we have held that an express waiver of the right to testify is
not required for a valid conviction, see Phillips v. State, 105 Nev. 631, 633,
782 P.2d 381, 382 (1989), and Morris fails to demonstrate that this claim
had a reasonable probability of success on appeal. Therefore, the district
court did not err by denying this claim.
Third, Morris contends that trial counsel was ineffective for
failing to ensure that all bench conferences were recorded. While
numerous bench conferences were subsequently memorialized, Morris
claims that the bench conference after the defense rested was not recorded
and that the issue of his desire to testify may have been resolved during
that conference. Morris fails to demonstrate that counsel was deficient
because he fails to demonstrate that the missing portions of the record
"are so significant that their absence precludes this court from conducting
a meaningful review of the alleged errors that the appellant identified and
the prejudicial effect of any error." Preciado v. State, 130 Nev., Adv. Op. 6,
318 P.3d 176, 178 (2014). Because Morris has failed to make such a
showing, we conclude that the district court did not err by denying this
claim.
Fourth, Morris claims that appellate counsel was ineffective
for failing to challenge trial counsel's failure to ensure all bench
conferences were recorded. Morris fails to demonstrate that appellate
counsel's performance was deficient or that he was prejudiced. Appellate
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counsel testified that he did not pursue this claim because one must not
only demonstrate that the bench conferences were not recorded but also
resulting prejudice, which appellate counsel recognized was problematic
due to the lack of a record. Therefore, appellate counsel did not feel a
challenge on this ground would be successful. See Jones v. Barnes, 463
U.S. 745, 751 (1983) (recognizing that appellate counsel is not required to
raise every non-frivolous issue on appeal). Moreover, claims of ineffective
assistance of counsel cannot generally be raised on direct appeal. Feazell
v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995). Furthermore,
Morris fails to demonstrate a reasonable probability of success on appeal.
Therefore, the district court did not err by denying this claim.
Fifth, Morris contends that appellate counsel was ineffective
for failing to argue that the evidence supporting the charges of fraudulent
acts in a gaming establishment was insufficient. Morris fails to
demonstrate deficiency or prejudice. Appellate counsel testified that,
while he raises sufficiency claims in a large majority of the appeals he
handles, he chose not raise a sufficiency claim in this case after reviewing
the testimony and videotapes because he "felt that the evidence was just
overwhelming." See Jones, 463 U.S. at 751. Moreover, Morris fails to
demonstrate a reasonable probability of success on appeal had appellate
counsel challenged the sufficiency of the evidence. Therefore, the district
court did not err by denying this claim.
Sixth, Morris claims that appellate counsel was ineffective for
failing to challenge the jury instruction regarding flight. Morris fails to
demonstrate that appellate counsel was deficient or that he was
prejudiced. Appellate counsel testified to his belief that there was
sufficient evidence to support the instruction and that a challenge would
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be unsuccessful. See id. Furthermore, Morris fails to demonstrate a
reasonable probability of success on appeal as testimony was introduced
that Morris left the casino in a hurry after a floor supervisor questioned
whether Morris's bet was made in time and that it was uncommon for a
player in Morris's situation, who had the roll of the dice and who was
rolling successfully, to leave the game See Weber v. State, 121 Nev. 554,
581-82, 119 P.3d 107, 126 (2005) (describing when a flight instruction is
appropriate). Therefore, the district court did not err by denying this
claim.
Seventh, Morris contends that appellate counsel was
ineffective for failing to challenge the district court's reliance on an invalid
conviction when sentencing Morris under the small habitual criminal
enhancement statute because one of the convictions relied upon was
subsequently overturned. Morris fails to demonstrate that appellate
counsel was deficient or that he was prejudiced. In the documents before
this court, Morris does not demonstrate that his prior conviction was
overturned. 2 Additionally, the State presented enough convictions for the
small habitual criminal enhancement without the allegedly overturned
conviction. Therefore, the district court did not err by denying this claim.
Lastly, Morris claims that cumulative error warrants relief.
As we have found no errors, there is nothing to cumulate.
2 The
documents presented demonstrate that the Michigan Court of
Appeals, pursuant to a federal court order granting Morris's petition for
writ of habeas corpus solely on a claim of appeal deprivation, remanded
Morris's case to the trial court for the appointment of appellate counsel
and briefing. These documents demonstrate that Morris was allowed to
appeal his conviction, not that the conviction was overturned.
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Haying considered Morris's contentions and concluded that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
aitta
J.
cc: Eighth Judicial District Court Dept. 20
The Kice Law Group, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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