Simpson (Orenthal) v. State ( 2015 )

 103 P.3d 25, 33 (2004). 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, Simpson argues that counsel were ineffective for failing
to investigate, prepare a defense to, or redact several examples of bad-
character evidence contained in the audio recordings admitted into
evidence. Simpson also suggests that counsel were ineffective for failing
to request a limiting jury instruction pursuant to Tavares v. State, 117
Nev. 725, 30 P.3d 1128 (2001). Simpson has failed to demonstrate
deficiency or prejudice. Galanter testified that it was a strategic decision
to play for the jury comments by police personnel at the crime scene
because it showed police bias against Simpson. Simpson has not
demonstrated that this was an extraordinary circumstance in which
strategy would be deemed objectively unreasonable. See Doleman v. State,
112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996).
As to the rest of the alleged bad-character evidence, Simpson
points to nothing in the record to indicate whether the jury actually
listened to the complained-of audio snippets either in court or during
deliberations. Accordingly, Simpson has not demonstrated the key facts
underlying his claim by a preponderance of the evidence. Even if the jury
had heard the evidence, Simpson still failed to demonstrate deficiency.
First, none of the complained-of evidence was relevant. See NRS 48.015
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(defining it as "having any tendency to make the existence of any fact that
is of consequence to the determination of the action more or less probable
than it would be without the evidence"). Simpson has neither alleged that
counsel were objectively unreasonable in not objecting to the evidence on
those grounds nor demonstrated that counsel were objectively
unreasonable in not producing additional irrelevant evidence to counter it.
Second, Simpson does not allege, and it does not appear from the record,
that the evidence of which he now complains was admitted "for the
purpose of proving that the person acted in conformity therewith." NRS
48.045(1), (2). He has thus failed to demonstrate that he had the right to a
Tavares instruction, see 117 Nev. at 730-31, 30 P.3d at 1131 (providing the
right to a limiting jury instruction for evidence admitted pursuant to NRS
48.045(2)), modified in part by Mclellan v. State, 124 Nev. 263, 182 P.3d
106 (2008). Finally, even were counsel objectively unreasonable, Simpson
has failed to demonstrate a reasonable probability of a different outcome
at trial had the evidence been excluded, because there was substantial
evidence that he conspired with others to set up the property-recovery
plan, including the inveigling of the victims and the use of force. We
therefore conclude that the district court did not err in denying this claim.
Second, Simpson argues that counsel were ineffective for
failingS to challenge and limit the admission of evidence and arguments
regarding a civil judgment and, in particular, the State's references to it as
the Goldman judgment. Simpson has failed to demonstrate deficiency or
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prejudice. The district court's finding that counsel did attempt to limit the
introduction of the evidence was supported by substantial evidence in the
record, including a motion in limine and various objections. Further, we
agree with the district court that Simpson did not demonstrate that the
failure to object to every mention of the "Goldman" judgment constituted
deficiency. Moreover, although Simpson's appendix did not contain any
transcripts of the voir dire process, the record indicates that the jury was
asked about the Goldmans' civil suit during voir dire. See Simpson v.
State, Docket No. 53080 (Order of Affirmance, October 22, 2010).
Accordingly, Simpson has failed to demonstrate a reasonable probability of
a different outcome had counsel made further efforts to excise "Goldman"
from references to the civil judgment. We therefore conclude that the
district court did not err in denying this claim.
Third, Simpson argues that counsel was ineffective for failing
to object to the prosecutor's comments in rebuttal argument disparaging
the defense as "hypocritical," "a joke," and "spin." Simpson has failed to
demonstrate prejudice. The jury was instructed that argument of counsel
is not evidence, and this court presumes, as it must, that a jury follows its
instructions, Hyman v. State, 121 Nev. 200, 211, 111 P.3d 1092, 1100
(2005). Simpson has thus failed to demonstrate a reasonable probability
of a different outcome had counsel objected to the disparaging comments.
We therefore conclude that the district court did not err in denying this
claim.
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Fourth, Simpson argues that counsel were ineffective for
failing to investigate and present evidence regarding ownership of the
items taken from the victims. Simpson has failed to demonstrate
deficiency or prejudice. Ownership of the items was irrelevant to any
elements of the offenses charged. Further, such evidence would not have
resulted in a reasonable probability of a different outcome. Simpson had
acknowledged that property belonging to each of the victims was also
taken by him and/or his coconspirators. And insofar as the evidence could
have impeached part of the testimony of victim B. Fromong, the portions
of his testimony relevant to the elements of the crimes were supported by
the audio recordings and/or testimony of other witnesses. We therefore
conclude that the district court did not err in denying this claim.
Fifth, Simpson argues that counsel were ineffective for failing
to request a jury instruction on citizen's arrest. Simpson has failed to
demonstrate deficiency or prejudice. Counsel testified that they did not
believe the facts of the case met the requirements for citizen's arrest.
Simpson has not demonstrated otherwise since he has presented no
evidence that a public offense was attempted or committed in his presence,
he does not allege what crimes the victims in this case committed outside
his presence, nor has he demonstrated a reasonable belief that the victims
in this case committed a felony. See NRS 171.126. Rather, even assuming
that Simpson believed that a felony had occurred, his belief was that it
had been committed by a third party who was not present for the instant
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crimes. We therefore conclude that the district court did not err in
denying this claim.
Sixth, Simpson argues that counsel were ineffective for failing
to investigate and present available evidence to show a physiological basis
to support his claim that he did not see weapons in the hotel room.
Simpson has failed to demonstrate deficiency or prejudice. The district
court's finding that Simpson knew about the gun was supported by
substantial evidence in the record. W. Alexander and M. McClinton
testified that Simpson asked them to bring guns, and Galanter testified
that Simpson had admitted to him that he had asked them to do so.
Galanter also testified that he did not pursue the defense because
Simpson denied that he was intoxicated. We therefore conclude that the
district court did not err in denying this claim.
Simpson also argues that the district court erred in denying
his claims of ineffective assistance of appellate counsel Galanter." 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 had a reasonable probability of success on
'Grasso withdrew as counsel on appeal and was replaced by
Malcolm LaVergne. Galanter was responsible for the contents of the
opening brief, appendices, and petition for rehearing. Galanter withdrew
after this court denied the petition for rehearing, leaving LaVergne
responsible for the petition for en banc reconsideration.
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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. at
697. Appellate counsel is not required to, and will be most effective when
he does not, raise every non-frivolous issue in appellate proceedings. See
Jones v. Barnes, 463 U.S. 745, 751 (1983); Ford v. State, 105 Nev. 850,
853, 784 P.2d 951, 953 (1989).
First, Simpson argues that counsel was ineffective for failing
to raise the lack of a Tavares instruction and to challenge the admission of
the so-called bad-character evidence, references to the Goldmans, and the
prosecutor's disparagement of the defense in closing and rebuttal
arguments. For the reasons discussed above, Simpson has failed to
demonstrate that counsel was deficient or that Simpson was prejudiced.
We therefore conclude that the district court did not err in denying these
claims.
Second, Simpson argues that counsel was ineffective for failing
to adequately raise his claim that assault with use of a deadly weapon is a
lesser-included offense of robbery with use of a deadly weapon such that a
conviction for both offenses violated the Double Jeopardy Clause of the
United States Constitution. Simpson has failed to demonstrate deficiency.
Preliminarily, we note that despite having the burden to overcome the
presumption that counsel was effective, Simpson failed to ask Galanter
why the arguments on appeal focused on redundancy instead of Double
Jeopardy. Simpson thus failed to meet his burden of demonstrating that
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counsel was objectively unreasonable. Further, this court has never
issued an opinion as to whether assault is a lesser-included offense of
robbery, and it was not objectively unreasonable for counsel to concentrate
his arguments on the well-developed legal principle of redundancy. We
therefore conclude that the district court did not err in denying this claim.
Third, Simpson argues that counsel was ineffective for failing
to bring to this court's attention on rehearing "the law" as stated in
Hyman v. Williams, in which a federal district court concluded that under
Nevada law, assault with use of a deadly weapon is a lesser-included
offense of robbery with use of a deadly weapon. 2:09-CV-1124-RLH-LRL,
2011 WL 941065, at *6 (D. Nev. Mar. 15, 2011). Simpson has failed to
demonstrate deficiency or prejudice. Hymon was not decided until after
the issuance of this court's order denying the petition for rehearing. Even
had it been decided earlier, the reasoning in Hymon is not persuasive
since its scant analysis did not include consideration of the word
"intentionally" in Nevada's assault statute. See NRS 200.471(1)(a)(2); see
also Schuck v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 440
n.2, 245 P.3d 542, 546 n.2 (2010) (noting that federal district court
dispositions may be persuasive but that they are not binding). We
therefore conclude that the district court did not err in denying this claim.
Fourth, Simpson argues that counsel was ineffective for failing
to raise in the petition for rehearing that this court misapprehended a
material fact and law relevant to his argument that the assault and
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robbery convictions were redundant. 2 Simpson has failed to demonstrate
deficiency or prejudice. Simpson again failed to inquire of Galanter why
he did not challenge the alleged errors, and he therefore failed to
demonstrate that counsel was objectively unreasonable. Simpson also
failed to demonstrate that this court misapprehended the issue of
legislative intent such that counsel was objectively unreasonable for not
challenging it on rehearing. Rather than demonstrating that the
"legislative history shows that an ambiguous statute was intended to
assess one punishment," Wilson v. State, 121 Nev. 345, 355-58, 114 P.3d
285, 292-94 (2005), Simpson not only makes no allegation that the statute
is ambiguous, but also twists the Wilson language to incorrectly argue
that he can only be punished for both crimes if the legislative history
clearly states that the Legislature did intend multiple punishments with
other crimes.
Moreover, Simpson did not demonstrate a reasonable
probability of a different outcome had counsel argued on rehearing that
this court misapprehended a material fact. When determining whether
charges were redundant, this court generally looks to
2As Simpson recognizes, this court has since renounced the
redundancy doctrine and reaffirmed that in situations such as these where
the statutory text neither authorizes nor prohibits cumulative
punishment, the Double Jeopardy Clause is implicated only where the
elements of one offense are wholly contained in the elements of another.
Jackson v. State, 128 Nev., Adv. Op. 55, 291 P.3d 1274, 1282 (2012).
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whether the gravamen of the charged offenses is
the same such that it can be said that the
legislature did not intend multiple convictions.
Redundancy does not, of necessity, arise when a
defendant is convicted of numerous charges
arising from a single act. The question is whether
the material or significant part of each charge is
the same even if the offenses are not the same.
Salazar v. State, 119 Nev. 224, 227-28, 70 P.3d 749, 751 (2003) (citations
and internal punctuation omitted), disapproved of by Jackson, 128 Nev.,
Adv. Op. 55, 291 P.3d at 1282. Here, the material part of each charge was
not the same. The gravamen of assault is inducing fear or apprehension of
bodily harm, while the gravamen of robbery is taking property by means of
fear or force. See Simpson v. State, Docket No. 53080 (Order of
Affirmance, October 22, 2010) (acknowledging that "[a] ssault criminalized
placing a person in apprehension of imminent bodily harm" while "robbery
criminalizes taking property from a person or in his presence"). Thus even
assuming that we misapprehended a fact, this court would nevertheless
have concluded on rehearing that the gravamen of the two charges was
different. Accordingly, there was no reasonable probability of a different
outcome. We therefore conclude that the district court did not err in
denying this claim.
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Fifth, Simpson argues that counsel was ineffective for failing
to argue that allowing separate convictions for both the assault and
robbery charges violated his rights to due process because he was not
noticed that the assault and robbery charges were being based upon
different facts. Simpson has failed to demonstrate deficiency or prejudice.
In support of his one-sentence argument, Simpson cites two cases that are
inapposite to his situation. In Green v. State, this court found a due
process violation where, after the defense had rested, the information was
amended to change the alleged facts constituting a lewdness charge
entirely, thereby circumventing the defense that had been presented to
the jury. 94 Nev. 176, 576 P.2d 1123 (1978). Simpson's information was
not amended once trial began and he does not allege that any defense was
nullified. In Alford v. State, this court found a due process violation where
the jury was unexpectedly instructed on a different theory of liability than
that charged and where "there [was] no reason why defense counsel would
have even been thinking about" the new theory. 111 Nev. 1409, 1413, 906
P.2d 714, 716 (1995). Simpson does not allege that his jury was instructed
as to a new theory of liability. Simpson has otherwise failed to support his
argument with authority or to provide any cogent argument. See Maresca
v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). We therefore conclude
that the district court did not err in denying this claim.
Sixth, Simpson argues that counsel was ineffective for failing
to provide a complete record on appeal in support of his claim that the
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district court erred in denying Simpson's proposed jury instructions for
second-degree kidnapping and larceny where they were lesser-included
offenses of first-degree kidnapping and robbery, respectively. Simpson has
failed to demonstrate prejudice. Appellate counsel raised the claim but
failed to provide accurate versions of the proposed jury instructions, and
this court refused to consider his claims. Simpson v. State, Docket No.
53080 (Order of Affirmance, October 22, 2010).
Simpson's claim regarding kidnapping is a bare statement
that first-degree kidnapping requires only the additional element of intent
to commit robbery. His claim contains no cogent argument regarding
what evidence would have supported a second-degree kidnapping
conviction while acquitting him of a first-degree kidnapping. See Rosas v.
State, 122 Nev. 1258, 1264, 147 P.3d 1101, 1105-06 (2006). We thus need
not consider this part of his claim. See Maresca, 103 Nev. at 673, 748 P.2d
at 6 (1987). Nor could Simpson have demonstrated a reasonable
probability of a different outcome on appeal had counsel included the
instructions in the appendices because there is substantial evidence that
Simpson intended to use force to obtain the property.
Simpson's claim regarding larceny also fails. Larceny is not a
lesser-included offense of robbery because each requires proof of an
element that the other does not. See Barton v. State, 117 Nev. 686, 692, 30
P.3d 1103, 1107 (2001), overruled on other grounds by Rosas, 122 Nev. at
1269, 147 P.3d at 1109. Robbery requires two unique elements: the
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property be taken "from the person [or presence] of another" and "by
means of force or violence or fear of injury." NRS 200.380(1). Larceny in
turn has the unique element of specific intent. See NRS 205.220(1)(a)
("Intentionally steals, takes and carries away, leads away or drives
away. . . ."); see also Grant v. State, 117 Nev. 427, 435, 24 P.3d 761, 766
(2001) (holding sufficient evidence supported the larceny element that the
defendant have the "intent to permanently deprive the owner of the
property"), cf. Truesdell v. State, 129 Nev. Adv. Op. 20, 304 P.3d 396, 402
(2013) (holding that trespass is not a lesser-included offense of home
invasion because the former contains an element of specific intent that the
latter lacks), reh'g denied (May 31, 2013), reconsideration en banc denied
(July 18, 2013), cert. denied, 134 S. Ct. 651 (2013). Simpson conceded as
much where his proposed jury instruction for larceny began, "Larceny is a
specific intent crime." Simpson's reliance on Jefferson v. State is
misplaced where that holding was specifically limited to the facts of that
case. 108 Nev. 953, 954, 840 P.2d 1234, 1235 (1992). We therefore
conclude that the district court did not err in denying this claim.
Simpson next argues that Galanter was ineffective pursuant
to Cuyler v. Sullivan, because "an actual conflict of interest adversely
affected [Galanter's] performance." 446 U.S. 335, 349-50 (1980). A
petitioner who demonstrates that an actual conflict has adversely affected
counsel's performance has satisfied the deficiency prong of Strickland, and
this court presumes that he was prejudiced. Clark v. State, 108 Nev. 324,
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326, 831 P.2d 1374, 1376 (1992). IA] conflict exists when an attorney is
placed in a situation conducive to divided loyalties." Id. (quoting Smith v.
Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)).
First, Simpson argues that Galanter had an actual conflict of
interest because he wanted to extend his representation of Simpson in
order to benefit from the continued attorney's fees and publicity. Simpson
has failed to demonstrate that there was an actual conflict of interest. The
district court's finding that this was essentially a fee dispute is supported
by the record. There was no written fee agreement, Simpson testified that
Galanter agreed not to charge fees, and Galanter testified, "I don't do
anything for free." Further, this court has never held that a desire for
remuneration or enjoying publicity constitutes an actual conflict of
interest giving rise to a presumption of prejudice, and the United States
Supreme Court has suggested that they would not. See Mickens v. Taylor,
535 U.S. 162, 174-75 (2002) (calling into question the federal courts'
practice of applying "Sullivan 'unblinkingly' to 'all kinds of alleged
attorney ethical conflicts" and clarifying "that the language of Sullivan
itself does not clearly establish, or indeed even support" applying it to
situations where "representation of the defendant somehow implicates
counsel's personal or financial interests" (quoting Beets v. Scott, 65 F.3d
1258, 1266 (5th Cir. 1995) (en banc))); see also People v. Doolin, 198 P.3d
11, 41 (Cal. 2009) ("In a sense, every representation begins with a lawyer-
client conflict. If the representation is for a fee, the lawyer's economic
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interest will be to maximize the amount of the fee and the client's will be
to minimize it. Conversely, if the representation is for a flat fee, the
attorney's interest will be to minimize the amount of time spent on the
case, and the client's interest will be to maximize it." (quoting Beets, 65
F.3d at 1297 (King, J., dissenting))) (internal punctuation omitted). We
therefore conclude the district court did not err in denying this claim.
Second, Simpson claims that Galanter had an actual conflict of
interest because he had advised Simpson regarding the property recovery
plan and would thus have been a witness and that he wanted to hide his
pre-incident involvement in order to avoid possible civil and criminal
liability, professional discipline, and damage to his reputation. Simpson
has failed to demonstrate that an actual conflict of interest affected
Galanter's performance. The district court's finding that Simpson's
actions "went far beyond" what he allegedly discussed with Galanter are
supported by substantial evidence in the record. Simpson thus has failed
to demonstrate that Galanter would have been a witness or that he was
subject to any liability, discipline, or damage as a result of his alleged
advice. Accordingly, this does not implicate a situation conducive to
divided loyalties, and we conclude that the district court did not err in
denying this claim.
Finally Simpson argues that the cumulative errors of trial and
appellate counsel warrant relief. Simpson has demonstrated only one
error: appellate counsel's failure to provide a complete, accurate record on
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appeal. Accordingly, there are no errors to cumulate, and we conclude
that the district court did not err in denying this claim.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
Vo. 4..A.
- J.
Parraguirre
D,ust
J.
-
, J.
Douglas
cc: Hon. Linda Marie Bell, District Judge
Pitaro & Fumo, Chtd.
Palm Law Firm, Ltd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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