Hall (Bryan) v. State (Death Penalty-Pc) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
BRYAN LEE HALL, No, 81994
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. DEC 0 8 2022
A. BROWN
PREME COURT
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDIAT CLERK
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Michelle Leavitt, Judge.
Appellant Bryan Hall robbed and murdered Bradley Flamm at
a Las Vegas resort and casino. Hall testified that he killed Flamm because
Flamm made offensive comments about his sexual history with Hall's wife
and the paternity of Hall's child. A jury found Hall guilty of robbery and
first-degree murder and sentenced him to death for the murder. This court
affirmed the convictions and death sentence on appeal. See Hall v. State,
No. 62663, 2015 WL 6447296 (Nev. Oct. 22, 2015) (Order of Affirmance).
Hall filed a timely, first postconviction petition for a writ of habeas corpus.
The district court denied the petition without conducting an evidentiary
hearing.
Ineffective as.sistance of counsel
Hall argues the district court erred in denying his claims of
ineffective assistance of trial and appellate counsel.' To prove ineffective
1We acknowledge that Hall argues that ineffective assistance of
counsel provides good cause and prejudice to raise claims that could have
been raised on direct appeal. See NRS 34.810(1)(b). We need not address
the procedural-bar overlay for two reasons. First, the ineffective-
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assistance of 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 there is a reasonable
probability that, but for counsel's errors, the outcome of the proceedings
would have been different. Strickland v. Washington, 466 U.S. 668, 687-88
(1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984)
(adopting the test in Strickland). Both components of the inquiry must be
shown. Strickland, 466 U.S. at 697. An evidentiary hearing is required
when the petitioner raises claims supported by specific facts that are not
belied by the record and that, if true, would entitle the petitioner to relief.
Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
Juvenile records
Hall argues that the district court erred in denying his claim
that trial and appellate counsel failed to adequately challenge the State's
use of his California juvenile records during the penalty phase of his trial.
He contends that trial and appellate counsel should have challenged the
State's introduction of his juvenile records based on a California law
prohibiting the release of juvenile records to unauthorized persons.2 Hall
alleges that when the State obtained his juvenile file, a notice was attached
to the records that cited Cal. Welf. & Inst. Code § 827, which requires a
assistance-of-counsel claims were properly raised for the first time in the
postconviction habeas petition. See Pellegrini v. State, 117 Nev. 860, 34
P.3d 519 (2001). Second, if Hall had demonstrated that either trial or
appellate counsel provided ineffective assistance, he would be entitled to
relief and a separate review of the substantive claim underlying the
ineffective-assistance-of-counsel claim would not provide further relief.
2 To the extent Hall argues that counsel should have challenged the
use of his juvenile records under NRS Chapter 62H, we conclude this
contention lacks merit because those statutes govern Nevada juvenile
justice records.
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party authorized to inspect juvenile records to petition the juvenile court for
an order before further disclosure. See Lorenza P. v. Superior Court, 242
Cal. Rptr. 877, 879 (Ct. App. 1988) (explaining that defendant could not
obtain juvenile records by a subpoena; instead, she had "to petition the
juvenile court to review the records in camera to determine which, if any,
may be disclosed"). Because the State did not petition for a juvenile court
order permitting further release of his juvenile records, Hall alleges that
the State was not authorized to disseminate the records at trial. See People
v. Stewart, 269 Cal. Rptr. 3d 687, 701 (Ct. App. 2020) (providing that
"neither a prosecutor nor any other person authorized to inspect without a
court order is permitted to disseminate confidential information in juvenile
files to a person not so authorized").
Regarding the psychological portions of his juvenile file, Hall
contends that, even if the State properly obtained the records, trial and
appellate counsel should have challenged the use of psychological
evaluations against him on Fifth Amendment grounds. Hall alleges that,
as a juvenile, he did not initiate or voluntarily undergo a court-ordered
psychological evaluation, and the State affirmatively used his un-
Mirandized 3 statements against him in the penalty hearing, and not as
rebuttal of a mental status defense. Furthermore, Hall contends that the
district court erred in denying his claim of prosecutorial misconduct related
to the State's use of his juvenile psychological records—e.g., telling the jury
he had been assessed as a sexual sadist—and the State concedes that the
psychologist did not make that diagnosis.
The Supreme Court has found that the use of court-ordered
psychological examinations against a defendant may violate the Fifth
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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Amendment in some circumstances. Compare Estelle v. Smith, 451 U.S.
454, 468 (1981) ("A criminal defendant, who neither initiates a psychiatric
evaluation nor attempts to introduce any psychiatric evidence, may not be
compelled to respond to a psychiatrist if his statements can be used against
hiin at a capital sentencing proceeding."), with Buchanan v. Kentucky, 483
U.S. 402, 423-24 (1987) (explaining that introducing portions of a
psychiatric report, which the defense jointly requested, to rebut defendant's
mental status defense did not violate the Fifth Amendment), and Penry v.
Johnson, 532 U.S. 782, 794-95 (2001) (concluding that the admission of a
defense-requested psychiatric report during the penalty phase of trial,
which was prepared before trial for an unrelated rape charge, did not
warrant habeas relief). Likewise, this court has explained that "[denerally,
the State may not use a healthcare provider to introduce a defendant's un-
Mirandized statements from a court-ordered psychiatric evaluation."
Pirnentel v. State, 133 Nev. 218, 228, 396 P.3d 759, 768 (2017); see also
Brown v. State, 113 Nev. 275, 281, 289, 934 P.2d 235, 240, 245 (1997)
(concluding that the consideration at sentencing of defendant's unwarned
statements made to a psychiatrist in a court-ordered examination "violates
the 'fair play' rules ... and the Fifth Amendment concerns set forth in
Estelle, and constitute[d] reversible error"). Although trial and appellate
counsel challenged the use of Hall's juvenile psychological records under
Redmen v. State, 108 Nev. 227, 234, 828 P.2d 395, 400 (1992), overruled on
other grounds by Alford v. State, 111 Nev.. 1409, 906 P.2d 714 (1995), which
provided that "psychiatric evidence purporting to predict the future
dangerousness of a defendant is highly unreliable and, therefore,
inadmissible at death penalty sentencing hearings," given the authority
above, counsel's decision to forgo a Fifth Amendment challenge may have
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fallen below an objective standard of reasonableness and resulted in
prejudice.
In denying this ineffective-assistance-of-counsel claim without
conducting an evidentiary hearing, the district court overlooked the factual
issues concerning the California proceedings and the reasonableness of trial
and appellate counsel's investigation and litigation decisions. Cf. Johnson
v. State, 117 Nev. 153, 161, 17 P.3d 1008, 1013 (2001) (noting that an
evidentiary hearing may "be of little value" when the issue presented is
purely legal). We conclude that Hall alleged specific facts that are not belied
by the record and that, if true, may have entitled him to relief. In particular,
the factual underpinnings of trial and appellate counsel's investigation into
the juvenile records and the context of the psychological evaluations exist
outside the record. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225; see
also Mann v. State, 118 Nev. 351, 354, 46 P.3d 1228, 1230 (2002) (providing
"that [w]here something more than a naked allegation has been asserted, it
is error to resolve the apparent factual dispute without granting the accused
an evidentiary hearing." (internal quotation marks and alteration
omitted)). While we express no opinion as to the merits of the issues
discussed above, we conclude that an evidentiary hearing is necessary to
fully assess trial and appellate counsel's performance and any potential
prejudice that resulted. Accordingly, we reverse the district court's order
as to these ineffective-assistance-of-counsel claims and remand for an
evidentiary hearing to consider in the first instance whether Hall can
demonstrate deficient performance and prejudice. At the evidentiary
hearing, the district court should focus on whether trial and appellate
counsel's performance was deficient in investigating and addressing the
State's procurement and use of his juvenile file and challenging the
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admissibility of the juvenile psychological records. In assessing any
potential prejudice during the penalty phase, the district court should
consider the weight of the juvenile evidence considering the other evidence
presented and the extent to which the State relied on the juvenile evidence.
Provider-patient privilege
Hall argues that the district court erred in denying his claim
that trial and appellate counsel should have challenged the introduction of
his juvenile psychological records under California and Nevada privilege
statutes. We conclude this argument lacks merit.
Even assuming the records were privileged under California
law, he has not shown the documents were protected from admission in
Nevada. See Restatement (Second) of Conflict of Laws § 139(2) (1971)
(providing that lelvidence that is privileged under the local law of the state
which has the most significant relationship with the communication but
which is not privileged under the local law of the forum will be admitted").
As to Nevada, Hall contends that his psychological records were protected
by the psychologist-patient privilege. The district court found that, even if
the records were confidential, the "court-ordered examination" exception
under NRS 49.213(7) applied to Hall's statements. And Hall concedes that
no Nevada cases support his contention that the district court erroneously
applied the exception. Accordingly, he has not shown deficient performance
based on counsel's failure to assert the privilege. See Steinhorst v.
Wainwright, 477 So. 2d 537, 540 (Fla. 1985) ("The failure to present a novel
legal argument not established as meritorious in the jurisdiction of the court
to whom one is arguing is simply not ineffectiveness of legal counsel."). To
the extent Hall cites other privilege statutes, he has not presented relevant
authority or cogent argument. See Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987) (recognizing that "[i]t is appellant's responsibility to present
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relevant authority and cogent argument"). Therefore, the district court did
not err in denying this ineffective-assistance-of-counsel claim without
conducting an evidentiary hearing.4
Investigation and theory of defense
Hall argues that trial counsel should have called an expert to
discuss the effect of Hydrocodone found in Flamm's system and requested
independent testing of Flamm's bodily fluids.
At trial, the district court admitted a toxicology report that
showed Flamm had Hydrocodone in his system when he died. Hall contends
that trial counsel should have presented expert testimony to explain how
the effect of the drug in Flamm's system made him more prone to make a
comment instigating a fight. Hall has not shown deficient performance or
prejudice. Considering Hall's testimony that he attacked and killed Flamm,
trial counsel pursued an objectively reasonable defense that Flamm
provoked Hall and he acted in a sudden heat of passion, rather than with
deliberation and premeditation. See Florida v. Nixon, 543 U.S. 175, 191
(2004) ("Attorneys representing capital defendants face daunting
challenges in developing trial strategies, not least because the defendant's
guilt is often clear."). At trial, Hall testified about what Flamm said, and
Flamm's fiancee testified that Flamm sometimes made inappropriate
comments. Nevertheless, the jury rejected lesser offenses and found Hall
guilty of first-degree murder. Because the State presented overwhelming
evidence supporting that finding, Hall has not shown that presenting
4Hall also argues that the district court erred in denying his claims
that counsel should have argued that the use of the psychological records
violated his constitutional rights to counsel and due process. Hall points to
nothing in the record demonstrating violations of these rights beyond the
issues addressed above regarding use of the juvenile records. See Hargrove,
100 Nev. at 502-03, 686 P.2d at 225.
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additional evidence that Flamm likely made an inappropriate comment
would have created a reasonable probability of a different outcome in the
guilt phase of trial. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538
(2004) (providing that "[w]here counsel and the client in a criminal case
clearly understand the evidence and the permutations of proof and outcome,
counsel is not required to unnecessarily exhaust all available public or
private resources" when preparing a defense for trial). Likewise,
independent testing to confirm the presence of drugs in Flamm's system
would not have resulted in a different outcome. Therefore, the district court
did not err in denying this ineffective-assistance-of-counsel claim without
conducting an evidentiary hearing.
Prior-bad-act evidence
Hall argues that trial counsel should have ensured a limiting
instruction was given addressing the use of prior-bad-act evidence and
appellate counsel should have raised the issue. Hall has not shown deficient
performance or prejudice. The record shows that trial counsel objected to
the admission of evidence that, during an incident that led to a prior felony
battery conviction, Hall told his ex-wife that he would rape and kill her
former romantic partners. After the district court permitted the State to
elicit that testimony, trial counsel made a strategic decision to decline the
district court's offer to give a limiting instruction pursuant to Tavares v.
State, 117 Nev. 725, 731, 30 P.3d 1128, 1132 (2001); however, the jury was
instructed that a prior felony conviction could only be considered in
assessing a witness's credibility. Hall has not shown extraordinary
circumstances to challenge trial counsel's strategic decision. See id.(recognizing that "the defense may not wish a limiting instruction to be
given for strategic reasons"); see also Cullen v. Pinholster, 563 U.S. 170, 196
(2011) (explaining that a reviewing court is "required not simply to give the
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attorneys the benefit of the doubt, but to affirmatively entertain the range
of possible reasons [a petitioner's] counsel may have had for proceeding as
they did" (internal quotation marks, alterations, and citations omitted));
Lara v. State, 120 Nev. 177, 180, 87 P.3d 528, 530 (2004) (holding that
counsel's strategic decisions are "virtually unchallengeable absent
extraordinary circumstances" (internal quotation marks omitted)).
Likewise, given the overwhelming evidence of Hall's guilt, including his
testimony that he killed Flamm, he has not shown that appellate counsel
omitted a meritorious claim. Therefore, the district court did not err in
denying this claim without conducting an evidentiary hearing.
Examination of witnesses
Hall argues that trial and appellate counsel should have made
several challenges to trial testimony. For the reasons discussed below, Hall
has not shown deficient performance or prejudice. See Ennis v. State, 122
Nev. 694, 706, 137 P.3d 1095, 1103 (2006) ("Trial counsel need not lodge
futile objections to avoid ineffective assistance of counsel claims."); see also
McConnell v. State, 125 Nev. 243, 253, 212 P.3d 307, 314 (2009) ("Appellate
counsel is not required to raise every nonfrivolous issue on appeal.").
First, Hall contends that trial counsel failed to appropriately
object when the State asked him if his wife testified accurately about
picking him up the night of the killing and that appellate counsel should
have raised the issue. We disagree because trial counsel made an
appropriate objection pursuant to DeChant v. State, 116 Nev. 918, 924, 10
P.3d 108, 112 (2000) (holding that lay witness's opinion about the veracity
of another witness is inadmissible), and, given the overwhelming evidence
of guilt, Hall has not shown a reasonable probability of success had
appellate counsel raised this issue. See King v. State, 116 Nev. 349, 356,
998 P.2d 1172, 1176 (2000) (providing that prosecutorial misconduct may
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be harmless where there is overwhelming evidence of guilt). The district
court therefore did not err in rejecting this ineffective-assistance-of-counsel
claim without conducting an evidentiary hearing.
Second, Hall contends that trial and appellate counsel failed to
challenge a detective narrating surveillance footage. Much of the
surveillance footage came from an elevated camera and the detective's
narration assisted the jurors by orienting them and helping them follow the
timeline of Hall's movements inside and outside the casino. The narration
thus was not improper. See Burnside v. State, 131 Nev. 371, 387-89, 352
P.3d 627, 639-640 (2015) (explaining that narration of surveillance video is
proper if it assists the jury in making sense of the depicted images). Hall
also asserts that the State asked the detective leading questions about his
investigation. Even if the questions were leading, there was nothing
objectionable about the detective testifying to his perceptions of the crime
scene and his opinions about what crimes he was investigating. See NRS
50.265 (permitting opinion testimony based on a witness's perceptions).
Accordingly, Hall has not shown a reasonable probability of success had
trial counsel objected or appellate counsel raised this issue on appeal.
Therefore, the district court did not err in denying this ineffective-
assistance-of-counsel claim without conducting an evidentiary hearing.
Third, Hall contends that trial counsel should have objected to
leading questions posed to the medical examiner. After reviewing the
record, we discern nothing objectionable about asking the medical examiner
about her perceptions and opinions of Flamm's injuries. See NRS 50.285
(permitting expert opinion testimony). Accordingly, the district court did
not err in denying this ineffective-assistance-of-counsel claim without
conducting an evidentiary hearing.
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Fourth, Hall contends that trial and appellate counsel should
have challenged the testimony of Flamm's fiancee based on a lack of
personal knowledge about Flamm's tip money. She testified that on the
night of his murder, Flamm likely earned between $100 and $200 in cash
from tips. On the night of the murder, Flamm's fiancee worked as a
manager at the restaurant where Flamm worked. We conclude she had
sufficient personal knowledge to estimate the amount of tip money Flamm
likely made that night. See NR 50.265; Lane v. Second Judicial Dist. Court,
104 Nev. 427, 446, 760 P.2d 1245, 1257 (1988) ("[T]o be competent to testify,
a witness must have personal knowledge of the subject of his testimony.").
Thus, neither trial nor appellate counsel omitted a meritorious challenge,
and the district court did not err in denying this ineffective-assistance-of-
counsel claim without conducting an evidentiary hearing.
Finally, Hall contends that trial and appellate counsel should
have challenged a witness's identification of him from surveillance footage.
Hall has not shown that counsel omitted a meritorious challenge given his
testimony admitting that he was the individual depicted in the surveillance
footage. Furthermore, the record reflects that the witness had a reasonable
basis from which he could correctly identify Hall since he previously worked
with Hall for over a year. See Rossana v. State, 113 Nev. 375, 380, 934 P.2d
1045, 1048 (1997) (providing that a lay witness's opinion testimony
CCregarding the identity of a person depicted in a surveillance photograph"
is admissible "if there is some basis for concluding that the witness is more
likely to correctly identify the defendant from the photograph than is the
jury" (internal quotation marks omitted)). Therefore, the district court did
not err in denying this ineffective-assistance-of-counsel claim without
conducting an evidentiary hearing.
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Use of the term "murder"
Hall argues that trial counsel should have challenged the
prosecutor referring to Flamm's death as a "murder" by making ongoing
objections, and appellate counsel should have raised the issue. Contrary to
Hall's assertion, trial counsel's decision to object to the first instance and
not make ongoing objections was objectively reasonable because continued
objections would have unnecessarily drawn attention to the prosecutor
saying that Hall murdered Flamm. Cf. Bussard v. Lockhart, 32 F.3d 322,
324 (8th Cir. 1994) (observing that counsel's decision to object to
prosecutorial misconduct during closing argument is a strategic decision
which "must take into account the possibility that the court will overrule it
and that the objection will either antagonize the jury or underscore the
prosecutor's words in their minds"). The district court therefore did not err
in denying this ineffective-assistance-of-counsel claim without conducting
an evidentiary hearing.
Regarding appellate counsel, he raised several alleged
instances of prosecutorial misconduct that occurred in the penalty hearing.
See Hall v. State, No. 62663, 2015 WL 6447296, at *4-5 (Nev. Oct. 22, 2015)
(Order of Affirmance). The issue raised now would not have been frivolous
given that trial counsel preserved it below but considering the
overwhelming evidence in the guilt phase it was objectively reasonable for
appellate counsel to focus on penalty-phase claims of misconduct. See Gray
v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) ("When a claim of ineffective
assistance of counsel is based on failure to raise viable issues, the
[reviewing] court must examine the trial court record to deterrnine whether
appellate counsel failed to present significant and obvious issues on
appeal."). Therefore, the district court did not err in denying this
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ineffective-assistance-of-counsel claim without conducting an evidentiary
hearing.
Closing argument
Hall argues that appellate counsel should have argued the
State improperly shifted the burden of proof during its rebuttal argument.
"Generally, a prosecutor's comment on the defense's failure to call a witness
impermissibly shifts the burden of proof to the defense." Browning v. State,
120 Nev. 347, 360, 91 P.3d 39, 49 (2004).
Here, the State commented on trial counsel's unsupported
assertion about disinhibition and told the jury that the defense could have
presented a witness to testify about the effects of the Hydrocodone in
Flamm's blood. "The tactic of stating that the defendant can produce certain
evidence . . . is an attempt to shift the burden of proof and is improper."
Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989). Although the
issue thus may not have been frivolous, particularly where trial counsel
preserved the issue with an objection, appellate counsel was not ineffective
because even if this instance of misconduct were cumulated with the single
possible error demonstrated on direct appeal, Hall, 2015 WL 6447296, at *8
n.4, it is not reasonably probable that this issue would have changed the
outcome on appeal given the overwhelming evidence of guilt. Therefore, the
district court did not err in denying this ineffective-assistance-of-counsel
claim without conducting an evidentiary hearing.
Jury instructions
Hall argues that trial and appellate counsel should have
challenged the guilt and penalty phase jury instructions regarding the
weighing of aggravating and mitigating circumstances, premeditation and
deliberation, malice, equal and exact justice, and reasonable doubt. Hall
has not shown deficient performance or prejudice. Counsel could not have
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successfully challenged any of these instructions given controlling Nevada
authority. See, e.g., McConnell, 125 Nev. at 254, 212 P.3d at 314-15(explaining that nothing in Nevada's statutory scheme "requires a jury to
find, or the State to prove, beyond a reasonable doubt that no mitigating
circumstances outweighed the aggravating circumstances in order to
impose the death penalty"); Byford, v. State, 116 Nev. 215, 236-37, 995 P.2d
700, 714-15 (2000) (approving the premeditation and deliberation
instruction given here); id. at 232, 995 P.2d at 712 (upholding the malice
instruction where the jury is properly instructed on the presumption of
innocence); Leonard v. State (Leonard I), 114 Nev. 1196, 1208, 969 P.2d 288,
296 (1998) (concluding that the use of allegedly archaic statutory language
in the malice instruction did not deprive defendant of a fair trial); id. at
1209, 969 P.2d at 296 (providing that where the jury has been instructed
that the defendant is presumed innocent and that the State bears the
burden of proving guilt beyond a reasonable doubt, the equal-and-exact-
justice instruction does not undermine the presumption of innocence or
lessen the burden of proof); Chambers v. State, 113 Nev. 974, 982-83, 944
P.2d 805, 810 (1997) (upholding the reasonable doubt instruction provided
in NRS 175.211). Therefore, the district court did not err in denying this
ineffective-assistance-of-counsel claim without conducting an evidentiary
hearing.5
5Hall also argues that trial counsel should have objected to the
mitigation-evidence instruction. After considering the instructions as a
whole, this court rejected a challenge to this instruction on appeal. Hall,
2015 WL 6447296, at *6-7. That decision is the law of the case and Hall has
not demonstrated circumstances to warrant revisiting it. See Hsu v. Cty. of
Clark, 123 Nev. 625, 630, 173 P.3d 724, 728 (2007) (explaining that the
purpose of the law-of-the-case doctrine is to prevent reconsideration of
matters that have been settled and put to rest).
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Penctlty hearing advocacy
Hall argues that trial counsel abandoned the role of an advocate
during opening and closing remarks.6 During the penalty phase of trial,
"counsel's mission is to persuade the trier that his client's life should be
spared." Florida v. Nixon, 543 U.S. 175, 191 (2004). First, Hall takes issue
with trial counsel opening the penalty phase of trial with an anecdote about
not knowing how to describe his profession to his son's class. Hall asserts
that the anecdote told the jurors that trial counsel believed representing
capital defendants is so distasteful that he could not describe it. We
disagree because the anecdote communicated to the jurors that counsel
understood the unpleasant details of Hall's juvenile and adult criminal
offenses. Trial counsel was not objectively unreasonable in acknowledging
the grisly facts of both the underlying murder of Flamm and Hall's juvenile
conduct. See id. at 192 ("[C]ounsel cannot be deemed ineffective for
attempting to impress the jury with his candor and his unwillingness to
engage in a useless charade." (internal quotation marks omitted));
Yarborough v. Gentry, 540 U.S. 1, 9 (2003) ("By candidly acknowledging his
client's shortcomings, counsel might have built credibility with the jury and
persuaded it to focus on the relevant issues in the case."). And trial counsel
returned to the anecdote in closing argument to support his appeal for
mercy, which Hall concedes was his best argument against the death
penalty.
Relying on Wilson v. State, 105 Nev. 110, 771 P.2d 583 (1989),
Hall also contends that trial counsel niade comments that aided the
6 Hall also contends that trial counsel should have objected to multiple
alleged trial errors this court rejected under plain error review on direct
appeal. We conclude that harmless error review would not have resulted in
a different outcome on direct appeal.
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prosecution. In Wilson, this court concluded that trial counsel's "decision
not to present a large body of mitigating evidence, coupled with counsel's
egregious remarks before the sentencing panel, denied [appellant] the
effective assistance of counsel." Id. at 113, 771 P.2d at 584. Counsel's
performance in this case is not comparable to defense counsel's performance
in Wilson. Trial counsel presented substantial evidence in mitigation that
is reflected in one or more jurors finding nine mitigating circumstances.
Rather than making a plea for mercy directly for Hall, trial counsel
implored the jurors to bestow mercy for Hall's family and impose a life
sentence. Given the brutal and senseless nature of Flamm's murder and
Hall's adult and juvenile conduct, we conclude that counsel's approach was
not objectively unreasonable. See Yarborough, 540 U.S. at 5-6 ("[C]ounsel
has wide latitude in deciding how best to represent a client, and deference
to counsel's tactical decisions in his closing presentation is particularly
important because of the broad range of legitimate defense strategy at that
stage."). Drawing the jurors' attention to the pain felt by Flamm's family
supported counsel's argument that sentencing Hall to death would also
inflict pain on Hall's family. Furthermore, Hall has not shown a reasonable
probability of a different outcome had trial counsel made a plea for mercy
directly for Hall. Therefore, the district court did not err in denying this
ineffective-assistance-of-counsel claim without conducting an evidentiary
hearing.7
7To the extent Hall argues that appellate counsel should have raised
this issue, we conclude that he has not shown that counsel omitted a
meritorious issue because this court generally declines to address
ineffective-assistance-of-counsel claims on direct appeal. See Feazell v.
State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995).
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Capital deliberations
Hall argues that trial counsel misled the jurors about the
deliberative process and when the death penalty is an available sentence.
We disagree because under Nevada law, "a defendant is death-eligible once
the State proves the elements of first-degree murder and the existence of at
least one statutory aggravating circumstance." Castillo v. State, 135 Nev.
126, 128, 442 P.3d 558, 560 (2019); see also NRS 175.554(3). After reviewing
the record in this case, we conclude that trial counsel accurately described
the capital deliberative process. Trial counsel correctly told the jury that if
one juror finds mitigating circumstances sufficient to outweigh the
aggravating circumstances, the death penalty is no longer a sentencing
option. See Barlow v. State, 138 Nev., Adv. Op. 25, 507 P.3d 1185, 1199-00
(2022). Therefore, the district court did not err in denying this ineffective-
assistance-of-counsel claim without conducting an evidentiary hearing.8
Future dangerousness
Hall argues that trial counsel should have presented mitigation
evidence that he would make a positive adjustment to incarceration to rebut
the State's future dangerousness argument. Relying on a violence risk
assessment for prison, he contends that trial counsel should have
introduced evidence that he would behave well in prison and not be a
danger. Hall has not shown deficient performance or prejudice. Trial
counsel presented testimony from two fellow inmates about positive
interactions with Hall while in custody. Therefore, this ineffective-
8Hall also argues that erroneous weighing language in the unused
verdict form warrants relief. We disagree because Hall could have raised
this claim in prior proceedings, NRS 34.810(1)(b), and Hall has not shown
cause and prejudice to overcome the procedural bar. See Barlow, 138 Nev.,
Adv. Op. 25, 507 P.3d at 1192 n.4 (finding no error in the district court
giving a similar verdict form).
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assistance-of-counsel claim is belied by the record and the district court did
not err in denying it without conducting an evidentiary hearing. See
McNelton v. State, 115 Nev. 396, 410, 990 P.2d 1263, 1273 (1999) (providing
that the decision regarding what mitigation evidence to present is a tactical
one entrusted to defense counsel).
Challenges to the death penalty
Hall argues that trial and appellate counsel should have argued
that lethal injection constitutes cruel and unusual punishment. A challenge
to the method of execution cannot be raised in a postconviction petition for
a writ of habeas corpus because it does not challenge the validity of the
sentence. See McConnell, 125 Nev. at 249, 212 P.3d at 311. And Hall has
not shown deficient performance or prejudice given that this court has
repeatedly rejected similar challenges. See, e.g., Belcher v. State, 136 Nev.
261, 278, 464 P.3d 1013, 1031 (2020) (rejecting a claim that the death
penalty "violates the Eighth Amendment's prohibition against cruel and
unusual punishment"); Leonard v. State (Leonard II), 117 Nev. 53, 83, 17
P.3d 397, 416 (2001) (explaining that "R]his court has repeatedly upheld
Nevada's death penalty against similar challenges"). Therefore, the district
court did not err in denying this ineffective-assistance-of-counsel claim
without conducting an evidentiary hearing.
Cumulative error
Hall argues that the district court erred in denying his claim
that the cumulative effect of errors by trial and appellate counsel deprived
him of a fair trial. This court has never determined that multiple
deficiencies in counsels' performance may be considered cumulatively for
purposes of Strickland's prejudice prong. See McConnell, 125 Nev. at 259,
212 P.3d at 318 (applying without adopting the cumulative error standard).
Even assuming that counsel's deficiencies can be cumulated, we have found
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only one potential deficiency related to Hall's juvenile records and granted
appropriate relief (an evidentiary hearing), and therefore there is nothing
to cumulate.9
Actual innocence
Hall argues that he is actually innocent of the death penalty.
Even assuming that a free-standing claim of actual innocence is cognizable
in a postconviction habeas petition, see Berry v. State, 131 Nev. 957, 967 n.3,
363 P.3d 1148, 1154 n.3 (2015) (noting that "Mins court has yet to address
whether and, if so, when a free-standing actual innocence claim exists"),
Hall does not point to any new evidence or allege that either aggravating
circumstance is legally invalid. Accordingly, he has not demonstrated that
he is actually innocent of the death penalty. See Lisle v. State, 131 Nev.
356, 362, 351 P.3d 725, 730 (2015) (providing that to show actual innocence
of the death penalty, the petitioner must show that it is more likely than
not that no reasonable juror would have found the aggravating
circumstances based on new evidence or that the aggravating circumstances
are invalid as a matter of law). Therefore, the district court did not err in
denying this claim without conducting an evidentiary hearing.
Elected judges
Hall argues that the district court erred in denying his claim
that elected judicial officers are inherently biased. Hall did not substantiate
his contentions with portions of the record demonstrating bias against him
because the district judge and Supreme Court justices are popularly elected.
9To the extent Hall argues that the State failed to respond to some of
his arguments, we conclude the State adequately addressed Hall's
contentions. Cf. Belcher, 136 Nev. at 267, 464 P.3d at 1023 (discussing the
State's complete failure to respond or address an issue as a confession of
error).
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See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984)
(requiring petitioner to plead "specific factual allegations that would, if true,
have entitled him" to relief). And this court has rejected similar claims
where an appellant fails to establish actual judicial bias. See, e.g.,
McConnell, 125 Nev. at 256, 212 P.3d at 316 (rejecting the same claim where
appellant "failed to substantiate this claim with any specific factual
allegations demonstrating actual judicial bias"). Furthermore, a jury, not
judges, found Hall guilty of first-degree murder and sentenced him to death.
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Disqualification of the District Attorney's Office
Hall argues that the district court erred in denying his motion
to disqualify the Clark County District Attorney's Office.m Hall contends
that the prosecutors' improper use of his juvenile records created an
appearance of impropriety warranting disqualification. We disagree. This
court has retreated from the impropriety standard and concluded "that the
appropriate inquiry is whether the conflict would render it unlikely that the
defendant would receive a fair trial unless the entire prosecutor's office is
disqualified from prosecuting the case." State v. Eighth Judicial Dist. Court
(Zogheib), 130 Nev. 158, 165, 321 P.3d 882, 886 (2014). And the State
disagreeing with Hall's legal position on admission and use of his juvenile
records is insufficient to show the prosecuting office's participation in the
postconviction proceeding resulted in an unfair proceeding. Thus, the
mWe reject the State's argument that the denial of the motion to
disqualify is not properly raised in this appeal as it is a decision related to
the habeas proceedings. See NRS 177.045 (providing that intermediate
decisions of the district court may be raised in an appeal from a final
judgment).
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district court did not abuse its discretion in denying the motion to
disqualify. See id. at 161, 321 P.3d at 884 (reviewing a district court's
resolution of a motion to disqualify a prosecutor's office for an abuse of
discretion).
Having concluded that Hall is entitled only to the relief
described above, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order."
, C.J. J.
Parraguirre Hardesty
, J.
Stiglich Cadish
J.
Pickering Herndon
cc: Hon. Michelle Leavitt, District Judge
Karen A. Connolly, Ltd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
"This order constitutes our final disposition of this appeal. Any
subsequent appeal shall be docketed as a new matter.
The Honorable Abbi Silver having retired, this matter was decided by
a six-justice court.
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