Emerson (Kenneth) v. State ( 2013 )

 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, and the petitioner
must demonstrate the underlying facts by a preponderance of the
evidence, Means v. State, 120 Nev. 1001, 1012, 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, appellant claimed that trial counsel was ineffective
during the preliminary hearing because counsel failed to present a
defense, failed to object to the State's version of the facts, and admitted
that there was sufficient evidence as to two of the charges. Appellant
failed to demonstrate that counsel's performance was deficient or that he
was prejudiced. Counsel made objections and tested the State's case by
cross-examining the witnesses about the charges. Appellant failed to
identify other objections that counsel should have made or how further
objections or actions by counsel would have changed the outcome of the
proceedings. See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225
(1984) (holding that no relief is warranted where petitioner raises 'bare'
or 'naked' claims for relief, unsupported by any specific factual allegations
that would, if true, have entitled him to withdrawal of his plea"). While
counsel did concede that there was probable cause as to the charges of
battery of an officer and assault of an officer, appellant failed to
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demonstrate that he was prejudiced. The district court dismissed the
battery-of-an-officer charge, and the testimony of two police officers
regarding appellant's resistance during arrest provided probable cause to
bind him over on the assault-of-an-officer charge. See Sheriff v. Hodes, 96
Nev. 184, 186, 606 P.2d 178, 180 (1980) (citations omitted) (holding that
probable cause to support a criminal charge "may be based on slight, even
'marginal' evidence"). Therefore, the district court did not err in denying
this claim.
Second, appellant claimed that trial counsel was ineffective for
filing a pretrial petition for a writ of habeas corpus because it forced
appellant to forfeit his right to a speedy trial. Appellant failed to
demonstrate that counsel's performance was deficient or that he was
prejudiced. Appellant initially asserted his right to a speedy trial, but
after discussing the issue with the district court, he agreed to waive his
right to a speedy trial so that counsel could challenge the charges in a
pretrial petition for a writ of habeas corpus. In light of appellant's
voluntary waiver, appellant failed to demonstrate that counsel acted
unreasonably in filing a pretrial habeas petition. Furthermore, appellant
did not demonstrate a reasonable probability of a different outcome at
trial had counsel not filed a pretrial habeas petition. Accordingly, the
district court did not err in denying this claim.
Third, appellant claimed that trial counsel was ineffective for
failing to obtain surveillance video from the stairwell of the motel where
the battery took place and from a hotel near the area where he was
arrested. Appellant failed to demonstrate that counsel's performance was
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deficient or that he was prejudiced. His assertions as to what an
investigation would have uncovered are speculative and conclusory with
no factual support. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225.
Therefore, the district court did not err in denying this claim.
Fourth, appellant claimed that trial counsel was ineffective for
failing to interview (1) T. Purifoy to determine if she actually consented to
a search of her motel room where appellant's identification was obtained;
(2) appellant's girlfriend, who would have impeached the victim and
testified that appellant acted in self-defense as to the assault charge; and
(3) the victim, which would have helped counsel determine how to
question him at trial. Appellant failed to demonstrate that counsel's
performance was deficient or that he was prejudiced. Trial counsel
testified during the evidentiary hearing that he attempted, but was
unable, to contact T. Purifoy before trial. Thus, appellant failed to
demonstrate that counsel's performance was deficient. Furthermore,
appellant failed to demonstrate prejudice, as there is no support in the
record for his speculative assertion that T. Purifoy might not have
consented to the search of her motel room. Counsel also testified that he
did not learn that appellant's girlfriend was a percipient witness until
trial, at which point he unsuccessfully attempted to endorse her as a
witness. Because appellant did not inform counsel before trial that his
girlfriend was a witness and wished to testify, counsel was not deficient
for failing to interview her. As to his claim regarding the victim, appellant
failed to explain how a pretrial interview of the victim would have had a
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reasonable probability of changing the outcome of the trial. Thus, the
district court did not err in denying this claim.
Fifth, appellant claimed that trial counsel was ineffective for
failing to allow appellant to have an active role in his defense and for
failing to file a motion to withdraw as counsel. Appellant failed to allege
specific facts that would entitle him relief and thus failed to demonstrate
deficiency or prejudice. See id. at 502, 686 P.2d at 225. Therefore, the
district court did not err in denying this claim.
Sixth, appellant claimed that trial counsel was ineffective for
failing to sever the charges of attempted murder and battery with
substantial bodily harm from the charge of assault on an officer.
Appellant failed to demonstrate that his trial counsel's performance was
deficient or that he was prejudiced. The offenses were properly joined
because the assault, which occurred while officers were arresting
appellant for attempted murder and battery of the victim, was relevant to
prove appellant's identity in the attempted murder and battery offenses,
and evidence of the attempted murder and battery was relevant to explain
appellant's conduct during his arrest. Thus, evidence of the offenses was
cross-admissible to prove appellant's identity as the attacker and his
consciousness of guilt when he attempted to flee from the police. See
Weber v. State, 121 Nev. 554, 573, 119 P.3d 107, 120 (2005) (holding that
offenses are "connected together" and thus properly joined if evidence of
either offense is cross-admissible to prove the other offense). Accordingly,
any motion to sever the charges would have been unsuccessful, and
counsel cannot be ineffective for failing to file a futile motion. See
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Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978). Therefore,
the district court did not err in denying this claim.
Seventh, appellant claimed that trial counsel was ineffective
for failing to object to the State's numerous leading questions during the
victim's testimony. Appellant failed to demonstrate that objections by
counsel would have had a reasonable probability of changing the outcome
of the trial, particularly given that the battery of the victim was captured
on video and the victim and the motel manager, both of whom were
familiar with appellant, identified appellant as the attacker. Therefore,
the district court did not err in denying this claim.
Eighth, appellant claimed that trial counsel was ineffective for
failing to object to the police officer's hearsay testimony that T. Purifoy
told him that the man who knocked on her door and was captured on
surveillance video had left some personal belongings in her motel room. In
light of the overwhelming evidence of guilt, appellant failed to
demonstrate that he was prejudiced. As discussed above, the battery was
captured on videotape and appellant was identified as the attacker by two
witnesses who knew him. Therefore, appellant did not demonstrate a
reasonable probability that the outcome of the proceedings would have
been different had counsel objected to the officer's testimony. Accordingly,
the district court did not err in denying this claim.
Ninth, appellant claimed that trial counsel was ineffective for
failing to object to the display of a prior booking photograph, which
revealed to the jury that he had criminal history. Appellant failed to
demonstrate prejudice. At trial, an officer testified that, once he
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discovered appellant's identification at the motel, he entered appellant's
information in "Crime Web" and obtained a photograph of appellant,
which he then compared to the attacker in the video. It appears that this
testimony and photograph were improper references to appellant's prior
criminal activity, see Manning v. Warden, 99 Nev. 82, 86-87, 659 P.2d 847,
850 (1983), and counsel should have objected. Nevertheless, we conclude
that the references were not prejudicial given the overwhelming evidence
of appellant's guilt. Therefore, the district court did not err in denying
this claim.
Tenth, appellant claimed that trial counsel was ineffective for
failing to object to the video evidence for lack of authentication. Appellant
failed to demonstrate prejudice, as he has failed to support his claim with
specific facts. See Hargrove, 100 Nev. at 502, 686 P.2d at 225. Neither the
record nor appellant's factual allegations indicate any issues with the
authenticity of the video. Therefore, appellant failed to demonstrate a
reasonable probability that, had counsel objected to the authentication of
the video, the outcome of the trial would have been different. Accordingly,
the district court did not err in denying this claim.
Eleventh, appellant claimed that trial counsel was ineffective
for conceding appellant's guilt during closing arguments. Appellant failed
to demonstrate that counsel's performance was deficient or that he was
prejudiced. During closing arguments, counsel contested the charge of
attempted murder and did not challenge the identification of appellant or
the other charges. Subsequently, counsel informed the court that his
decision not to contest the identification of the attacker was a strategic
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decision, and appellant affirmed that he agreed with the decision. Thus,
the record repels appellant's claim. Furthermore, at trial, the jury
watched a videotape depicting the charged battery, the motel manager
identified appellant on the video, and the victim identified appellant as
the attacker. Thus, in light of this evidence, it was not unreasonable for
counsel to avoid arguing that appellant was not the attacker and instead
argue that appellant did not have the requisite intent to commit murder.
In addition, because of the overwhelming evidence that appellant was the
attacker, appellant failed to demonstrate a reasonable probability that the
outcome of the trial would have been different had counsel challenged the
identification of the attacker. Therefore, the district court did not err in
denying this claim.
Twelfth, appellant claimed that trial counsel was ineffective
for conceding that appellant had prior felony convictions without sufficient
proof submitted by the State. Specifically, appellant asserted that counsel
should have objected to the use of a conviction from California to
adjudicate him a habitual criminal because the State presented only court
minutes of that conviction and not a certified judgment of conviction.
Appellant failed to demonstrate that counsel's performance was deficient
or that he was prejudiced. This court previously rejected appellant's
underlying argument on appeal from the denial of a motion to correct an
illegal sentence, and concluded that the State sufficiently proved
appellant's prior felony convictions at the time of sentencing. See Emerson
v. State, Docket Nos. 53623, 54609 (Order of Affirmance, May 7, 2010).
Thus, appellant failed to demonstrate that an objection by counsel had a
reasonable probability of changing the outcome of the sentencing hearing.
Appellant also claimed that counsel failed to inform him that the State
had filed notice of intent to seek habitual criminal treatment, but
appellant did not provide any explanation as to how he was prejudiced.
See Hargrove, 100 Nev. at 502, 686 P.2d at 225. Accordingly, the district
court did not err in denying these claims.
Next, appellant claimed that appellate counsel was ineffective
for failing to raise on direct appeal the abovementioned claims of
ineffective assistance of trial counsel. Appellant failed to demonstrate
that appellate counsel's performance was deficient or that he was
prejudiced. See Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114
(1996). Claims of ineffective assistance of trial counsel should be raised in
a post-conviction petition for a writ of habeas corpus rather than on direct
appeal. Rippo v. State, 122 Nev. 1086, 1095, 146 P.3d 279, 285 (2006).
Furthermore, as discussed above, appellant failed to demonstrate
ineffective assistance of trial counsel, and thus cannot show that he was
prejudiced by appellate counsel's failure to raise those claims on direct
appeal. Therefore, the district court did not err in denying this claim.
Finally, appellant claimed that (1) the district court violated
his due process rights by adjudicating him a habitual criminal; (2) he is
actually innocent of being a habitual criminal because the State failed to
present proper documentation of his prior convictions; (3) his Fourth
Amendment right was violated; and (4) the district court violated his due
process rights by denying his motion to correct and/or modify an illegal
sentence. These claims were raised and rejected on direct appeal or on
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appeal from the denial of appellant's motion to correct an illegal sentence.
See Emerson v. State, Docket Nos. 53623, 54609 (Order of Affirmance, May
7, 2010). Therefore, further litigation of these claims is barred by the
doctrine of the law of the case, see Hall v. State, 91 Nev. 314, 316, 535 P.2d
797, 799 (1975), and the district court did not err in denying these claims.
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 2
J.
Cherry
cc: Hon. David B. Barker, District Judge
Kenneth Leslie Emerson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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