"that counsel should be 'strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment." Cullen v. Pinholster, 563 U.S. „ 131 S. Ct.
1388, 1403 (2011) (quoting Strickland, 466 U.S. at 690). Further, the
presumption is that the actions of counsel reflect trial tactics rather than
sheer neglect. Harrington v. Richter, 562 U.S. „ 131 S. Ct. 770, 790
(2011). 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 claims that trial counsel was ineffective for
advising appellant to testify, which allowed his prior convictions and his
journal to be admitted at trial Appellant fails to demonstrate that trial
counsel was deficient or that he was prejudiced. Appellant was informed
at trial that it was his decision to testify. At the evidentiary hearing, trial
counsel testified that he and appellant had numerous discussions about
whether appellant should testify and that trial counsel did not push him
either way. Further, appellant's testimony was the only way to inform the
jury that appellant was afraid for the lives of his wife and child, which
could have attacked the integrity of his confession. Moreover, appellant
fails to demonstrate that there was a reasonable probability of a different
outcome at trial had he not testified We note that there was
overwhelming evidence of appellant's guilt without the introduction of his
prior convictions and the journal. Therefore, the district court did not err
in denying this claim.
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Second, appellant claims that trial counsel was ineffective for
mentioning his prior conviction for first-degree murder during his opening
statement. Appellant fails to demonstrate that trial counsel was deficient
or that he was prejudiced. Appellant was canvassed by the district court
prior to counsel giving his opening statement as to whether appellant
approved of his trial counsel's decision to inform the jury that he had
previously been convicted of murder. Appellant told the district court that
he approved. Further, appellant fails to demonstrate that there was a
reasonable probability of a different outcome at trial had counsel not
informed the jury of appellant's prior convictions given the overwhelming
evidence of appellant's guilt. Therefore, the district court did not err in
denying this claim.
Third, appellant claims that trial counsel was ineffective for
failing to request a limiting instruction prior to the introduction of his
journal, which referenced other bad acts. Appellant fails to demonstrate
that he was prejudiced. While a limiting instruction was not given at the
time the evidence was introduced, a limiting instruction was given to the
jury at the close of evidence. Further, appellant fails to demonstrate that
there was a reasonable probability of a different outcome at trial had
counsel requested a limiting instruction prior to the admission of the other
bad acts given the overwhelming evidence of appellant's guilt. Therefore,
the district court did not err in denying this claim.
Fourth, appellant claims that trial counsel was ineffective for
conceding appellant's guilt during voir dire and closing arguments.
Appellant fails to demonstrate that trial counsel was deficient or that he
was prejudiced because the record reveals that trial counsel did not
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concede appellant's guilt during voir dire or closing arguments. Therefore,
the district court did not err in denying this claim.
Fifth, appellant claims that trial counsel should have
requested an instruction on "use" liability for the deadly weapon
enhancement where it is a co-conspirator who used the weapon and not
the defendant. Appellant fails to demonstrate that he was prejudiced.
Appellant fails to demonstrate a reasonable probability of a different
outcome at trial had trial counsel requested an instruction on "use"
liability because of the overwhelming evidence at trial that appellant was
the one who shot the victim. Therefore, the district court did not err in
denying this claim.
Sixth, appellant claims that trial counsel should have objected
to instruction 21, which related to co-conspirator liability, because it did
not clearly set forth specific intent. Specifically, appellant claims that the
jurors may have concluded that if they thought appellant intended to
commit the crime of extortionate collection of a debt, they could find him
guilty of murder without finding that he had the specific intent to commit
murder. Appellant fails to demonstrate that trial counsel was deficient or
that he was prejudiced. Jury instruction 21 correctly sets forth the law for
co-conspirator liability, Bolden v. State, 121 Nev. 908, 922, 124 P.3d 191,
200-01 (2005) overruled on other grounds by Cortinas v. State, 124 Nev.
1013, 1021, 195 P.3d 315, 320 (2008), and counsel is not deficient for
failing to make futile objections. Donovan v. State, 94 Nev. 671, 675, 584
P.2d 708, 711 (1978). Further, appellant fails to demonstrate a reasonable
probability of a different outcome at trial had trial counsel objected.
Appellant was found guilty of conspiracy to commit murder which means
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that the jury necessarily found that he intended to commit murder. 1
Therefore, the district court did not err in denying this claim.
Seventh, appellant claims that trial counsel was ineffective for
failing to object to the State's argument in closing regarding second-degree
felony murder. Further, he claimed that trial counsel should have
objected to the State's argument that "if Smokey did it and there's
evidence that [appellant] conspired with Smokey, he's guilty." 2 First,
although it appears that the State made an argument regarding second-
degree felony murder, appellant fails to demonstrateS a reasonable
probability of a different outcome at trial had counsel objected because the
jury found appellant guilty of first-degree murder. Second, the statement
relating to Smokey was a correct statement of the law regarding
conspiracy because appellant is liable for the murder if appellant
conspired with Smokey to commit the murder even if Smokey carried out
the murder. Bolden, 121 Nev. at 922, 124 P.3d at 200-01. Therefore, the
district court did not err in denying this claim.
Eighth, appellant claims that trial counsel was ineffective for
failing to object to the State's argument during closing that appellant was
no longer entitled to the presumption of innocence. Appellant fails to
demonstrate that trial counsel was deficient or that he was prejudiced.
This claim is belied by the record. Trial counsel did object and the district
1 We note that appellant was not charged with conspiracy to
extortionately collect a debt.
2 Smokey is Jerry Salas, appellant's co-conspirator. Hereinafter he
will be referred to as Smokey.
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court asked that the State rephrase. Further, appellant fails to
demonstrate a reasonable probability of a different outcome at trial had
trial counsel made further argument regarding the objection given the
overwhelming evidence of appellant's guilt. Therefore, the district court
did not err in denying this claim.
Ninth, appellant claims that trial counsel was ineffective for
failing to object to the State's improper argument during closing.
Specifically, appellant claims that the State improperly invoked God when
it used the phrase "God only knows." Further, appellant claims that the
State told the jury that being blindfolded "is the only way you would be
able to follow the story that the defendant told you," which mocked his
defense. Appellant failed to demonstrate that trial counsel was deficient
or that he was prejudiced. As to the "God only knows" comments,
appellant fails to demonstrate that this was improper and trial counsel
should have objected because it was used as a turn of phrase and was not
invoking God. See Epps v. State, 901 F.2d 1481, 1483 (8th Cir. 1990)
(explaining that prosecutor's comments that were not objectionable could
not be a basis for an ineffective-assistance claim based on counsel's failure
to object). Further, appellant fails to demonstrate that there was a
reasonable probability of a different outcome at trial had trial counsel
objected to either of the statements. Therefore, the district court did not
err in denying this claim.
Tenth, appellant claims that trial counsel was ineffective for
failing to investigate and fully raise a Miranda issue. Miranda v. Arizona,
384 U.S. 436 (1966). Specifically, appellant claims that when he was first
approached by Las Vegas Metropolitan Police Department officers he
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refused to speak to them and requested an attorney. Appellant fails to
demonstrate that trial counsel was deficient or that he was prejudiced.
Trial counsel did argue a motion to suppress the confession based on a
Miranda violation and appellant fails to demonstrate that further
investigation or argument would have changed the outcome of the hearing
on the motion. Appellant's invocation after the Las Vegas Metro Police
Department officers spoke to him was scrupulously honored; later he was
again fully informed of his Miranda rights, and he told the police he was
willing to talk to them. See Dewey v. State, 123 Nev. 483, 490-91, 169 P.3d
1149, 1153-54 (2007). Further, the district court determined that
appellant was not credible when he claimed that he told the police officers
that he wanted an attorney. Therefore, the district court did not err in
denying this claim.
Eleventh, appellant claims that trial counsel was ineffective
for failing to present expert and lay testimony regarding the reliability of
appellant's statements to the police. Appellant fails to demonstrate that
trial counsel was deficient or that he was prejudiced. Trial counsel
attempted to present an expert on false confessions, but the district court
did not allow it because the testimony that appellant may have falsely
confessed to protect his family was not an area of scientific inquiry. This
court affirmed that decision on appeal. Holden v. State, Docket No. 47698
(Order of Affirmance, October 17, 2007). Appellant argues that had trial
counsel actually had the expert speak with appellant and view the
videotape of his confession, the expert would have been allowed to testify.
Trial counsel testified at the evidentiary hearing that he did not have the
expert review the confession videotape or interview appellant because he
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was afraid her conclusion would be that appellant did not falsely confess
and he wanted her to only testify in general about false confessions. This
was a reasonable trial strategy and the district court did not err in
denying this claim.
Twelfth, appellant claims that trial counsel was ineffective for
failing to present an expert witness regarding the effects of
methamphetamine use and how that may have affected the voluntariness
of appellant's confession. Appellant fails to demonstrate that counsel was
deficient or that he was prejudiced. Appellant had an evidentiary hearing
but failed to produce an expert regarding methamphetamine use and how
that may have affected his confession. Therefore, because appellant failed
to carry his burden to demonstrate ineffective assistance, the district court
did not err in denying this claim.
Thirteenth, appellant claims that trial counsel was ineffective
for failing to present other available evidence that showed a reasonable
basis for appellant's fear. Specifically, appellant claims that trial counsel
could have presented evidence that appellant was married and had a
child, that one of the State's witnesses was afraid of Smokey, and that
there were inconsistencies between appellant's version and the witness'
version of events. Appellant fails to demonstrate that trial counsel was
deficient or that he was prejudiced. Appellant fails to explain how
evidence that appellant was married and had a child could have been
admitted absent appellant's testimony. Further, trial counsel did inquire
of the witness as to whether she was afraid of Smokey and trial counsel
highlighted some of the inconsistencies between appellant's version and
the witness' version of events during cross-examination and closing
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arguments. Moreover, appellant fails to demonstrate a reasonable
probability of a different outcome at trial had trial counsel further pointed
out that the witness was afraid of Smokey or if trial counsel pointed out
more inconsistencies given the overwhelming evidence of appellant's guilt.
Therefore, the district court did not err in denying this claim.
Next, appellant claims that the district court erred in denying
his claims of ineffective assistance of appellate counsel. 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 a reasonable probability of success on 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. 668, 697. Appellate
counsel is not required to raise every non-frivolous issue on appeal. Jones
v. Barnes, 463 U.S. 745, 751 (1983). Rather, appellate counsel will be
most effective when every conceivable issue is not raised on appeal Ford
v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989). We give deference to
the district court's factual findings if supported by substantial evidence
and not clearly erroneous but review the district 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 claims that appellate counsel was ineffective
for failing to argue that the district court erred by admitting the journal at
trial because it was more prejudicial than probative. Appellant failed to
demonstrate that this claim had a reasonable probability of success on
appeal. The journal included admissions that appellant committed the
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crime and contradicted statements that appellant made while on the
stand. While it did inculpate appellant in the crimes, it was not unfairly
prejudicial. See NRS 48.035(1) (providing that relevant evidence is
inadmissible if "its probative value is substantially outweighed by the
danger of unfair prejudice" (emphasis added)); State v. Eighth Judicial
Dist. Court, 127 Nev. „ 267 P.3d 777, 781 (2011) (explaining that
"unfair" prejudice refers to a decision based on an improper basis, such as
emotion or bias). Further, some of the more inflammatory passages were
not admitted at trial. Therefore, the district court did not err in denying
this claim.
Second, appellant claims that appellate counsel was
ineffective for failing to argue that the State's closing argument was
improper. Appellant fails to demonstrate that this claim had a reasonable
probability of success on appeal. As discussed previously, the State's
arguments were not improper, and therefore, would not have been
reversible error. Thus, the district court did not err in denying this claim.
Third, appellant claims that appellate counsel was ineffective
for failing to argue that Amy Hatzenpillar's testimony that Smokey stated
"they took care of what they had to take care of," was inadmissible
hearsay. Appellant fails to demonstrate that this claim had a reasonable
probability of success on appeal. The statement was admitted, over the
objection of trial counsel, on the grounds that it was an adoptive
admission. Because appellant was in the room when the statement was
made and it was a statement that it would be expected that appellant
would dissent from, the statement was properly admitted at trial as an
adoptive admission. Maginnis v. State, 93 Nev. 173, 175, 561 P.2d 922,
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923 (1977); NRS 51.035(3)(b). Therefore, the district court did not err in
denying this claim.
Fourth, appellant claims that appellate counsel was ineffective
for failing to argue that appellant's confession should have been
suppressed because of a Miranda violation. Appellant fails to demonstrate
that this claim had a reasonable probability of success on appeal. As
discussed previously, there was no Miranda violation and the district
court concluded that appellant was not credible. Therefore, the district
court did not err in denying this claim.
Finally, appellant claims that the cumulative errors of trial
and appellant counsel entitle him to relief. Appellant fails to demonstrate
that any alleged errors by counsel, singly or cumulatively, would have had
a reasonable probability of altering the outcome at trial or on appeal.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
.A&A Stet, ,
J.
Hardesty
J.
Douglas
J.
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cc: Hon. Carolyn Ellsworth, District Judge
Karen A. Connolly, Ltd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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Holden (Jim) v. State
Combined Opinion