a writ of habeas corpus, Walker argues that the district court erred in
denying his claims of ineffective assistance of counsel and trial error.
Ineffective assistance of counsel
Walker argues that the district court erred by denying
numerous claims of ineffective assistance of trial and appellate counsel
without conducting an evidentiary hearing. "A claim of ineffective
assistance of counsel presents a mixed question of law and fact, subject to
independent review," Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508
(2001), but the district court's purely factual findings are entitled to
deference, Lara v. State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004).
Under the two-part test established by the United States Supreme Court
in Strickland v. Washington, a defendant must show that (1) counsel's
performance fell below an objective standard of reasonableness and (2)
prejudice. 466 U.S. 668, 687-88, 694 (1984); Kirksey v. State, 112 Nev.
980, 987-88, 998, 923 P.2d 1102, 1107, 1114 (1996); see Riley v. State, 110
Nev. 638, 646, 878 P.2d 272, 278 (1994) ("The defendant carries the
affirmative burden of establishing prejudice."). A court need not consider
both prongs of the Strickland test if a defendant makes an insufficient
showing on either prong. Strickland, 466 U.S. at 697. An evidentiary
hearing is warranted only if a petitioner raises claims supported by
specific factual allegations that are not belied by the record and, if true,
would entitle him to relief. See Hargrove v. State, 100 Nev. 498, 502, 686
P.2d 222, 225 (1984).
Forensic video examiner
Walker argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to consult a forensic
video examiner to analyze the edited surveillance video introduced during
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the State's case-in-chief. We conclude that this argument lacks merit for
three reasons. First, Walker failed to demonstrate that his counsel's
performance was deficient as the record indicates that Walker's counsel
consulted an expert but elected not to call that witness to testify. This was
a tactical decision that is entrusted to counsel, see Rhyne v. State, 118 Nev.
1, 8, 38 P.3d 163, 167 (2002) (noting that "the trial lawyer alone is
entrusted with decisions regarding legal tactics such as deciding what
witnesses to call"), and Walker did not allege extraordinary circumstances
sufficient to challenge counsel's decision, see Ford v. State, 105 Nev. 850,
853, 784 P.2d 951, 953 (1989) ("Tactical decisions are virtually
unchallengeable absent extraordinary circumstances."). Second, Walker
failed to demonstrate prejudice. The video evidence, which showed
Walker attacking Anziano and meeting Cole, was not the only evidence
connecting him to the crimes. Witnesses observed Walker at the scene of
the murder and fleeing from it. Anziano's property was recovered from
the home he shared with Archie. Cole and Deborah Lazar identified
Walker and Archie as the perpetrators, Cole's blood was found on Walker's
shoe and Archie's car, and Cole's fingerprint was recovered from the
interior of Archie's car. As to the Simon robbery, Simon identified Walker
as the man who stole her purse and her property was recovered from
Archie's home. Third, Walker failed to plead sufficient facts to warrant
relief. Walker asserted in his petition below that he sought an expert who
could "explain to the jury all the ways in which video can be augmented,"
to demonstrate that the video evidence presented was unreliable.
However, he did not explain how the expert testimony would have
impugned the video in evidence. See Hargrove, 100 Nev. at 502, 686 P.2d
at 225. Therefore, the district court did not err in denying this claim.
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Identification expert
Walker argues that the district court erred in denying his
claim that his counsel were ineffective for failing to call an identification
expert at trial. We disagree. Walker asserted in his petition that expert
testimony would have shown that eyewitness accounts may be affected by
the extreme stress of traumatic events. However, Walker failed to
demonstrate prejudice. As discussed above, the eyewitness accounts were
corroborated by physical evidence. Video evidence showed the attack on
Anziano and corroborated Cole's testimony. Moreover, Simon, Cole, and
Lazar observed and interacted with Walker prior to the time he engaged
in criminal action against them; thus, their identifications were less likely
to be affected by the emotional concerns Walker asserts were attendant to
their identifications. Therefore, the district court did not err in denying
this claim.
Unrecorded bench conferences
Walker contends that the district court erred in denying his
claim that counsel were ineffective for failing to preserve objections during
trial and ensure the recording of bench conferences. We conclude that this
argument lacks merit. Walker has not identified any issue that he was
unable to argue due to the failure to record a portion of the proceeding.
See Archanian v. State, 122 Nev. 1019, 1033, 145 P.3d 1008, 1019 (2006)
(requiring appellant to "show that the subject matter of the omitted
portions of the record [were] so significant that this court cannot
meaningfully review his claims of error and the prejudicial effect of any
error"). Therefore, the district court did not err by denying this claim.
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DNA expert
Walker argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to call a DNA expert to
testify at his trial. We conclude that this argument lacks merit for three
reasons. First, Walker failed to demonstrate that his counsel's
performance was deficient as the record indicates that counsel retained an
expert to evaluate the DNA evidence. The decision not to call the witness
at trial was within counsels' discretion, see Rhyne, 118 Nev. at 8, 38 P.3d
at 167, and Walker did not allege extraordinary circumstances sufficient
to challenge counsels' decision, see Ford, 105 Nev. at 853, 784 P.2d at 953
("Tactical decisions are virtually unchallengeable absent extraordinary
circumstances."). Second, Walker failed to demonstrate that but for
counsel's failure to procure this expert testimony, he would not have been
convicted. Cole and Lazar identified him as the perpetrator. Cole's
testimony was corroborated by video evidence showing Walker meeting
Cole and Cole's fingerprint in Archie's car. Third, Walker failed to plead
sufficient facts to warrant an evidentiary hearing. In his petition, Walker
generally asserted that a DNA expert was necessary to "contradict,
challenge, put into context or to provide alternative explanations for the
damaging DNA evidence presented by the State." However, Walker did
not identify the expert who would have offered that testimony or allege
how that testimony would have specifically challenged the evidence at
trial. See Hargrove, 100 Nev. at 502, 686 P.2d at 225. Therefore, the
district court did not err in denying this claim.
Fingerprint expert
Walker contends that the district court erred in denying his
claim that trial counsel were ineffective for failing to call a fingerprint
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analysis expert. We conclude that this argument lacks merit. Walker
asserted that an expert witness could have challenged testimony about the
fingerprint or offered an alternative explanation for the presence of Cole's
fingerprint in Archie's car. However, he did not identify the expert or
allege how the testimony would specifically impugn the evidence at trial.
See Hargrove, 100 Nev. at 502, 686 P.2d at 225. Even assuming Walker
pleaded sufficient facts to substantiate this claim, he did not demonstrate
prejudice in light of the remaining evidence of his guilt. Therefore, the
district court did not err in denying this claim.
Brady violations
Walker argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to object to the State's
failure to provide discovery. In his petition below, Walker asserted that
the State failed to provide video evidence in a timely manner, original
versions of video evidence, audio of Walker's statement to police in 1978,
documents related to the laboratory used for DNA testing, and a copy of
the victim's social security card introduced during the victim's mother's
testimony. Walker's claim does not allege how any of the evidence he
claims the State failed to produce is favorable to his defense. See Mazzan
v. Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000) (noting obligation
under Brady v. Maryland, 373 U.S. 83 (1963), to reveal evidence that is
favorable to the defense). Accordingly, he has not satisfied the first
component of the Brady analysis. Moreover, considering the
overwhelming nature of the evidence against him, he failed to
demonstrate that he was prejudiced by counsel's failure to object to the
discovery process. Therefore, the district court did not err in denying this
claim.
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Prosecutorial misconduct
Walker contends that the district court erred in denying his
claim that trial counsel were ineffective for failing to object to instances of
prosecutorial misconduct. Under the Strickland test, Walker has the
burden of establishing that counsel were deficient in failing to object to the
prosecutor's allegedly improper comments and prejudice as a result of
counsel's failure to object or argue issues of prosecutorial misconduct on
appeal. See Riley, 110 Nev. at 646, 878 P.2d at 278. To show prejudice
based on counsel's failure to object, Walker must demonstrate that it is
reasonably probable that, but for counsel's error, the result of the trial
would have been different. Strickland, 466 U.S. at 694. "[A] criminal
conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone," Hernandez v. State, 118 Nev. 513, 525, 50 P.3d
1100, 1108 (2002) (quoting United States v. Young, 470 U.S. 1, 11 (1985)),
therefore Walker must demonstrate that the challenged comments "so
infected the proceedings with unfairness as to make the results a denial of
due process," id. Prosecutorial misconduct may be harmless where there
is overwhelming evidence of guilt. King v. State, 116 Nev. 349, 356, 998
P.2d 1172, 1176 (2000). We conclude that the claims lack merit for the
reasons discussed below.
First, Walker asserts that the State improperly disparaged
defense counsel by characterizing the defense's questioning of the medical
examiner as "a second victimization of Christine Anziano." As Walker's
counsel objected to this statement and appellate counsel raised the issue
on appeal, he cannot demonstrate that counsel's performance was
deficient. Further, Walker cannot demonstrate he was prejudiced, as this
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court concluded that the comment did not warrant relief under the
harmless-error standard See Walker, Docket No. 49507, at 9.
Second, Walker asserts that the State improperly appealed to
the passions of the jurors by beseeching the jury to end Anziano's
victimization and the victimization of the other victims, police, and
witnesses." We disagree. The prosecutor commented on defense counsel's
cross-examination of the medical examiner respecting the presence of old
bruises on Anziano's body (suggesting Anziano might have been a victim
of domestic abuse), the poor condition of her teeth (she had a denture in
her upper mouth), the presence of methamphetamine in her body, whether
the needle marks were definitely caused by medical intervention, and
whether cysts on her kidneys were a result of high blood pressure. The
prosecutor reasoned that the defense suggested that "[m]aybe the victim if
she'd moved a little faster wouldn't be dead. Maybe Christine, if she'd
moved a little slower, if she hadn't resisted, if she'd been a little nicer she
wouldn't be dead." Considering this context, we conclude that the
comment was not improper. The prosecutor merely responded to the
defense's apparent attempt to deflect attention away from Walker to
'During its rebuttal, the State made the following argument:
Christine Anziano is entitled to the protections of
the law and the time for victimization of Christine is
over now. We've heard the evidence, it's time for justice,
it's time for truth. So let's stop the victimization of not
only her but the other victims in this case, and even the
police and of some other witnesses to a certain extent
and let's talk about the truth.
This court considered the comment in Walker's direct appeal and
concluded that it did not rise to the level of plain error. See Walker,
Docket No. 49507, at 9.
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Anziano's character and social circumstance and argued that Walker, not
Anziano, was solely responsible for her death. Therefore, counsel had no
basis to object to the comment. 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."). To the extent that the
prosecutor's comments may be considered improper, we conclude that
Walker failed to demonstrate prejudice given the overwhelming evidence
of his guilt. See Strickland, 466 U.S. at 687-88.
Third, Walker contends that the State committed
prosecutorial misconduct by referring to him as a coward and predator, as
well as implying that he lacked intelligence. We conclude that Walker
failed to demonstrate that his counsel's performance was deficient as the
challenged statements constituted fair comment on the evidence. Given
the compelling evidence against Walker, including his presence on video
surveillance tapes and eyewitness identification of him, it was reasonable
to infer that he would be caught. The prosecutor's statements regarding
Anziano's murder and how the attack on Cole unfolded were supported by
the evidence. Further, the evidence showed Walker met all of his victims
while loitering near store entrances or in parking lots. To the extent that
identifying Walker as not very smart, cowardly, or a predator may be
considered disparaging, he failed to demonstrate he was prejudiced by
counsel's failure to object as there was overwhelming evidence of his guilt.
See Strickland, 466 U.S. at 687-88.
Fourth, Walker asserts that the State committed prosecutorial
misconduct by playing audio of his statement to police even though the
court had ruled that it could not be played to the jury. We conclude that
Walker failed to demonstrate that his counsels performance was deficient.
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During the penalty hearing, the State prepared to play the audio from
Walker's statement to police regarding his 1978 robbery and attempted
murder. Defense counsel objected on the basis that the State had
represented that the audio on the recording was of such poor quality that
it could not be understood nor could a transcript be generated. The court
listened to both recordings outside the presence of the jury. It recognized
that the copy the State intended to play was more clearly audible than the
defense copy but concluded both were intelligible. It ruled that the State
could play the copy given to the defense at trial. Therefore, Walker's trial
counsel succeeded in litigating their objection in the trial court and held
the State to introduce only the evidence that it previously provided the
defense during the discovery process. Moreover, Walker failed to
demonstrate prejudice as the State had already introduced testimony
about the statement he provided to police. Therefore, the district court did
not err in denying this claim.
Failure to object to inadmissible evidence
Walker argues that the district court erred in denying his
claim that his trial counsel were ineffective for failing to object to the
introduction of certain evidence. We conclude that this contention lacks
merit for the reasons discussed below.
First, Walker asserts that the State introduced bad act
evidence in the form of testimony that 17 purses were discovered in the
search of Archie's residence and that his hand bore older injuries that
appeared to be received during a stabbing. Given the context of the trial
and that Walker was accused of stealing purses from two of the victims as
well as stabbing two of the victims, the presence of a number of purses and
older knife wounds on his hand suggests more extensive criminal activity.
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See NRS 48.045(2) ("Evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show that the
person acted in conformity therewith."). Therefore, counsel should have
objected to the statement about the purses and provided more sufficient
legal argument to support the objection to the testimony about the older
wounds. However, Walker fails to demonstrate prejudice considering the
brief nature of the testimony, the fact that the prosecutor did not draw
further attention to this testimony during trial, and the overwhelming
evidence of his guilt.
Second, Walker asserts that the State introduced evidence
that was more prejudicial than probative. He asserts that (1) the evidence
about his prior record was convoluted and confusing; (2) Doris Stempien's
testimony during the penalty hearing about Walker's battery of her was
inconsistent with the police reports that the State read into evidence,
which had not been turned over during discovery in violation of Brady;
and (3) the district court should not have permitted the introduction of
pictures of Anziano's children at her funeral. We conclude that Walker
failed to demonstrate that counsel's performance was deficient for failing
to object to this evidence. Evidence concerning Walker's prior crimes was
relevant to the sentencing determination. See Browning v. State, 124 Nev.
517, 526, 188 P.3d 60, 67 (2008) ("The focus of a capital penalty hearing is
not the defendant's guilt, but rather his character, record, and the
circumstances of the offense."). It was presented through an officer from
the parole and probation department and was not confusing. While
Stempien's testimony was inconsistent with the police reports, that fact
went to the weight of the evidence, not its admissibility. See Page v. State,
88 Nev. 188, 193, 495 P.2d 356, 359 (1972) (holding that any discrepancy
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in witness's identification testimony went only to weight and not
admissibility). And, this court has already evaluated the victim impact
evidence and concluded that no improper victim impact evidence was
admitted at the penalty hearing. Walker, Docket No. 49507, at 10.
Walker further failed to demonstrate prejudice. Five of the six
aggravating circumstances proven by the State related to convictions
involving the use of or threat of violence. The convictions spanned much
of Walker's life from his 1978 conviction for robbery and attempted
murder with the use of a deadly weapon, to battery by a prisoner with the
use of a deadly weapon, and culminating with the instant offenses. The
aggravating circumstances are compelling in that they demonstrate
Walker's long held adherence to violence to accomplish his criminal goals.
Moreover, they show that his behavior was not controlled or reformed by
his time in prison. In view of these circumstances, he did not demonstrate
that the result of the penalty hearing would have been different had he
been able to exclude Stempien's testimony. Therefore, the district court
did not err in denying this claim.
Failure to present mitigating evidence
Walker argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to introduce credible
mitigating evidence. He asserts that (1) counsel should have ensured that
the defense experts kept records and generated reports to bolster their
testimony; (2) Dr. Pohl's testimony about alcohol abuse and intoxication
was not as compelling as it could have been had Dr. Pohl been able to
testify as to whether Walker was intoxicated at the time of the offense; (3)
the lay witnesses were not adequately prepared for their testimony as it
was inconsistent regarding key issues; (4) counsel imprudently fixated on
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a drug addiction theory of mitigation that could not be substantiated at
trial; and (5) counsel should have presented more recent evidence showing
the effect of Walker's early childhood poverty, later drug addiction, and
how neurological impairments affected his later life.
We conclude that these arguments lack merit for two reasons.
First, Walker failed to substantiate his claim that counsel's performance
was deficient for failing to put forth the asserted evidence. He did not
include any statements from experts or witnesses demonstrating that
those experts or witnesses could have provided the evidence he asserts
they were capable of producing. He did not allege that he was intoxicated
at the time of the crimes to substantiate the claim that Dr. Pohl could
have testified about that fact. He alleged that the experts who testified at
trial could have generated reports so that the district court could properly
assess the impact of better substantiated expert testimony; he did not,
however, submit those reports or allege specific facts about the reports
necessary to warrant further inquiry. He further failed to identify how
the lay witnesses' testimony was contradictory. In addition, Walker did
not identify the more recent mitigation evidence he contends that his
counsel should have presented or identify an expert or the specific
testimony that would have linked the early life mitigation evidence with
him at the time of the crime.
Second, Walker failed to demonstrate that the result of the
penalty hearing would have been different had trial counsel presented the
purported evidence. The jury found the presence of six aggravating
circumstances. Five of the aggravating circumstances involved Walker's
prior crimes of violence: two robberies with the use of a deadly weapon,
two attempted murders with the use of a deadly weapon, and one battery
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by a prisoner with the use of a deadly weapon. The aggravating
circumstances were compelling. Walker's criminal history demonstrated
that he was prone to violent crimes and continued committing acts of
violence even while incarcerated. Further, his most recent violent crimes
occurred within one day of the murder. The fact that the jury failed to
find the presence of mitigating factors does not mean that trial counsel
failed to present credible evidence of those factors but instead suggests
that he failed to present mitigating circumstances compelling enough to
mitigate Anziano's murder. Therefore, he did not demonstrate that even if
the presented testimony was better substantiated, the result of the
hearing would have been different.
Failure to challenge false testimony
Walker argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to address testimony
during the penalty hearing about parole and sentencing credits, that he
contends, suggested he might be released if not sentenced to death. We
disagree. The testimony about the sentencing scheme under which
Walker was sentenced for his prior armed robbery did not indicate that he
could be released early if the jury did not sentence him to death.
Moreover, the jury was properly instructed that Walker would not be
eligible for parole if sentenced to life without the possibility of parole or
would serve at least 40 years if sentenced to life with the possibility of
parole or given a definite term of 100 years. Therefore, the district court
did not err in denying this claim. 2
2 Walker also argues that the district court erred in denying his
claim that the prosecutor knowingly introduced false testimony. This
claim could have been raised in Walker's direct appeal and he failed to
continued on next page...
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Cumulative error
Walker argues that the cumulative effect of his trial counsel's
errors deprived him of a fair trial. We disagree. This court has never
determined whether multiple deficiencies in counsels' performance can be
considered cumulatively for purposes of the prejudice prong of Strickland
v. Washington, 466 U.S. 668 (1984), and in particular, when the individual
deficiencies did not result in prejudice. See McConnell v. State, 125 Nev.
243, 259 n.17, 212 P.3d 307, 318 n.17 (2009). However, even assuming
that counsel's deficiencies may be cumulated, see Harris by and through
Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (concluding that
prejudice may result from cumulative effect of multiple counsel
deficiencies); StateS v. Thiel, 665 N.W.2d 305, 322 (Wis. 2003) (concluding
that multiple incidents of deficient performance may be aggregated in
determining prejudice under Strickland), because we have only found one
error, for which we determined Walker failed to demonstrate prejudice,
there is nothing to cumulate. Therefore, the district court did not err by
denying this claim.
...continued
assert cause for the failure to do so, other than the previously discussed
claim of ineffective assistance of counsel, or actual prejudice. See NRS
34.810(1)(b). Therefore, the district court did not err in denying this
claim.
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Direct appeal claims
Walker contends that the district court erred in denying his
claims that the trial court erred in excluding evidence of his intoxication
and that the State committed prosecutorial misconduct during its penalty
phase arguments. These claims could have been raised in the appeal
taken from Walker's judgment of conviction and he failed to assert cause
for the failure to do so. See NRS 34.810(1)(b). Therefore, the district court
did not err in denying this claim. 3
Having considered Walker's contentions and concluding that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
J.
Pickering Hardesty
J. 3 J.
Parraguirre Douglas
3 Walker's brief tacks on an ineffective-assistance argument in the
heading of the prosecutorial misconduct claim and neglects to further
develop this issue. Accordingly, he failed to raise a sufficient argument for
consideration of this claim. See Evans v. State, 117 Nev. 609, 647, 28 P.3d
498, 523 (2001).
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CHERRY, J., dissenting:
I respectfully dissent. I would reverse the district court's
decision and remand for an evidentiary hearing on several of Walker's
claims. Specifically, I conclude that the district court erred in denying
Walker's claims that counsel failed to introduce expert testimony and that
counsel were ineffective in challenging the admission of uncharged bad act
evidence.
Failure to call expert witnesses
In his petition, Walker alleged that his counsel were
ineffective for failing to introduce testimony of a forensic video examiner,
an eyewitness identification expert, a DNA analysis expert, and an expert
on fingerprint analysis. He alleged that these experts could explain how
video evidence could be manipulated; testify about the accuracy and
reliability of eyewitness identifications resulting from witnessing a
traumatic event; contradict, challenge, or offer alternative explanations for
the presence of the victim's DNA on Walker's shoe's and Myrdus Archie's
car; and contradict or offer other explanations for the presence of the
victim's fingerprint in Archie's car.
The district court denied Walker's claim and the majority
affirms the denial of most of these claims partially on the basis that
Walker failed to plead sufficient facts to warrant relief or otherwise
substantiate his claims. I contend that the majority decision holds
Walker's pleading to an unreasonable standard. An evidentiary hearing is
warranted where a petitioner raises claims supported by specific factual
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allegations that are not belied by the record and, if true, would entitle him
to relief. See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225
(1984); see also NRS 34.780(1) (stating that the Nevada Rules of Civil
Procedure apply to proceedings for post-conviction petitions for a writ of
habeas corpus to the extent they are not inconsistent with NRS Chapter
34); Hay v. Hay, 100 Nev. 196, 198, 678 P.2d 672, 674 (1984) (noting a
complaint need only set forth sufficient facts to establish all necessary
elements of a claim for relief). Courts must liberally construe pleadings to
place issues into matters which are fairly noticed to the adverse party.
Hay, 100 Nev. at 198, 678 P.2d at 674.
Walker's pleading provided the State adequate notice that he
intended to demonstrate that the evidence introduced against him at trial
could be impeached by the introduction of expert testimony. Walker's only
obligation with the filing of his petition was to allege that he could prove
those facts. He was not required to prove his claims with his petition. See
NRS 34.370(4) (noting that "supporting documents are unnecessary" to a
post-conviction petition). The district court denied him an opportunity to
substantiate his claims when it denied his petition without conducting an
evidentiary hearing
I further conclude that the majority's analysis of these claims
incorrectly concluded that Walker failed to demonstrate prejudice. The
majority decision addresses each claim regarding an expert that Walker
asserts his trial counsel failed to produce at trial. In concluding that
Walker failed to demonstrate prejudice from that failure to introduce each
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expert, the majority decision points to the remaining evidence introduced
against Walker. However, Walker had contended that much of the
remaining evidence, including that relied upon by the majority in
affirming each claim, should have also been challenged via expert
testimony. The majority fails to recognize the interconnected nature of his
claims and appreciate the need for an evidentiary hearing to fully evaluate
the holistic effect of counsel's failures to investigate or introduce expert
testimony. Accordingly, I would reverse the judgment of the district court
and remand for an evidentiary hearing on these claims.
Prior bad act testimony
Walker argues that the district court erred in denying his
claim that trial counsel was ineffective for failing to object and litigate
objections to prior bad act evidence. The majority agrees that the evidence
was improperly admitted at trial and that counsel were deficient in failing
to properly challenge this evidence. However, the majority concludes that
Walker failed to demonstrate prejudice considering the brevity of the
comment and evidence of his guilt. I disagree with this holding for two
reasons.
First, I disagree with the premise that the terseness of the
comments mitigated their impact. It is unquestioned that evidence of
Walker's uncharged conduct is not admissible to prove his propensity to
engage in criminal activity. NRS 48.045(2); see Ledbetter v. State, 122
Nev. 252, 259, 129 P.3d 671, 677 (2006) ("A presumption of inadmissibility
attaches to all prior bad act evidence." (quoting Rosky v. State, 121 Nev.
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'EAti
4
1.1„
184, 195, 111 P.3d 690, 697 (2005))). Such evidence may be admissible for
other purposes, but its admission would be closely guarded. See Quails v.
State, 114 Nev. 900, 902, 961 P.2d 765, 766 (1998) (recognizing court must
consider three-step process prior to admitting evidence of prior bad acts);
see also Rhymes v. State, 121 Nev. 17, 23, 107 P.3d 1278, 1282 (2005)
(requiring use of limiting instruction). These prohibitions and precautions
are necessary because of the enormous potential that evidence, which
generally portrays the accused as a criminal, has to unfairly sway the jury
to believe he acted similarly with regard to the charged crimes. The
evidence becomes more prejudicial where, instead of generally
characterizing the accused as a criminal, it specifically implicates him in
similar crimes to the charged conduct. See United States v. Shapiro, 565
F.2d 479, 481 (7th Cir. 1977) ("When the prior conviction and the charged
act are of a similar nature . . [t]he jury is more likely to . . . regard the
prior convictions as evidence of a propensity to commit crime or of
guilt . . ."). Walker was charged with murdering one victim while
stealing her purse, slashing one victim while conducting a robbery, and
stealing the purse of a third victim. The prior bad act evidence, that
Archie's residence had an inordinate number of purses and his hand bore
older wounds suggesting the use of a knife as a weapon, did not just
portray Walker as a criminal, but strongly insinuated that he had a habit
of committing the type of knifepoint robberies for which he was on trial.
Thus, despite the short time it was discussed, the evidence admitted in
this case could have been unfairly prejudicial.
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Second, I conclude that the majority improperly relies on the
remaining evidence of his guilt in concluding that he failed to demonstrate
prejudice. As previously discussed, Walker asserted that much of the
evidence introduced against him was susceptible to impeachment through
expert testimony. Therefore, I conclude that the majority is incorrect to
rely on this evidence, which Walker was denied the opportunity to
challenge in an evidentiary hearing, in concluding that Walker failed to
demonstrate prejudice. If anything, these errors should be seen as
working in tandem to deny Walker a fair trial. Accordingly, I would
reverse and remand for an evidentiary hearing on this claim.
Cherry
cc: Hon. Valerie Adair, District Judge
Justice Law Center
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
21
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