IN THE SUPREME COURT OF THE STATE OF NEVADA
RICHARD CANAPE, No. 62843
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
MAY 1 9 2016
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
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; Elissa F. Cadish, Judge.
In 1988, appellant Richard Canape robbed and killed Manuel
Toledo. After a jury trial, he was convicted of first-degree murder with use
of a deadly weapon and robbery with use of a deadly weapon. The State
sought the death penalty and alleged four aggravating circumstances: (1)
Canape had previously been convicted of a crime involving violence, (2) he
committed the murder to avoid arrest, (3) he committed the murder
during the course of a robbery, and (4) the murder showed depravity of
mind. The jury found all four aggravating circumstances and that there
were no mitigating circumstances sufficient to outweighS them and
imposed a death sentence. This court affirmed the judgment and sentence
on appeal. Cat-tape v. State, 109 Nev. 864, 883, 859 P.2d 1023, 1035
(1993). Canape then filed a postconviction petition for a writ of habeas
corpus. While the petition was pending, Canape underwent several
psychological evaluations. The district court conducted evidentiary
hearings, where the experts who conducted the evaluations and trial
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counsel testified. The district court denied the petition. This appeal
followed.
Canape contends that the district court erred by denying his
petition, which included claims of ineffective assistance of counsel.' To
prove ineffective 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 Strickland); Kirksey v. State, 112 Nev. 980, 998,
923 P.2d 1102, 1114 (1996) (applying Strickland to appellate counsel). 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).
'Several of Canape's claims are either inappropriately presented to
this court in the first instance, see Davis v. State, 107 Nev. 600, 606, 817
P.2d 1169, 1173 (1991), overruled on other grounds by Means v. State, 120
Nev. 1001, 103 P.3d 25 (2004), were abandoned below, or are procedurally
barred because they could have been raised on direct appeal, see NRS
34.810(1)(b). For these reasons, we decline to consider Canape's claims
that (1) the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), (2)
the trial court erred by denying counsel's motion to withdraw, (3) the trial
court erred by failing to instruct the jury regarding "other matter"
evidence, (4) counsel was ineffective for failing to ensure that the jury was
instructed to find that the aggravating circumstances outweighed the
mitigating circumstances beyond a reasonable doubt, (5) the "previously
convicted of a crime of violence" aggravator is invalid, and (6) he is
incompetent to be executed because he is "mentally retarded."
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Guilt phase
First, Canape contends that the district court erred by denying
his claim that counsel was ineffective for conceding his guilt at trial. We
disagree because counsel did not concede Canape's guilt; he conceded that
someone murdered and robbed Toledo but argued that Canape was not
that person. Counsels argument was reasonable given the evidence.
Therefore, we conclude that the district court did not err by denying this
claim.
Second, Canape contends that the district court erred by
denying his claim that counsel was ineffective for failing to object to
prosecutorial misconduct at trial and failing to challenge misconduct on
appea1. 2 We disagree. Counsel testified at the evidentiary hearing that he
made a strategic decision not to object to the prosecutor's statements at
trial and the district court determined that counsel was credible. Counsel
testified that he raised other instances of misconduct on appeal because he
did not feel that the alleged misconduct pointed out by Canape was worth
challenging. These decisions were reasonable under the circumstances.
See Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989) (explaining
that appellate counsel will be most effective when every conceivable issue
is not raised on appeal). Moreover, Canape fails to demonstrate prejudice.
See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008).
2 Canape
asserts that this court should consider the misconduct he
challenges in his opening brief alongside "remarks objected to in [his]
original petition for a writ of habeas corpus." We decline to consider any
misconduct other than that specifically raised in his opening brief.
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Therefore, we conclude that the district court did not err by denying this
claim. 3
Third, Canape contends that counsel was ineffective for failing
to investigate and present evidence challenging the hair and twine
evidence presented by the State through expert testimony. We disagree.
Counsel testified that he did not believe a defense expert in these areas
was warranted because the State's expert was only able to say that
Canape's hair and the twine found in his car were consistent with
evidence found at the scene. Canape has presented no evidence which
suggests that the hair and twine were dissimilar and has not
demonstrated that counsel's assessment of the evidence was unreasonable.
Therefore, we conclude that the district court did not err by denying this
claim.
Fourth, Canape contends that the district court erred by
denying his claim that counsel was ineffective for failing to object to the
first-degree murder instruction given at trial, commonly known as the
Kazalyn instruction. 4 We disagree because the Kazalyn instruction was
appropriately given at the time of Canape's trial. See Nika v. State, 124
3 The
transcripts from the penalty phase are incomplete. Because of
this, Canape contends that he is not adequately able to address the
prosecutor's misconduct. On direct appeal, this court considered whether
the lack of transcripts deprived Canape of due process or otherwise
prejudiced him Because the parties complied with NRAP 10(c), this court
held that no relief was warranted. See Canape, 109 Nev. at 871, 859 P.2d
at 1027. This holding constitutes the law of the case. See Hsu v. Cnty. of
Clark, 123 Nev. 625, 629-30, 173 P.3d 724, 728 (2007).
4Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992).
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Nev. 1272, 1289, 198 P.3d 839, 851 (2008). 5 Therefore, we conclude that
the district court did not err by denying this claim.
Penalty phase
Canape contends that the district court erred by denying his
claim that counsel was ineffective regarding the penalty phase of his trial.
Because we conclude that counsel was ineffective, we remand this matter
for the district court to grant the petition in part and order a new penalty
hearing.°
Counsel's performance during the penalty phase of Canape's
trial was concerning. Counsel presented no evidence on Canape's behalf
and did not identify a single mitigating circumstance. Counsel began his
argument by apologizing for being absent when the guilty verdicts were
announced, explained that he was not fully prepared to argue, then
reminded jurors that they did not haue to execute Canape—but they could
5 The Ninth Circuit recently discussed this court's Kazalyn
jurisprudence in Riley v. McDaniel, 786 F.3d 719, 724 (9th Cir. 2015).
While we do not agree with Riley, see Nika, 124 Nev. at 1280-87, 198 P.3d
at 845-48 (discussing the history of Nevada law on the phrase "willful,
deliberate, and premeditated," including Hem v. State, 97 Nev. 529, 635
P.2d 280 (1981), and explaining that prior to Byford v. State, 116 Nev. 215,
994 P.2d 700 (2000), this court had not required separate definitions of the
terms and had instead viewed them as together conveying a meaning that
was sufficiently described by the definition of "premeditation" eventually
approved in Kazalyn and Powell v. State, 108 Nev. 700, 838 P.2d 921
(1992)), we note that, given the verdict and the aggravating circumstances
found, the jury would have necessarily concluded that the murder was
willful, deliberate, and premeditated, or was committed in the course of a
felony.
°We need not address Canape's other claims regarding the penalty
hearing.
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if they wanted to. When counsel was questioned about his performance at
the evidentiary hearing, he explained that, at the time of Canape's trial,
he was chief of the capital team at the Clark County Public Defender's
Office and was "overwhelmed" with capital cases. Because counsel was
the only attorney on the case and had no investigator, he had to
investigate by himself while simultaneously investigating and trying his
other cases. According to counsel, his entire mitigation investigation
consisted of making phone calls to "a couple of people in Hawaii" who did
not answer, as well as at least one person "back east" who did answer but
was not helpful. Counsel also thought he "might have" sent some letters.
Counsel explained that his investigation was limited to these actions
because he relied on Canape to provide him with leads and Canape was
unwilling or unable to provide more helpful information given his unstable
background and lack of normal social contacts. The district court
concluded that counsel's performance was reasonable given Canape's
inability or unwillingness to aid in his own defense.
We conclude that counsel's performance in preparing for and
throughout the penalty phase was deficient. See Doe v. Ayers, 782 F.3d
425, 435 (9th Cir. 2015) ("Death is different. So too are the lengths to
which defense counsel must go in investigating a capital case." (internal
alterations and citations omitted)). At the time of Canape's trial, it was
"unquestioned" that "counsel had an 'obligation to conduct a thorough
investigation of the defendant's background." Porter v. McCollum, 558
U.S. 30, 39 (2009) (referencing professional norms in 1988) (quoting
Williams v. Taylor, 529 U.S. 362, 396 (2000) (emphasis added)); Bobby v.
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Van Hook, 558 U.S. 4, 7 (2009) (acknowledging professional norms in
1980). 7 Counsel's explanation that this meager investigation was the best
he could do given Canape's reticence falls flat. We recognize that Canape
was a "poor historian." And it is true that "[c]ounsel's actions are usually
based, quite properly, on . . . information supplied by the defendant."
Strickland, 466 U.S. at 691. But the mere fact that a client is "fatalistic or
uncooperative does not obviate the need for defense counsel to conduct
some sort of mitigation investigation," Porter, 558 U.S. at 40. Canape's
failure, for whatever reason, to provide counsel with more helpful
information did not relieve counsel of his responsibility to conduct a
thorough investigation, see Ayers, 782 F.3d at 435 ("[Al lawyer has not
fulfilled his duties to his client if he ceases investigating because his client
has not been forthcoming about his background."); Rompilla v. Beard, 545
U.S. 374, 381 (2005) (holding that counsel failed to conduct an effective
mitigation investigation even though the defendant was "uninterested" in
helping and "was even actively obstructive by sending counsel off on false
leads"), it simply meant that counsel had to utilize other sources, see
Porter, 558 U.S. at 40; Johnson v. Bagley, 544 F.3d 592, 603 (6th Cir.
7 Counsel'sfailure to utilize an investigator under the circumstances
was inconsistent with prevailing professional norms around the time of his
performance. See, e.g., National Legal Aid and Defender Association:
Standards for the Performance of Counsel in Death Penalty Cases,
adopted December 1, 1987; American Bar Association: Guidelines for the
Appointment and Performance of Counsel in Death Penalty cases, adopted
1989 ("An attorney leading a mitigation investigation should conduct
interviews in the presence of a third person who will be available, if
necessary, to testify as a defense witness at trial. Alternatively, counsel
should have an investigator or mitigation specialist conduct the
interviews.").
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2008) ("Uncooperative defendants . . . do not shield a mitigation
investigation . . . if the attorneys unreasonably failed to utilize other
available sources."). And the record demonstrates that counsel was aware
of and had access to other sources of information about Canape which he
failed to adequately develop. See Wiggins v. Smith, 539 U.S. 510, 524
(2003) (holding that counsel's investigation was unreasonable when he
failed to follow up on potential mitigation information in his possession). 8
The little information about Canape that counsel admittedly possessed—
that he came from a disruptive background, dropped out of school and left
his family at an early age, and lacked meaningful social contacts—went
unmentioned at the penalty phase, and counsel did not clearly articulate
any reasons why Canape was not worthy of death. 9 We conclude that
counsel's performance fell below an objective standard of reasonableness.
We also conclude that counsel's deficient performance
prejudiced Canape. See Strickland, 466 U.S. at 694 CA reasonable
probability is a probability sufficient to undermine confidence in the
outcome."); Silva v. Woodford, 279 F.3d 825, 847 (9th Cir. 2002)
(explaining that "we must be especially cautious in protecting a
8 Forexample, counsel testified that he possessed some of Canape's
prior records and presentence investigation reports which contained more
information than he had learned from "months" of talking to Canape.
9 Given counsel's failure to adequately investigate, his decisions
regarding which strategy to pursue during the penalty phase are not
entitled to deference. See Ayers, 782 F.3d at 444 ("[D]efense counsel failed
to make a reasonable investigation into potential mitigating evidence.
Therefore, his decision not to put on a mitigation case cannot be
considered to be the product of a strategic choice.").
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defendant's right to effective counsel at a capital sentencing hearing").
"Because a sentencing jury is given broad latitude to consider amorphous
human factors, in effect, to weigh the worth of one's life against his
culpability, . . the presentation of relevant mitigation evidence is of vital
importance to the jury's penalty determination." Frierson u. Woodford, 463
F.3d 982, 993 (9th Cir. 2006) (emphasis added and internal quotation
marks omitted); see also Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir.
2000) (explaining that the presentation of mitigation evidence plays an
"overwhelming" role in the just imposition of the death penalty, as it
"affords an opportunity to humanize and explain—to individualize a
defendant outside the constraints of the normal rules of evidence"). Here,
the jury heard a great deal about the crime and the reasons why Canape
was worthy of death, but nothing about his troubled past or any other
evidence which might have humanized or individualized him. As a result,
the jury was given nothing to meaningfully aid it in its task of accurately
evaluating Canape's death worthiness. Importantly, the State's case in
aggravation was not strong, 1 ° and the murder, while reprehensible, does
not qualify as "the worst of the worst." See Burnside v. State, 131 Nev.,
Adv. Op. 40, 352 P.3d 627, 653 (2015) (Cherry, J., dissenting). Counsel's
failure to develop and present a mitigation case coupled with his
unfocused argument that, in our view, only reinforced the State's
1 °TheState concedes that the "committed during the course of a
robbery" and depravity-of-mind aggravating circumstances are no longer
valid. Because we conclude that Canape is entitled to a new penalty
hearing on other grounds, we need not address whether he is entitled to a
new penalty hearing pursuant to McConnell v. State, 120 Nev. 1043, 102
P.3d 606 (2004).
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argument that Canape was worthy of death, renders the result of the
penalty hearing fundamentally unreliable. See Riley v. State, 110 Nev.
638, 648, 878 P.2d 272, 279 (1994) ("Prejudice in an ineffective assistance
of counsel claim is shown when the reliability of the jury's verdict is in
doubt"); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (recognizing that a
reviewing court must consider "whether counsel's deficient performance
renders the result of the trial unreliable or the proceeding fundamentally
unfair"). Therefore, 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.
-fp
Parraguirre
Aiseta
Hardesty
Saitta
Gibbons Pickering
cc: Hon. Elissa F. Cadish, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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