IN THE SUPREME COURT OF THE STATE OF NEVADA
TRAVERS ARTHUR GREENE, No. 55971
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
JUN 2 4 2016
TRACE K LINDEMAN
CLERK OF UPRENIE COURT
BY SDEPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal from an order denying appellant Travers
Arthur Greene's postconviction petition for a writ of habeas corpus.
Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Greene was convicted of conspiracy to commit murder, two
counts of first-degree murder with the use of a deadly weapon, and
possession of a stolen vehicle for travelling to Sunrise Mountain in a
stolen car and shooting two campers, Christopher Peyton and Deborah
Farris, in September 1994. He was sentenced to death. This court
affirmed his convictions and sentence. Greene v. State, 113 Nev. 157, 931
P.2d 54 (1997). Greene unsuccessfully sought postconviction relief in a
prior petition. See Greene v. State, Docket No. 45023 (Order of Affirmance,
November 14, 2006). Greene filed the instant petition in the district court
on February 28, 2008. The district court denied the petition This appeal
followed.
Procedural bars
Greene's postconviction petition for a writ of habeas corpus is
subject to several procedural bars. The petition was untimely as it was
filed more than one year after this court issued its remittitur on direct
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appeal. NRS 34.726(1). 1 To the extent that the petition raised the same
claims that were raised in prior petitions, it was successive. NRS
34.810(2). To the ektent that the petition raised new claims that could
have been litigated in a prior proceeding, it constituted an abuse of the
writ. NRS 34.810(1)(b). The petition was therefore procedurally barred
absent a demonstration of good cause and prejudice. NRS 34.726(1); NRS
34.810(1)(b), (3). As cause to overcome the procedural default rules,
Greene contends that the State withheld evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and that prior postconviction counsel
provided ineffective assistance.
Brady violation
Greene argues that the district court erred in concluding that
he failed to demonstrate good cause and prejudice based on his claim that
the State withheld inducements offered to Anthony Fisher in exchange for
his testimony. See State v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003)
("Good cause and prejudice parallel the second and third Brady
components; in other words, proving that the State withheld the evidence
generally establishes cause, and proving that the withheld evidence was
material establishes prejudice."). We disagree. While the State had
knowledge of its meetings with Fisher, it was not the exclusive repository
of that information. See Rippo v. State, 113 Nev. 1239, 1257, 946 P.2d
1017, 1028 (1997) (noting that "a Brady violation does not result if the
defendant, exercising reasonable diligence, could have obtained the
information"). The record indicates that Fisher, his mother, and his
'The petition was also filed more than one year after the effective
date of NRS 34.726. See 1991 Nev. Stat., ch. 44, § 33, at 92; see also
Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001).
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girlfriend were present during the visits when Greene alleges that the
attorneys offered favorable treatment in exchange for Fisher's testimony.
Greene did not allege that an impediment external to the defense
prevented him from contacting these witnesses sooner. Moreover, he
failed to demonstrate that the additional impeachment evidence was
material for two reasons. See Jimenez v. State, 112 Nev. 610, 619, 918
P.2d 687, 692 (1996) (noting that when there is a specific request for
evidence, materiality is satisfied if there is a reasonable possibility that
the omitted evidence would have affected the outcome of trial). First, he
did not demonstrate that the State offered Fisher an inducement to
testify. At the evidentiary hearing, Fisher denied having any expectation
of receiving favorable treatment from the State in exchange for his
testimony. The district court found this testimony credible While this
testimony contradicted his prior declaration, the district court was in the
best position to assess Fisher's credibility and that determination is
entitled to deference so long as it is supported by substantial evidence.
See Little v. Warden, 117 Nev. 845, 854, 34 P.3d 540, 546 (2001). Second,
even if Greene demonstrated the existence of an inducement, this
additional impeachment evidence would not have altered the outcome at
trial. Greene's admission to Fisher that he killed the victims was
persuasive, but not indispensable, evidence. Witnesses saw Greene steal
the murder weapon and hide it and one witness saw Greene murder the
victims. In addition, Greene admitted involvement in the killings to two
other witnesses. Therefore, the district court did not err in denying this
claim. 2
2 Greene also argues that the district court erred in limiting
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Ineffective assistance of postconviction counsel
Greene contends that the district court erred in denying his
claims that postconviction counsel was ineffective for failing to challenge
trial counsel's failure to investigate and present mitigation evidence and
challenge evidence introduced by the State during sentencing. The
ineffective assistance of postconviction counsel may establish cause and
prejudice to file a second postconviction petition where, as here, the
appointment of counsel was mandated by statute. See Rippo v. State, 132
Nev., Adv. Op. 11, at 9, P.3d , (2016); Crump v. Warden, 113
Nev. 293, 304-05, 934 P.2d 247, 254 (1997). Although his postconviction-
counsel claims are subject to the time limit set forth in NRS 34.726(1),
State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 235, 112 P.3d
1070, 1077 (2005), and they therefore had to be raised within a reasonable
time after they became available, Hathaway v. State, 119 Nev. 248, 252-
53, 71 P.3d 503, 506 (2003), Greene's claims of ineffective assistance of
postconviction counsel were not available until this court affirmed the
district court order denying his first postconviction petition. Rippo, 132
Nev., Adv. Op. 11, P.3d. at . Because the petition was filed within
one year of the issuance of remittitur from this court's decision affirming
the denial of Greene's first postconviction petition, we conclude that his
...continued
discovery and denying his request to call additional witnesses at the
evidentiary hearing. As he failed to demonstrate that this evidence was
material, the district court did not abuse its discretion in denying Greene's
request to call further witnesses related to this claim. See generally
Mitchell v. State, 124 Nev. 807, 813-16, 192 P.3d 721, 725-27 (2008)
(recognizing that court's actions pursuant to its inherent authority are
reviewed for abuse of discretion).
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petition asserting postconviction counsel claims as good cause for filing a
second petition was filed within a reasonable time. Id.
Greene must demonstrate that his postconviction counsel's
performance was deficient for failing to raise the underlying claims of
ineffective assistance of trial counsel in his prior petition, and that
prejudice resulted. See Rippo, 132 Nev., Adv. Op. 11, at 20-22, P.3d at
(adopting Strickland analysis for ineffective assistance of
postconviction counsel claims); see also Crump, 113 Nev. at 304-05, 934
P.2d at 254. Both deficiency and prejudice must be shown, Rippo, 132
Nev., Adv. Op. 11, at 20-22, P.3d at , 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, Greene contends that postconviction counsel was
ineffective for failing to assert that trial counsel should have obtained or
introduced mitigation evidence at trial that included his mental health
records, expert testimony regarding his mental state and drug intoxication
at the time of the offense, expert testimony regarding the criminogenic
effects of the California Youth Authority (CYA), testimony and records
concerning his prior molestation, testimony about physical abuse that
Greene suffered, and other sources concerning his drug intoxication. We
conclude that Greene failed to demonstrate that the additional evidence
would have altered the outcome of trial and thus form the basis of a
successful trial-counsel claim. The jury found two aggravating
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circumstances with regard to each murder: the murder was committed at
random and without apparent motive and Greene was convicted of more
than one count of first-degree murder at trial. These are compelling
aggravating circumstances. Greene killed two random strangers merely
because he wanted to experiment with a stolen firearm. The jury was also
aware that Greene began his criminal career as a teen and his behavior
escalated from petty to violent crimes. He was even involved in two
shootings in one night roughly two months before the murders.
The additional mitigation evidence is not powerful enough to
mitigate the instant crimes. The new evidence concerning Greene's sexual
abuse is potent; however, the jury was already aware that he had been
repeatedly molested and did not find that evidence mitigating. As the jury
did not find the evidence of his sexual abuse mitigating, it is not likely
that it would have found the new evidence of physical abuse more
persuasive. Greene's evidence of psychological conditions, impulse control
problems, and phencyclidine (PCP) abuse is rendered less compelling by
the fact that the crimes do not appear to be the product of a rash act.
Instead, after Greene and Leonard Winfrey discovered the victims' car,
Greene approached the victims quietly, shot Peyton while he slept, cleared
a jam in the assault rifle, and shot Farris as she pleaded for her life.
Notably, in his post-arrest statement, Greene denied that he was
intoxicated by PCP at the time of the crime. Therefore, the district court
did not err in concluding that postconviction counsel was not ineffective as
trial counsel's decision to not introduce this evidence could have been the
result of reasonable trial strategy.
Second, Greene contends that postconviction counsel was
ineffective for not asserting a claim that trial counsel should have objected
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to the introduction of his prior juvenile convictions during the penalty
phase of trial under Roper v. Simmons, 543 U.S. 551 (2005). We disagree.
Roper was not decided until after the district court denied Greene's first
petition. Therefore, Greene's counsel could not have litigated this claim
during the pendency of the first petition. Further, Greene failed to
demonstrate prejudice. Roper proscribed the imposition of the death
penalty on juvenile offenders, 543 U.S. at 568, but it did not speak to the
evidence admissible during a capital penalty hearing, Johnson v. State,
122 Nev. 1344, 1353, 148 P.3d 767, 774 (2006). 3
Law-of-the-case doctrine
Greene contends that the district court erred in denying his
claim regarding the premeditation-and-deliberation instruction as barred
by the law-of-the-case doctrine. "When an appellate court states a
principle or rule of law necessary to a decision, the principle or rule
becomes the law of the case and must be followed throughout its
subsequent progress, both in the lower court and upon subsequent
appeal." Wickliffe v. Sunrise Hospital, 104 Nev. 777, 780, 766 P.2d 1322,
1324 (1988). This court has the discretion to "revisit the wisdom of its
legal conclusions when it determines that further discussion is
warranted," Pellegrini ix State, 117 Nev. 860, 885, 34 P.3d 519, 535-36
3 We reject Greene's claim that the district court erred by denying his
claim of cumulative error, as that claim added several assertions of
ineffective assistance of trial counsel and trial error that should have been
raised on direct appeal or in his prior postconviction petition and he has
not demonstrated good cause or prejudice to overcome the procedural
default. To the extent that Greene's cumulative-error claim relies on
claims that supported a previous cumulative-error claim, further
consideration is barred by the law-of-the-case doctrine. See Hall V. State,
91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).
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(2001), and may 'depart from our prior holdings only where we determine
that they are so clearly erroneous that continued adherence to them would
work a manifest injustice,' Hsu v. County of Clark, 123 Nev. 625, 631, 173
P.3d 724, 729 (2007) (quoting Clem v. State, 119 Nev. 615, 620, 81 P.3d
521, 525 (2003)).
Greene argues that the Ninth Circuit Court of Appeals'
decision in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), provided a basis
for this court to revisit his challenge to the premeditation-and-deliberation
instruction (the Kazalyn 4 instruction). Greene contends that the
instruction was erroneous under Byford. We disagree. Greene's
conviction was final over two years before this court disapproved of the
Kazalyn instruction and set forth instructions to use in the future in
Byford, and therefore, Byford does not apply. See Nika v. State, 124 Nev.
1272, 1284-85, 198 P.3d 839, 847-49 (2008). Moreover, Byford did not
alter the law in effect when Greene's conviction became final; rather, it
changed the law prospectively. And because the change concerned a
matter of state law, the Byford decision did not implicate federal
constitutional concerns. See id. Therefore, Greene failed to demonstrate
that a continued adherence to the prior ruling would work a manifest
injustice in this case. 5
4Kazalynv. State, 108 Nev. 67, 825 P.2d 578 (1992), prospectively
modified by Byford v. State, 116 Nev. 215, 236-37, 994 P.2d 700, 714
(2000).
5 We reject Greene's claim that the district court erred in denying his
challenges concerning the at-random aggravating circumstance, the
administration of anti-psychotic medication during trial, the ineffective
assistance of appellate counsel, and cumulative error because he merely
reargues the merits of these claims and he has not pointed to any
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Fundamental miscarriage of justice
Greene contends that he is actually innocent of first-degree
murder due to trial counsel's failure to investigate and present evidence of
his mental impairments and drug intoxication at the time of the murders.
When a petitioner cannot demonstrate good cause, the district
court may nonetheless excuse a procedural bar if the petitioner
demonstrates that failure to consider the petition would result in a
fundamental miscarriage of justice. Pellegrini, 117 Nev. at 887, 34 P.3d at
537. A fundamental miscarriage of justice requires "a colorable showing"
that the petitioner is "actually innocent of the crime," id., meaning "factual
innocence, not mere legal insufficiency," Mitchell v. State, 122 Nev. 1269,
1273-74, 149 P.3d 33, 36 (2006) (internal quotation marks and alteration
omitted). This requires the petitioner to present new evidence of his
innocence. See House v. Bell, 547 U.S. 518, 537 (2006) ("[A] gateway claim
requires 'new reliable evidence—whether it be exculpatory scientific
evidence, trustworthiness eyewitness accounts, or critical physical
evidence—that was not presented at trial." (quoting Schlup v. Delo, 513
U.S. 298, 324 (1995))); Schlup, 513 U.S. at 316 ("Without any new
evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a miscarriage
of justice that would allow a habeas court to reach the merits of a barred
claim."). The petitioner "must show that it is more likely than not that no
reasonable juror would have convicted him absent a constitutional
...continued
authority since the denial of his prior petition that necessitates a
departure from this court's prior holdings. See Hsu, 123 Nev. at 630, 173
P.3d at 728-29; Pellegrini, 117 Nev. at 885, 34 P.3d at 535-36.
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violation." Pellegrini, 117 Nev. at 887, 34 P.3d at 537. In deciding
whether the petitioner has made that showing, the court must consider
the petitioner's claimed innocence in light of all the evidence—both the
new and the old. See Berry v. State, 131 Nev., Adv. Op. 96, 363 P.3d 1148,
1155-56 (2015).
We conclude that Greene failed to make a "colorable showing"
of actual innocence. The psychological evaluation indicated that Greene
was not able to regulate his impulsivity. In addition, as his particular
psychological issues rendered him more susceptible to adverse effects from
drug abuse, the evaluation concluded that the murders may have been the
result of delusional or hallucinatory experience from a combination of his
chronic methamphetamine abuse and PCP intoxication or the result of
impulsive violence associated with PCP usage. In contrast, the evidence
produced at trial strongly supports a conclusion that the murder was
premeditated and deliberate. After gaining possession of the assault rifle,
Greene wanted to shoot it. After shooting it, Greene wanted to know what
the bullets would do if they struck something. While out shooting, Greene
directed his friend to stop the car near the victims, walked over to the
sleeping victims, and shot Peyton as he slept. When he attempted to
murder Farris as she pleaded for her life, the firearm malfunctioned.
Greene had the presence of mind to clear the malfunction and shoot her.
Based on the total record, the district court did not err in concluding that
Greene failed to demonstrate that it was more likely than not that no
reasonable juror would have convicted him absent the failure to introduce
the new evidence.
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Full and fair opportunity to litigate
Greene contends that he did not have a full and fair
opportunity to litigate his postconviction petition because the district court
was biased against capital postconviction petitioners. He also asserts that
the district court improperly limited testimony and denied discovery.
Bias
Greene asserts that the district court erred in denying his
motions to disqualify the district court. He contends that the district
court's refusal to provide him with a full and fair opportunity to litigate
his claims, coupled with Judge Donald Mosley's pattern and practice of
denying other capital petitioners a full and fair opportunity to litigate
their claims, demonstrates the habeas court's bias against him.
We conclude that Greene's contention lacks merit. Many of
the cases that he has cited do not indicate that Judge Mosley "closed his [
mind to the presentation of all the evidence," Cameron v. State, 114 Nev.
1281, 1283, 968 P.2d 1169, 1171 (1998), but merely show that Judge
Mosley attempted to implement procedures for the efficient consideration
of postconviction petitions. While Judge Mosley was disqualified from
another case out of an abundance of caution, Greene has not cited any
language used during his current litigation that shows that Judge Mosley
closed his mind to the presentation of the evidence or otherwise "reveal[ed]
such a high degree of favoritism or antagonism as to make fair judgment
impossible." Liteky v. United States, 510 U.S. 540, 555 (1994). Judge
Mosley's comments in the present litigation evidence a desire to limit the
issues to be presented at subsequent evidentiary hearings. See In re
Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 769 P.2d 1271, 1275
(1988) (noting that the "rulings and actions of a judge during the course of
official judicial proceedings do not establish legally cognizable grounds for
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disqualification," but "personal bias necessary to disqualify must 'stem
from an extrajudicial source and result in an opinion on the merits on
some basis other than what the judge learned from his participation in the
case." (quoting United States v. Beneke, 449 F.2d 1259, 1260-61 (8th Cir.
1971))). Therefore, the district court did not err in denying the motions to
disqualify.
Denial of full and fair opportunity to litigate
Greene contends that Judge Mosley denied him a fair
opportunity to litigate his postconviction petition by improperly
preventing him from calling witnesses or developing evidence. 6
First, Greene contends that the district court improperly
limited the testimony of his postconviction counsel by directing the
examination, cutting the examination short, and refusing requests to
admit a declaration from postconviction counsel and testimony from trial
counsel. We discern no abuse of discretion in limiting his presentation of
evidence. See generally Mitchell v. State, 124 Nev. 807, 813-16, 192 P.3d
721, 725-27 (2008) (recognizing that a court's actions pursuant to its
inherent authority, are reviewed for abuse of discretion); Young v. District
Court, 107 Nev. 642, 646, 818 P.2d 844, 846 (1991) (recognizing a court's
inherent power "to control proceedings before it"). By having current
counsel ask prior counsel collectively whether she had any strategic
reason for failing to discover and present evidence during the first habeas
proceeding, the district court acted reasonably to avoid a lengthy
6 To the extent Greene claims that district court denied him a full
and fair opportunity to litigate his first postconviction proceeding, that
claim is procedurally barred as it should have been litigated in the appeal
taken from the denial of his first petition. NRS 34.810(1)(b)(2).
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repetitive hearing. Similarly, the district court's order requiring a
memorandum of issues to guide subsequent evidentiary hearings
furthered the court's goal of efficiently using its time by allowing it to
review relevant records prior to the hearing, as Greene's counsel even
acknowledged. Moreover, the district court had previously ruled that trial
counsel's decision not to present evidence of Greene's mental state or drug
intoxication was part of a reasoned trial strategy because counsel
concluded the evidence was more damaging than helpful. Therefore, the
district court's refusal to allow additional evidence did not deny Greene a
full and fair opportunity to litigate.
Second, Greene argues that the district court denied him a full
and fair opportunity to litigate the petition by failing to rule on a discovery
motion seeking to depose witnesses and disclose records related to
Greene's intoxication at the time of the crime, the administration of anti-
psychotic medication while in detention, college records, and medical
records. We disagree. Most of the witnesses had submitted sworn
declarations reflecting their probable deposition and evidentiary hearing
testimony. The inquiry at the hearing was whether postconviction counsel
was ineffective for failing to challenge trial counsel's failure to investigate
these witnesses. Under these circumstances, the district court did not err
in implicitly denying Greene's motion for leave to depose the witnesses
when it concluded that it was still part of a reasonable trial strategy not to
introduce the evidence. As to the records, Greene was arrested two days
after the crime, therefore any drug testing or observations during his
arrest would have little evidentiary value in determining whether he was
intoxicated during the crime. Further, any records related to psychiatric
diagnoses and Greene's behavior while using drugs would have little value
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in litigating postconviction counsel's effectiveness considering that the
court had concluded that trial counsel's decision not to introduce similar
evidence was a reasonable trial strategy.
Having considered Greene's contentions and• concluded that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
&A-4 c-k 9-6C , C.J.
Parraguirre
xaczai J.
Hardesty
J.
Piekud J.
Pickering
CHERRY, J., with whom, SAITTA, J., agrees, dissenting:
I cannot agree with the majority's conclusion as to Greene's
claim that prior counsel were ineffective for failing to investigate and
introduce mitigating evidence. In my opinion, the district court erred in
rejecting that claim without conducting an evidentiary hearing. See
Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).
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Greene submitted considerable mitigation evidence with his
petition that he contended prior counsel failed to discover and present to
the jury. Several past psychological evaluations described Greene's
marked impulsivity. Further, he had been diagnosed with conduct
disorder, persistent depressive disorder, and attention deficit-hyperactive
disorder. More recently, evaluating professionals opined that Greene's
behavior is significantly influenced by his severe psychological deficits.
They asserted that Greene lacked the capacity to transform unacceptable
impulses into acceptable behavior. His mood instability, coupled with
stress, could result in episodes of bizarre behavior and irrational impulses.
Additionally, evaluators opined that he was suffering from the chronic
effects of methamphetamine abuse at the time of the crime, and those
effects augmented his impulsivity and could have resulted in a delusional
experience.
New evidence offered with the petition also showed how the
events of his youth aggravated his psychological disorders and how those
disorders influenced the delinquent behavior of his youth. Although the
jury heard some testimony that Greene had been molested, the new
evidence described the abuse in greater detail. Other evidence indicated
that Greene had been physically abused by an uncle and sexually
assaulted by several neighborhood boys. These events caused Greene to
withdraw and become prone to destructive behavior. Greene's father did
not seek appropriate counseling for him, or adequately discipline his
misbehavior, after he was molested. Records of Greene's expulsions and
prior juvenile crimes validate the deleterious effects of his disorders, past
abuse, and lack of discipline. It is clear that Greene's neurological deficits
persisted until the time of the crime. Those who knew Greene when he
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lived at the Sunrise Mobile Home Park described him as "gentle, funny,
and caring," but was known to become "argumentative, belligerent,
paranoid, and violent" as well as "explode in fits of rage."
In its case in aggravation, the State undoubtedly presented
every crime or prior bad act for which it could find evidentiary support in
its effort to convince the jury to impose death. As well it should have-
Greene's crimes, whether those charged or not, were egregious. But
fairness dictates that competent counsel should have investigated and
presented evidence of every mental disorder that troubled Greene, every
predator who victimized him as a child, and every failure of his family to
address his trauma or remedy his behavior. Therefore, I disagree with the
majority's conclusion that counsel's decision not to introduce this
testimony was reasonable trial strategy. The majority also concludes that
such evidence would not have been persuasive given how Greene's crimes
did not appear to be a "rash act." However, mitigation evidence need not
excuse or justify the crime. Hollaway ix State, 116 Nev. 732, 743, 6 P.3d
987, 995 (2000). It need only provide some "basis for jurors to find the
crime mitigated and impose a less severe sentence." Id.
I further disagree with the majority's conclusion that the
district court could have accurately assessed the effect of this evidence
based solely on the trial evidence and proffered affidavits. Although the
decision to impose death should not result from passion or prejudice, see
NRS 177.055(2)(d), it is not a cold, detached determination based purely
on factual proof, see Nunnery v. State, 127 Nev. 749, 775-76, 263 P.3d 235,
252-53 (2011) (noting that the weighing determination is not a factual
finding, but a moral determination); see also McConnell v. State, 125 Nev.
243, 254, 212 P.3d 307, 315 (2009) ("As the United States Supreme Court
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has stated, the jury's decision whether to impose a sentence of death is a
moral decision that is not susceptible to proof." (citing Penry v. Lynaugh,
492 U.S. 302 (1989), abrogated on other grounds by Atkins v. Virginia, 536
U.S. 304 (2002); Caldwell v. Mississippi, 472 U.S. 320 (1985))). While
guided by evidence, the sentencing decision depends greatly on the
sensibility and morality of the jurors imposing it. In this case, a review of
the mere facts presented to the court and proffered documentary evidence
is inadequate to assess whether the jury would have imposed death given
the new evidence. See Graves v. State, 112 Nev. 118, 124, 912 P.2d 234,
238 (1996) ("The cold record is a poor substitute for demeanor
observation."). An evidentiary hearing is necessary, not merely to assess
the credibility of the omitted evidence, but to weigh its resonance.
Accordingly, I would reverse the judgment of the district court and
remand for an evidentiary hearing.
I concur:
J.
cc: Eighth Judicial District Court Dept. 14
Clark County District Attorney
Attorney General/Las Vegas
Federal Public Defender/Las Vegas
Eighth District Court Clerk
Travers A. Greene
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