concurring in part and dissenting in part:
I concur with the majority’s analysis and decision in regard to the State’s challenge to the timeliness of respondent Kitrich Powell’s claim. I must dissent, however, to reversing the district court’s determination that Powell’s trial counsel were ineffective.
As the district court concluded and the majority accepts, counsel acted deficiently in failing to contact Powell’s two brothers and calling them to testify at his penalty hearing. But the majority disagrees with the district court that Powell was prejudiced as a result. I conclude that the district court’s decision deserves to be affirmed. The question is whether there is a reasonable probability that jurors would have returned a different sentence if Powell’s brothers had testified.
To summarize the relevant evidence, Powell battered and ultimately killed his girlfriend’s four-year-old daughter. As the majority observes, given the helplessness and blamelessness of the victim, the jury had good reason to be outraged by the crime itself. Powell also had a history of burglaries as well as convictions for *763robbery and assault with intent to commit, rape. On the other hand, as a child Powell was neglected and mistreated by his parents, both of whom abused substances. In fact, he and his brothers were essentially abandoned by their mother. He did poorly at school and grew up largely without adult guidance or support in his life. Exacerbating his difficulties and antisocial behavior, Powell became addicted to alcohol and drugs. The trial jury found four aggravating circumstances. But three were based on Powell’s being under sentence of imprisonment when he committed the murder, namely three concurrent terms imposed at the same proceeding for a robbery and two burglaries in Oklahoma. And the fourth was based on the same robbery, as a previous conviction of a felony involving the use or threat of violence. The jury found no mitigating circumstances.
If this were the extent of the relevant evidence, I could perhaps agree with the majority in rejecting the district court’s determination that Powell was prejudiced by the failure to call his brothers as witnesses. But the majority neglects a crucial factor in this case: the prosecutor’s cross-examination of Powell’s trial investigator and its consequences. The key exchange was the following:
Prosecutor: Basically your job was to try to find people to come here and say good things about the defendant?
Witness: That would be about right.
Prosecutor: You talked to quite a few people [in Pennsylvania]?
Witness: Yes.
Prosecutor: And you talked to a lot of people in Oklahoma?
Witness: Yes.
Prosecutor: Did you find anybody that had anything good to say about the defendant?
Witness: No.
Prosecutor: I have nothing further.
Then during closing argument, the State returned to this testimony not once but twice, stressing to jurors that the investigator could not find one person to testify for Powell, not even his brother or sister. Moreover, this court on direct appeal, in concluding that Powell’s death sentence was not excessive, noted specifically: “Further, at the penalty hearing, only one witness appeared on Powell’s behalf. The defense investigator who contacted Powell’s family and friends indicated that he was unable to find one person who had ‘anything good to say’ about Powell.”1 It is thus plain that the defense’s failure to call two witnesses willing to testify for Powell was prejudicial.
*764To begin with, as the district court found, counsel should have objected to the State’s improper comment on Powell’s failure to call witnesses.2 The State’s argument was also unfair and should have been challenged because even at trial it was known that Powell’s sister had not declined to testify for him: Powell’s mother testified that his sister was dead. But most critical is that both the State and this court considered it important that the defense had failed to find any other witnesses to testify on Powell’s behalf even though he faced a death sentence. It was a damaging piece of evidence — no one in the world was willing to come forward and ask that his life be spared. This failure, however, was due to the deficient performance of defense counsel, and in fact both of Powell’s brothers were available and willing to testify. I conclude that counsel’s failure must be considered prejudicial. Given the significance that the State and this court attached to the lack of defense witnesses, it is likely that jurors too found it significant when they decided that Powell deserved to die.
The district court had the opportunity to hear and observe the testimony of Powell’s two brothers and personally assess the impact their testimony would have had on the jury, something members of this court have not had the opportunity to do. The district court appropriately determined that there was a reasonable probability that pleas by Powell’s two brothers to spare his life would have led to a different result. I do not think we should disturb this decision reached after first-hand observation of the potential witnesses. For this reason, I dissent.
Powell v. State, 108 Nev. 700, 715-16, 838 P.2d 921, 931 (1992), vacated by Powell v. Nevada (Powell II), 511 U.S. 79 (1994).
See Gallego v. State, 117 Nev. 348, 365-66 & n.34, 23 P.3d 227, 239 & n.34 (2001).