Brass (George) v. State ( 2013 )

must be shown, Strickland, 466 U.S. at 697, 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, appellant claimed counsel was ineffective for failing to
object to jury instruction no. 8, which defined willful, deliberate, and
premeditated first-degree murder, on the ground that it erased the
distinction between first- and second-degree murder. Appellant failed to
demonstrate deficiency or prejudice. The language in jury instruction nos.
8 and 9 tracks verbatim that set forth in Byford v. State, 116 Nev. 215,
236-37, 994 P.2d 700, 714-15 (2000). Further, even if the instruction were
erroneous, appellant was convicted not only of first-degree murder but also
of the robbery during the course of which the murder occurred such that
he would have been liable for first-degree murder under the felony-murder
rule. We therefore conclude that the district court did not err in denying
this claim.
Second, appellant claimed counsel was ineffective for failing to
object to jury instruction nos. 11 and 12, on the theories that they conflict
with jury instruction no. 8 and that jury instruction no. 12 forced him to
defend against the various theories of liability without any proof of their
underlying elements. Appellant failed to demonstrate deficiency or
prejudice. Jury instruction no. 12 informed the jury of the State's
alternate theories of liability while other jury instructions informed the
jury of the elements necessary for each of those alternate theories: jury
instruction no. 8 for willful, deliberate, and premediated murder; jury
instruction no. 11 for felony murder; jury instruction no. 21 for conspiracy;
and jury instruction no. 28 for aiding and abetting. Cf. Tanksley v. State,
113 Nev. 844, 849, 944 P.2d 240, 243 (1997) (noting that any ambiguity
may be cured by taking the jury instructions as a whole). We therefore
conclude that the district court did not err in denying these claims.
Third, appellant claimed counsel was ineffective for failing to
object to jury instruction no. 33, which defined reasonable doubt, on the
grounds that it allowed the jury to convict based on emotion and it shifted
the burden of proof to appellant. Appellant failed to demonstrate
deficiency or prejudice. The challenged instruction was mandated by NRS
175.211, which this court has repeatedly upheld. Buchanan v. State, 119
Nev. 201, 221, 69 P.3d 694, 708 (2003). We therefore conclude that the
district court did not err in denying this claim.
Fourth, appellant claimed counsel was ineffective for failing to
retain and present evidence by a ballistics expert to prove that a bullet
fragment recovered from the second crime scene was not fired from a
revolver found in appellant's home. Appellant failed to demonstrate
deficiency or prejudice. Counsel was not objectively unreasonable for not
retaining such an expert when no evidence suggested that the revolver
was at the crime scene. Further, despite having been granted an
evidentiary hearing, appellant presented no evidence of what such an
expert would have said and thus failed to demonstrate a reasonable
probability of a different outcome had counsel investigated the bullet
fragment. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004).
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We therefore conclude that the district court did not err in denying this
claim.
Fifth, appellant claimed counsel was ineffective for failing to
retain and present evidence by a forensic expert that appellant's hoodies
did not have any gunshot residue on them. Appellant failed to
demonstrate deficiency or prejudice. Appellant did not demonstrate that
it was objectively unreasonable for counsel to not have tested clothing that
was retrieved nearly a week after one crime and nearly two weeks after
another. Further, appellant presented no evidence of what such an expert
would have said and thus failed to demonstrate a reasonable probability of
a different outcome had counsel investigated the hoodies. See id. We
therefore conclude that the district court did not err in denying this claim.
Sixth, appellant claimed counsel was ineffective for failing to
object to prosecutorial misconduct in opening and closing statements
where the State inferred that appellant was a story-changing liar and
vouched for the credibility of a witness. Appellant failed to demonstrate
deficiency or prejudice. The State neither called appellant a liar nor
vouched for any witness's credibility. Rather, the State listed appellant's
various changes in his version of events and suggested why the ultimate
version was not likely. Such inferences are permissible in closing
argument. Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990).
Further, the State simply pointed out the lack of motive for its witness
fabricate, which did not rise to vouching. See Browning v. State, 120 Nev.
347, 359, 91 P.3d 39, 48 (2004). We therefore conclude that the district
court did not err in denying this claim.
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Seventh, appellant claimed counsel was ineffective for failing
to object to the jury being void of a cross-section of African Americans.
Appellant failed to demonstrate deficiency or prejudice. "The Sixth
Amendment does not guarantee a jury or even a venire that is a perfect
cross section of the community," and appellant neither made any
argument nor presented any evidence that African Americans were
systematically excluded from the venire. Williams v. State, 121 Nev. 934,
939-40, 125 P.3d 627, 631 (2005). Indeed, appellant conceded that the
venire contained at least two African Americans. We therefore conclude
that the district court did not err in denying this claim.
Eighth, appellant claimed counsel was ineffective for refusing
to allow him to testify at trial. Appellant failed to demonstrate deficiency
or prejudice. Appellant, who posed no questions to counsel and presented
no other evidence to support his claim, failed to demonstrate the facts
underlying his claim by a preponderance of the evidence. Further, the
district court's finding that appellant was advised that the right to testify
was his, not counsel's, choice, is supported by substantial evidence in the
record. We therefore conclude that the district court did not err in
denying this claim.
Ninth, appellant claimed that cumulative error warranted
reversal of his conviction. As appellant failed to demonstrate any error, he
failed to demonstrate any cumulative effect of error that would amount to
ineffective assistance of counsel. We therefore conclude that the district
court did not err in denying this claim.
Appellant next argued that the district court erred in denying
his claims of ineffective assistance of appellate counsel. To prove
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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). 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).
First, appellant argued that appellate counsel was ineffective
for failing to raise all of the substantive claims that underlaid his
ineffective-assistance-of-trial-counsel claims. For the reasons discussed
previously, appellant failed to demonstrate that appellate counsel was
deficient or that he was prejudiced. We therefore conclude that the
district court did not err in denying this claim.
Second, appellant claimed that appellate counsel was
ineffective for failing to federalize his claims on direct appeal. Appellant
failed to demonstrate prejudice. Appellant failed to demonstrate that he
would have gained a more favorable standard of review on direct appeal
had appellate counsel federalized the arguments. See Browning, 120 Nev.
at 365, 91 P.3d at 52. We therefore conclude that the district court did not
err in denying this claim.
Third, appellant claimed that appellate counsel was ineffective
for failing to argue that the district court erred when it granted
appellant's presentence motion to withdraw his guilty plea. Appellant
failed to demonstrate deficiency or prejudice. The district court may grant
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a motion to withdraw a guilty plea "for any 'substantial reason' if it is 'fair
and just," and this court reviews that decision for an abuse of discretion.
Woods v. State, 114 Nev. 468, 475, 958 P.2d 91, 95 (1998) (quoting State v.
Second Judicial Dist. Court, 85 Nev. 381, 385, 455 P.2d 923, 926 (1969).
Appellant failed to demonstrate that the district court abused its
discretion in granting appellant's motion to withdraw and, thus, that his
claim would have had a reasonable probability of success on appeal. We
therefore conclude that the district court did not err in denying this
claim. 2
Appellant next argued that the district court erred when it
admitted at trial a .38 revolver found at appellant's home. This claim was
raised and disposed of on direct appeal, Brass v. State, Docket No. 55252
(Order of Affirmance, December 10, 2010), and the doctrine of the law of
the case prohibited further litigation of this issue. Hall v. State, 91 Nev.
314, 316, 535 P.2d 797, 799 (1975) ("The doctrine of the law of the case
cannot be avoided by a more detailed and precisely focused argument
subsequently made after reflection upon the previous proceedings."). We
note that although appellant quoted in his reply brief below case law
discussing when it may be proper for a court to depart from the law of the
case, see Tien Fu Hsu v. Cnty. of Clark, 123 Nev. 625, 630-31, 173 F'.3d
2To the extent appellant claimed that the district court erred in
granting the motion to withdraw guilty plea, appellant's claim could have
been raised on direct appeal and was thus procedurally barred absent a
demonstration of good cause and actual prejudice. NRS 34.810(1)(b)(2).
For the reasons discussed above, appellant's claim of ineffective assistance
of appellate counsel did not demonstrate good cause or actual prejudice.
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724, 728-29 (2007), he made no cogent argument that his case involved
such extraordinary circumstances, Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987). We therefore conclude that the district court did not
err in denying this claim.
For the foregoing reasons, we conclude that appellant's claims
are without merit, and we
ORDER the judgment of the district court AFFIRMED. 3
Douglas
cc: Hon. Stefany Miley, District Judge
George Murrdock Brass
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.