Centofanti, Iii (Alfred) v. State ( 2013 )

 Appellant also argues that the district court erred in denying
his other claims of ineffective assistance of Bloom, who was defense
counsel at trial. To prove ineffective assistance of counsel, a petitioner
must demonstrate (a) that counsel's performance was deficient in that it
fell below an objective standard of reasonableness and (b) resulting
prejudice in 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 the test in
Strickland). Both components of the inquiry must be shown, Strickland,
466 U.S. at 697, and the petitioner must demonstrate the underlying facts
by a preponderance of the evidence, Means, 120 Nev. at 1012, 103 P.3d at
33. We give deference to the district court's factual findings regarding
ineffective assistance of counsel 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 argues that counsel was ineffective for failing
to investigate the victim's cosmetic surgery records. Appellant failed to
demonstrate prejudice. Counsel testified that appellant had insisted on
testifying to the surgeon's alleged comments at trial, and appellant
testified that at the time of trial, he believed that the surgeon had in fact
told him that the victim had nasal damage due to drug use. Appellant
failed to demonstrate by a preponderance of the evidence that he would
not have testified to his knowledge of the victim's drug-related nasal
damage had he known the surgeon's notes did not reflect it. We therefore
conclude that the district court did not err in denying this claim.
Second, appellant argues that counsel was ineffective for
failing to interview and secure early in the case the favorable testimony of
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his coworkers, who, because of media coverage and the inflammatory
actions of the victim's supporters, ceased contact with him upon his
release from jail. Appellant failed to demonstrate deficiency or prejudice.
Appellant failed to present any evidence to support his claims that his
coworkers would have provided information favorable to the defense.
Further, Bloom did not appear in the case until nine months after
appellant was released on bond, well after the coworkers ceased contact.
We therefore conclude that the district court did not err in denying this
claim.
Third, appellant argues that counsel was ineffective for
referring in opening statements to the expected testimony of three
witnesses whom he failed to subpoena and/or call to testify. Appellant
failed to demonstrate prejudice. Counsel's opening statements are not
evidence on which the jury may base its verdict, Rodriguez v. State, 128
Nev. , n.3, 273 P.3d 845, 848 n.3 (2012), and thus could not have
affected the outcome at trial. Moreover, appellant failed to present
evidence as to what E. Eisenmann and L. DeMeo would have testified to or
how it would have affected the outcome at trial. Finally, the testimony
that appellant claims Lt. Franks" could have offered was introduced
through other expert witnesses. We therefore conclude that the district
court did not err in denying this claim.
'Appellant also claimed that the district court erred in not
considering that appellant's decision to testify was informed by his belief
that Franks would testify as counsel had represented in opening
statements. This argument was not raised below, and we decline to
address it in the first instance on appeal. Davis, 107 Nev. at 606, 817 P.2d
at 1173.
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Fourth, appellant argues that counsel was ineffective for
failing to file a pretrial motion in limine to preclude the State from using
the terms "murder," "victim," "crime scene," "assassination," and "mafia
hit man" during trial. Appellant failed to demonstrate deficiency or
prejudice. As to the first three terms, appellant's claim on appeal is
contradicted by his claim below where he argued only that counsel was
ineffective for not enforcing the motion that was filed and granted. See id.
Further, because the law of this case is that appellant failed to
demonstrate that the State engaged in "substantial and prejudicial
misconduct" by the use of those words, Centofanti v. State, Docket No.
44984 (Order of Affirmance, December 27, 2006); see Hall v. State, 91 Nev.
314, 316, 535 P.2d 797, 799 (1975), appellant failed to demonstrate a
reasonable probability of a different outcome had the State not used them.
As to "assassination" and "mafia hit man," appellant failed to demonstrate
that counsel should or could have anticipated the use of such words and
thus failed to demonstrate that counsel was unreasonable in not including
them in his motion. We therefore conclude that the district court did not
err in denying this claim.
Fifth, appellant argues that counsel was ineffective because he
filed a motion to dismiss that argued the wrong legal standard and then
failed to obtain a pretrial ruling on the motion. Appellant failed to
demonstrate deficiency or prejudice. Appellant failed to demonstrate that
counsel was objectively unreasonable for arguing that the State failed to
preserve the evidence rather than that it failed to collect evidence where
the State photographed, collected, then released to the victim's relatives
her purse, keys, Palm Pilot, and cell phone. Further, appellant failed to
demonstrate a reasonable probability of a different outcome had counsel
argued the allegedly correct standard where appellant presented no
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evidence of gross negligence or bad faith and questioned the State's failure
to collect evidence on cross-examination of key witnesses. See Gordon v.
State, 121 Nev. 504, 509-10, 117 P.3d 214, 218 (2005). Finally, appellant
failed to demonstrate that it was unreasonable for counsel to wait until
the State sought to introduce the evidence before seeking a ruling on the
motion or that an earlier ruling would have resulted in a different
outcome. We therefore conclude that the district court did not err in
denying these claims.
Sixth, appellant argues that counsel was ineffective for failing
to file a pretrial motion regarding the State's failure to collect blood
spatter evidence on an exercise bike or to have an expert examine it.
Appellant failed to demonstrate deficiency or prejudice. Appellant made
no cogent argument in support of his assertion that counsel was
objectively unreasonable in not filing such a pretrial motion nor that such
a motion would have been successful. Cf. Kirksey v. State, 112 Nev. 980,
990, 923 P.2d 1102, 1109 (1996) (holding that petitioner did not
demonstrate prejudice where he failed to demonstrate that a motion to
suppress evidence would have succeeded); see also Maresca v. State, 103
Nev. 669, 673, 748 P.2d 3, 6 (1987) ("It is appellant's responsibility to
present relevant authority and cogent argument; issues not so presented
need not be addressed by this court."). A defense expert did examine
photographs of the spatter on the bike, and appellant did not demonstrate
that the spatter was still on the bike when Bloom was retained. Further,
appellant presented no evidence of gross negligence or bad faith, and
counsel did question the failure to collect the bike on cross-examination of
key witnesses. See Gordon, 121 Nev. at 509-10, 117 P.3d at 218. We
therefore conclude that the district court did not err in denying these
claims.
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Seventh, appellant argues that counsel was ineffective for
failing to properly investigate, document, or process shell casings that
appellant found three to four months after the shooting. Appellant failed
to demonstrate deficiency or prejudice. Appellant did not retain Bloom
until several months after he found the casings and had already notified
his prior counsel. Appellant made no cogent argument as to how counsel
could be deficient for not acting on behalf of a stranger. Maresca, 103 Nev.
at 673, 748 P.2d at 6. Further, the jury heard evidence from the defense
ballistics expert as to how and where appellant found the casings and how
it informed the expert's opinion. We therefore conclude that the district
court did not err in denying this claim.
Eighth, appellant argues that counsel was ineffective for
failing to prevent the trial court's canvass of appellant regarding his
agreement to a defense theory of self-defense. Appellant failed to
demonstrate deficiency or prejudice. The district court asked only
whether appellant agreed with counsel's tactic of admitting that appellant
was the shooter, and appellant acknowledged that counsel objected to the
canvass. There was never any question but that appellant was the
shooter, and even assuming that the canvass procedure were improper,
appellant failed to demonstrate that counsel was objectively unreasonable
in not taking further action to prevent the canvass. Further, appellant's
admission neither locked him into a self-defense theory at trial nor
foreclosed a mens rea defense since the canvass was not admitted into
evidence and the State's opening statements focused on its theory of the
case and not on appellant's anticipated self-defense theory. We therefore
conclude that the district court did not err in denying this claim.
Ninth, appellant argues that counsel was ineffective in failing
to file a petition for a writ of mandamus in this court to challenge the
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disqualification of Albregts as trial counsel, resulting in the violation of
appellant's right to counsel of his choice. Appellant failed to demonstrate
deficiency or prejudice. Appellant did not provide this court with any of
the pleadings that led to Albregts' disqualification and thus did not
demonstrate that counsel was deficient in not challenging the district
court's ruling or that there was a reasonable probability of success had he
done so. Cf. Kirksey, 112 Nev. at 990, 923 P.2d at 1109. Further,
appellant did not demonstrate by a preponderance of the evidence that
Albregts was his counsel of choice. Counsel testified that appellant
specifically said he did not want Albregts to represent him and, although
appellant denied making that statement, he did admit that he never
specifically requested to have Albregts reinstated. We therefore conclude
that the district court did not err in denying this claim.
Tenth, appellant argues that counsel was ineffective for failing
to object to prosecutorial misconduct, create a record at the close of trial
when the State had not called Albregts as a witness, and seek to have
Albregts reinstated. Appellant failed to demonstrate deficiency or
prejudice. Because appellant did not provide this court with any of the
pleadings that led to Albregts' disqualification, he did not demonstrate by
a preponderance of the evidence that the prosecutor engaged in
misconduct and thus that counsel was deficient in not objecting to it.
Further, appellant does not specify how or why counsel could have created
a better record or how creating a better record or having Albregts
reinstated after the close of evidence would have changed the outcome of
trial. We therefore conclude that the district court did not err in denying
these claims.
Eleventh, appellant argues that counsel was ineffective for
failing to obtain a ruling on his motion in limine to exclude from trial any
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evidence from the sale of appellant's California property and that had
counsel done so, Albregts would not have been disqualified. Appellant
failed to demonstrate deficiency or prejudice. He presented no evidence
that such a motion had been filed or what it contained, nor did he present
cogent argument as to whether the motion would have been successful.
Id.; Maresca, 103 Nev. at 673, 748 P.2d at 6. Moreover, as Albregts had
already been disqualified when Bloom appeared in the case, appellant
failed to demonstrate that any inaction of counsel led to the
disqualification. We therefore conclude that the district court did not err
in denying this claim.
Twelfth, appellant argues that counsel was ineffective for
failing to present evidence at trial to corroborate his version of the events
of December 1, 2000, and December 5, 2000. Appellant failed to
demonstrate deficiency or prejudice. Appellant did not produce the
allegedly corroborating evidence and thus failed to demonstrate by a
preponderance of the evidence that it supported his version of events.
Further, the State did not challenge appellant's version of events that led
up to the December 5 incident. We therefore conclude that the district
court did not err in denying these claims.
Thirteenth, appellant argues that counsel was ineffective for
choosing to present self-defense as appellant's primary defense. Appellant
failed to demonstrate deficiency or prejudice. Counsel testified that he
focused on self-defense because it was what appellant had said happened
and counsel did not believe the evidence supported any lesser-included
offenses. Appellant failed to demonstrate the "extraordinary
circumstances" necessary to challenge this tactical decision. Doleman v.
State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996). Moreover,
appellant presented no evidence at his evidentiary hearing that any other
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defense would have been more viable. We therefore conclude that the
district court did not err in denying this claim.
Fourteenth, appellant argues that counsel was ineffective for
not determining what notes and pictures were given to the State in
violation of the attorney-client privilege and then preventing the State
from using them. Appellant failed to demonstrate deficiency or prejudice.
Appellant presented no evidence to support his claim that counsel failed to
determine what notes and pictures were turned over to the State.
Further, counsel testified that the pictures had been provided to and used
by a defense expert so that the State would have been provided the
pictures as part of discovery regardless. Finally, appellant did not
demonstrate by a preponderance of the evidence that the State used either
the notes or pictures. We therefore conclude that the district court did not
err in denying these claims.
Fifteenth, appellant argues that counsel was ineffective for
calling Dr. Eisele as an expert at trial because his report contradicted the
defense theory of the case. Appellant failed to demonstrate deficiency or
prejudice. Appellant failed to provide Dr. Eisele's report and thus failed to
demonstrate the facts underlying his claim by a preponderance of the
evidence. Further, Dr. Eisele's trial testimony indicated only that his
notes contained a 2001 comment that it would be difficult to present this
case as the victim having attacked appellant but that, after reviewing all
of the evidence, he had changed his mind. We therefore conclude that the
district court did not err in denying this claim.
Sixteenth, appellant argues that counsel was ineffective for
failing to determine the extent to which appellant was prejudiced by being
coerced into signing an order to cremate the victim's body. Appellant
failed to demonstrate deficiency or prejudice. Appellant did not state what
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investigation counsel should have undertaken to determine the prejudice,
what the results of that investigation would have been, or what counsel
should have done with those results. Molina v. State, 120 Nev. 185, 192,
87 P.3d 533, 538 (2004). Further, appellant did not demonstrate that he
in any way waived his right to remain silent simply by signing the
cremation order. We therefore conclude that the district court did not err
in denying this claim.
Seventeenth, appellant argues that counsel was ineffective for
failing to object to the testimony of Detective Thowsen on the grounds that
it was a comment on appellant's post-arrest silence and because it was
improperly withheld from discovery. Appellant failed to demonstrate
deficiency or prejudice. The witness testified that when he arrived on the
crime scene, he observed appellant in the back of a police car with his
head turned towards and nodding at a man who the witness believed was
appellant's counsel. Appellant claims that the discovery provided by the
State did not include this observation and thus was a violation of Nevada's
discovery statutes and Brady v. Maryland, 373 U.S. 83 (1963). Appellant
cites to no authority to support his claim that the witness's observation
amounted to an impermissible comment on post-arrest silence or that the
State must document and turn over every observation or conversation it
has with potential witnesses. Maresca, 103 Nev. at 673, 748 P.2d at 6.
Further, appellant did not argue let alone demonstrate that the
observation was favorable to him and thus did not demonstrate that his
constitutional rights were violated. Brady, 373 U.S. at 87; Mazzan v.
Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000). We therefore conclude
that the district court did not err in denying these claims.
Eighteenth, appellant argues that counsel was ineffective for
failing to object to the State's untimely disclosure of the transcripts of
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previous interviews of F.S., S. Smith, and A. Atwood as violations of
Nevada discovery statutes and Brady. Appellant failed to demonstrate
deficiency or prejudice. Appellant's claim as to F.S. is belied by the record
because counsel did object and the district court gave counsel additional
time to review the transcripts before questioning the witness. Appellant
failed to state what further objection would have achieved. As to the other
two witnesses, appellant did not allege or demonstrate that counsel
requested the transcripts so as to trigger statutory disclosure
requirements. NRS 174.235(1). Further, appellant did not demonstrate a
Brady violation. The State ultimately turned over the transcripts, and
appellant neither alleged specific facts nor provided evidence that the
transcripts contained information favorable to the defense. Brady, 373
U.S. at 87; Mazzan, 116 Nev. at 66, 993 P.2d at 36. We therefore conclude
that the district court did not err in denying this claim.
Nineteenth, appellant argues that counsel was ineffective for
failing to adequately cross-examine witnesses F.S. and S. Smith, including
impeaching them with prior inconsistent statements, and for failing to
object to improper comments. Appellant failed to demonstrate deficiency
or prejudice. Appellant's claim is belied by the record to the extent
counsel cross-examined F.S. about prior inconsistent statements regarding
a gun and his initial failure to relate that he heard appellant threaten to
kill the victim. Appellant failed to identify any other inconsistent
statements for either witness, present any evidence indicating that
counsel's cross-examination was objectively unreasonable, or identify the
improper comments to which counsel should have objected. We therefore
conclude that the district court did not err in denying these claims.
Twentieth, appellant argues that counsel was ineffective for
failing to request an evidentiary hearing to determine whether the
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testimony of A. Atwood was more prejudicial than probative. Appellant
failed to demonstrate deficiency or prejudice. Appellant made no cogent
argument to support his claim that her testimony was more prejudicial
than probative. Maresca, 103 Nev. at 673, 748 P.2d at 6. We therefore
conclude that the district court did not err in denying this claim.
Twenty-first, appellant argues that counsel was ineffective for
failing to impeach T. Miller with previous testimony and/or statements
and for failing to move for a full evidentiary hearing on her alleged
misconduct. Appellant failed to demonstrate deficiency or prejudice.
Appellant did not identify any previous testimony or statements with
which counsel should have impeached the witness. Further, the trial
court held a hearing outside the presence of the jury to address the
witness's actions and determined that appellant's offer of proof did not
indicate misconduct. Appellant did not state what additional information
would have been brought forth in a "full evidentiary hearing" or how it
would have affected either the district court's ruling or the outcome of
trial. We therefore conclude that the district court did not err in denying
these claims.
Twenty-second, appellant argues that counsel was ineffective
for failing to contemporaneously object to the admission of the many
hearsay statements made by the victim, thereby failing to preserve them
for appeal. Appellant failed to demonstrate deficiency or prejudice.
Appellant acknowledged that counsel filed a pretrial motion to preclude
such hearsay, and the record reflects that the district court allowed its
admission for limited purposes. Contemporaneous objections are not
necessary to preserve an issue for appeal where, as here, there is no
allegation that the issue was inadequately briefed or that the district
court's pretrial ruling was not definitive. Richmond v. State, 118 Nev.
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924, 932, 59 P.3d 1249, 1254 (2002). We therefore conclude that the
district court did not err in denying this claim.
Twenty-third, appellant argues that counsel was ineffective
for failing to object to Sgt. Winslow's testimony regarding his observations
of the events surrounding December 5, 2000, when the district court had
ruled that such evidence was inadmissible. Appellant failed to
demonstrate deficiency or prejudice. Appellant admitted below that the
district court had specifically allowed the witness's observations. To the
extent appellant's claim is in reference to the witness's conclusions and
conversation with the victim, the district court initially excluded them but
later ruled they were admissible, a ruling to which counsel stated a
continuing objection. See id. We therefore conclude that the district court
did not err in denying this claim.
Twenty-fourth, appellant argues that counsel was ineffective
for failing to file a motion in limine to preclude the admission of evidence
regarding a call appellant placed to a counseling hotline, for not objecting
to the information as privileged, and for not preparing to cross-examine
the therapist. Appellant failed to demonstrate deficiency or prejudice.
Counsel objected to the therapist's testimony as privileged and, after a
mid-trial hearing, the district court largely overruled the objection.
Appellant did not demonstrate how a motion in limine would have
changed the outcome of the ruling or of trial. Further, appellant did not
state what else counsel could have done to cross-examine the therapist or
how it would have affected the outcome at trial. We therefore conclude
that the district court did not err in denying these claims.
Twenty-fifth, appellant argues that counsel was ineffective for
failing to object to a juror wearing an inappropriate shirt and to two jurors
who slept intermittently throughout trial. Appellant failed to demonstrate
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deficiency or prejudice. Counsel testified that he did not observe the shirt
or the sleeping jurors, and appellant failed to demonstrate that counsel's
failure to observe the alleged misconduct was itself unreasonable.
Notably, appellant did not allege that he himself had observed the alleged
misconduct. We therefore conclude that the district court did not err in
denying this claim.
Twenty-sixth, appellant argues that counsel was ineffective
for failing to seek to enforce a pretrial ruling excluding from trial evidence
of appellant's alleged smear campaign against the victim. Appellant failed
to demonstrate deficiency or prejudice. Appellant provided neither an
order nor a transcript of the oral ruling evidencing the trial court's
exclusion of any such reference. The district court minutes indicate only
that the court did not "believe" the evidence would come in during the
State's case-in-chief but rather that it could come in during cross-
examination if appellant testified. Even if this oral pronouncement were
in fact an order excluding the reference, appellant testified, so the
evidence would have come in on cross-examination, and appellant
therefore failed to demonstrate a reasonable probability of a different
outcome had counsel objected during the State's opening arguments or
case-in-chief. We therefore conclude that the district court did not err in
denying this claim.
Twenty-seventh, appellant argues that counsel was ineffective
for failing to challenge as a prior bad act the admissibility of appellant's
employment records and his termination from employment for allegedly
violating his employer's firearms policy. Appellant failed to demonstrate
deficiency or prejudice. Appellant provided no cogent argument nor
evidence that the challenged evidence constituted prior bad acts that could
only be admitted after a hearing pursuant to Petrocelli v. State, 101 Nev.
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46, 51-52, 692, P.2d 503, 507-08 (1985) (requiring a hearing before
introducing evidence of collateral offenses). Maresca, 103 Nev. at 673, 748
P.2d at 6. Further, the record demonstrates that counsel successfully
objected to the State's attempt to elicit the grounds for appellant's
termination. We therefore conclude that the district court did not err in
denying this claim.
Twenty-eighth, appellant argues that counsel was ineffective
for failing to secure the attendance at trial of several potential witnesses
for the defense, including R. Dominguez's grandmother; M. Stephenson;
appellant's neighbor, Herb; Dr. Calixco; Nurse Kruger; and A. Pearson.
Appellant failed to demonstrate deficiency or prejudice. Appellant did not
present any evidence that any of the witnesses were available for trial or
would have provided testimony favorable to the defense. We therefore
conclude that the district court did not err in denying this claim.
Twenty-ninth, appellant argues that counsel was ineffective
for not effectively using the victim's criminal history to demonstrate her
propensity for violence. Appellant failed to demonstrate deficiency or
prejudice. Appellant did not provide this court with a copy of the victim's
criminal records and presented no evidence beyond what was testified to
at trial to support his claims that they demonstrated a propensity for
violence. We therefore conclude that the district court did not err in
denying this claim.
Thirtieth, appellant argues that counsel was ineffective for not
following up on his challenge to the validity of the search warrant.
Appellant failed to demonstrate deficiency or prejudice. Appellant failed
to present any evidence to support his claim that the search warrant was
invalid and thus that counsel was ineffective in failing to pursue a
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challenge to it. We therefore conclude that the district court did not err in
denying this claim.
Thirty-first, appellant argues that counsel was ineffective for
failing to use for the benefit of his criminal defense the discovery
provisions from the guardianship proceedings for his and the victim's son.
Appellant failed to demonstrate deficiency or prejudice. Appellant
presented no evidence to demonstrate what the results of using the family-
court discovery provisions would have been. Cf. Molina v. State, 120 Nev.
185, 192, 87 P.3d 533, 538 (2004) (upholding the denial of an ineffective-
assistance-of-counsel claim because appellant did not demonstrate what a
more thorough investigation would have revealed). Further, appellant
presented no evidence to support his claim that the file of his son's
guardian ad litem contained information favorable to appellant's criminal
defense. We therefore conclude that the district court did not err in
denying this claim.
Thirty-second, appellant argues that counsel was ineffective
for failing to be available during the seven-day post-trial period during
which a motion for new trial could have been filed. Appellant failed to
demonstrate deficiency or prejudice. Appellant admitted that he and
counsel discussed his options immediately after the verdict was returned
and before counsel left for vacation. Further, although appellant faults
counsel for not filing a motion for new trial based on juror misconduct, he
presented no evidence that counsel was made aware of or could have
reasonably discovered the alleged misconduct within the seven-day period
had counsel made himself available. We therefore conclude that the
district court did not err in denying this claim.
Finally, appellant claims that the cumulative effect of the
errors violated his constitutional rights. Appellant cited this court's
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standard on direct review for cumulative-error analysis, see Big Pond v.
State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985), but provided no analysis
to support his claim. We therefore conclude that the district court did not
err in denying this claim.
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED. 2
J.
Hardesty
PeraLA
Parraguirre
J.
cc: Hon. Elissa F. Cadish, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 The district court dismissed appellant's first five grounds in his
petition as procedurally barred pursuant to NRS 34.810(1)(b) because they
could have been raised on direct appeal. Appellant does not challenge this
ruling on appeal and has thus abandoned the claims.
Appellant correctly states that the district court erred in not making
specific findings of fact to support its summary conclusion that appellant
failed to demonstrate prejudice for thirty-two claims. See NRS 34.830(1).
We nevertheless affirm the district court's decision for the reasons
discussed herein.
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