Hazelwood (Shaquille) v. State ( 2013 )

 petitioner must demonstrate that counsel's performance fell below an
objective standard of reasonableness and that, but for counsel's errors,
there is a reasonable probability that 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 deficiency and prejudice
must be demonstrated. Strickland, 466 U.S. at 697. We give deference to
the district court's factual findings regarding ineffective assistance of
counsel if they are supported by substantial evidence and are not clearly
wrong 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, Hazelwood argues that trial counsel was ineffective for
failing to request that a guardian ad litem be appointed when he moved to
withdraw his guilty plea because of his age. Hazelwood fails to
demonstrate that an objectively reasonable attorney in trial counsel's
place would have requested such an appointment as Hazelwood alleges no
standard or statutory requirement that a criminal defendant be appointed
a guardian ad litem because of age, immaturity, social background, or
decision-making skills. Insomuch as Hazelwood argues that he needed a
guardian ad litem to make his legal decisions for him, "Mlle decision of
how to plead in a criminal case is a fundamental one reserved ultimately
to the defendant alone." Parker v. State, 100 Nev. 264, 265, 679 P.2d 1271,
1272 (1984); see also Robinson v. State, 110 Nev. 1137, 1138, 881 P.2d 667,
668 (1994) (once a child is certified as an adult, he "is no longer a child in
the eyes of the criminal law"). Further, Hazelwood fails to demonstrate a
reasonable probability that the outcome would have been different as the
district court appointed separate counsel for the limited purpose of
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reviewing the motion and advising Hazelwood on his plea withdrawal,
and, after conferring with special counsel and being thoroughly canvassed
by the district court on his decision, Hazelwood chose to withdraw his
guilty plea and proceed to tria1. 1
Second, Hazelwood claims that trial counsel was ineffective for
failing to file a motion to suppress the eyewitness identification by Claire
Daniels because it was unnecessarily suggestive, she abused drugs, and
her testimony as to how long she knew Hazelwood before the incident was
impeached. A review of the record reveals that Daniels told the officer
that she knew the shooter and identified him by name prior to being
shown any photograph. After being shown a photograph of Hazelwood
taken from when he was younger, Daniels immediately identified him as
the shooter but said that he looked younger in the picture. Given the
strong identification by Daniels, counsel's conduct did not fall below an
objective standard of reasonableness. Furthermore, Hazelwood failed to
demonstrate that a motion to suppress the eyewitness identification had a
reasonable likelihood of success. Doyle v. State, 116 Nev. 148, 154, 995
P.2d 465, 469 (2000) (holding that, where a claim of ineffective assistance
is based on counsel's failure to file a motion to suppress, prejudice must be
demonstrated by "showing that the claim was meritorious and that there
was a reasonable likelihood that the exclusion of the evidence would have
changed the result of a trial" (internal quotation marks omitted)). As for
'To the extent that Hazelwood asserts that the district court erred
by failing to, sua sponte, appoint a guardian ad litem, this claim should
have been raised on direct appeal, and Hazelwood has failed to
demonstrate good cause for his failure to do so. NRS 34.810(1)(b)(2).
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the claims that Daniels abused drugs and that her testimony regarding
the length of time she had known Hazelwood was impeached, these claims
went to the weight and credibility of Daniels' testimony and were "within
the exclusive province of the jury." White v. State, 95 Nev. 881, 885, 603
P.2d 1063, 1065 (1979). Accordingly, trial counsel was not deficient, and
the district court did not err in denying this claim.
Third, Hazelwood argues that trial counsel was ineffective for
disclosing his incarceration pending trial. In reviewing claims of
ineffective assistance of counsel, this court has stated that "a tactical
decision . . . is 'virtually unchallengeable absent extraordinary
circumstances." Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-
81 (1996) (quoting Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180
(1990) abrogated on other grounds by Harte v. State, 116 Nev. 1054, 1072
n.6, 13 P.3d 420, 432 n.6 (2000)). Hazelwood has not demonstrated
extraordinary circumstances. During opening statements, counsel
disclosed that Hazelwood was incarcerated pending trial when she
referenced the fact that Aaron Noble, one of the State's witnesses to the
shooting who had told officers he would never forget the shooter, shared a
cell with Hazelwood for about a week and did not recognize him. We
conclude that trial counsel's decision to disclose Hazelwood's custodial
status in order to attack Noble's eyewitness identification was not
unreasonable, and the district court did not err in denying this claim.
Fourth, Hazelwood argues that trial counsel was ineffective
for disclosing his prior juvenile conduct. On cross-examination of the lead
detective, counsel asked the officer whether he contacted Spring Mountain
Youth Camp regarding Hazelwood, to which the officer answered in the
affirmative, and what his purpose was in contacting the camp, but a bench
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conference was held before the officer answered. Outside the presence of
the jury, trial counsel explained that her line of questioning was a
strategic decision. We conclude that Hazelwood has failed to demonstrate
extraordinary circumstances to challenge counsel's tactical decision and
that counsel's performance was not deficient. Id. Furthermore,
Hazelwood has failed to show prejudice, as the jury was never informed
that the camp was a juvenile detention facility or that Hazelwood was ever
detained there. Therefore, the district court did not err in denying this
claim. 2
Fifth, Hazelwood claims that trial counsel was ineffective for
failing to request that the jury be instructed on the lesser-included offense
of voluntary manslaughter. Hazelwood acknowledges that the existence of
malice precludes an instruction on voluntary manslaughter. Graves v.
State, 84 Nev. 262, 266, 439 P.2d 476, 478 (1968). However, Hazelwood
argues that the jury could have reasonably concluded that the shooter was
provoked by the victim's attempt to drive away while the shooter's arm
was inside the vehicle and that the rapid acceleration caused the shooter
to pull the gun's trigger. A review of the record reveals substantial
evidence that Hazelwood acted with malice in shooting the victim,
including but not limited to testimony that, after seeing the victim
produce a bundle of money, Hazelwood walked around the car to where
the victim was located, produced a gun, demanded that the victim give
To the extent that Hazelwood argues that testimony regarding his
2
selling drugs in the alleyway where the murder occurred was a prior bad
act that should have been challenged as inadmissible, we conclude that
Hazelwood has failed to demonstrate that his counsel's performance was
deficient. See NRS 48.045(2).
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him all her money, and, after discharging the firearm, opened the door
and attempted to locate the victim's money. See NRS 200.020(2). We
conclude that Hazelwood has failed to show that his counsel's performance
was deficient.
Fifth, Hazelwood contends that appellate counsel was
ineffective for failing to challenge the sufficiency of the evidence. In
particular, Hazelwood argues that there is no credible evidence tying him
to the crime. 3 To prove a claim of 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, see Jones v. Barnes, 463 U.S. 745, 751
(1983) as limited by Smith v. Robbins, 528 U.S. 259, 288 (2000), and this
court has held that 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). We conclude that there is no reasonable
probability that this issue would have been successful on appeal. When
reviewing a claim of insufficient evidence, the relevant inquiry is
"whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Koza v. State, 100 Nev.
3 In
his reply in support of the petition before the district court,
Hazelwood conceded that there was "overwhelming evidence connecting
Hazelwood to this murder."
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245, 250, 681 P.2d 44, 47 (1984) (emphasis in original omitted) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Our review of the record
reveals that there was sufficient evidence before the jury to establish guilt
beyond a reasonable doubt. 4
Sixth, Hazelwood argues that appellate counsel was
ineffective for failing to challenge erroneously introduced hearsay
statements. Specifically, Hazelwood challenges statements made by
Elijah Davis, a person whom Noble called and confided in after the
shooting, regarding Noble's description of the shooter and Noble's recap of
the victim's last words. Hazelwood fails to demonstrate deficiency or
prejudice. The record reflects that the district court allowed the
statements over trial counsel's continuing objection to Davis's testimony
as hearsay. The district court's decision to admit or exclude evidence is
reviewed for an abuse of discretion. Thomas v. State, 122 Nev. 1361, 1370,
148 P.3d 727, 734 (2006). For a statement to be admissible as an excited
utterance, it must have been made when the declarant was still "under the
stress of the startling event." Medina v. State, 122 Nev. 346, 352, 143 P.3d
471, 475 (2006); see 51.085; NRS 51.095. The State elicited testimony
from Davis that Noble was scared, shaky, and terrified when speaking
with him and that the victim's last words were made while the shooter
was pointing a gun at her and demanding money from her. The record
supports the conclusion that the declarants, both Noble and the victim,
4We note our conclusion on direct appeal that there was
"overwhelming evidence of Hazelwood's guilt." Hazelwood v. State, Docket
No. 54175 (Order of Affirmance, July 15, 2010).
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were under the influence of a startling event when speaking. Accordingly,
appellate counsel was not ineffective.
Having considered Hazelwood's claims and concluded that the
district court did not err by denying Hazelwood's petition, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
Parraguirre
cc: Hon. Doug Smith, District Judge
Law Office of Kristina Wildeveld
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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