Beatty (Sterling) v. State ( 2013 )

 103 P.3d 25, 33 (2004). 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 claimed that trial counsel was ineffective for
failing to challenge the arrest warrant because there was insufficient
evidence presented in the declaration accompanying the arrest warrant to
establish that appellant was the person who committed the crime.
Specifically, appellant claims that there was no record that appellant
owned the cellphone and the victim did not positively identify him in the
photo line-up. Appellant failed to demonstrate that counsel was deficient
or that he was prejudiced. The cellphone found at the crime scene was
determined to belong to appellant based on the fact that the number called
the most from the cellphone was his wife's number and numerous other
people called from the cellphone identified appellant as the user of the
cellphone. Further, while the victim did not definitively identify
appellant, he stated that appellant looked like the person but he was not
sure because the picture showed appellant with his head slightly down.
This information constituted reasonably trustworthy facts and
circumstances that were sufficient to warrant a person of reasonable
caution to believe that a crime had been committed by appellant. State v.
McKellips, 118 Nev. 465, 472, 49 P.3d 655, 660 (2002). Therefore,
appellant failed to demonstrate a reasonable probability of a different
outcome had trial counsel challenged the arrest warrant, and the district
court did not err in denying this claim.
Second, appellant claimed that trial counsel was ineffective for
failing to object to the State's claim that appellant possessed the cellphone
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found at the crime scene. Appellant failed to demonstrate that trial
counsel was deficient or that he was prejudiced. Appellant failed to
demonstrate that there was a basis to object to the cellphone and trial
counsel is not deficient for failing to make futile objections. Donovan v.
State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978). Further, appellant
failed to demonstrate a reasonable probability of a different outcome at
trial had trial counsel made an objection. The cellphone was abandoned at
the crime scene and was tied to appellant by phone calls made from the
cellphone. Therefore, the district court did not err in denying this claim.
Third, appellant claimed that trial counsel was ineffective for
failing to object to the victim's testimony that he previously identified
appellant. Appellant claimed that because the victim stated that the
person in the photo lineup looked like appellant this meant that the victim
did not previously identify him and trial counsel should have used this
information to impeach the victim. Appellant failed to demonstrate that
trial counsel was deficient or that he was prejudiced. The strength of a
previous identification goes to weight and not admissibility, Steese v.
State, 114 Nev. 479, 498, 960 P.2d 321, 333 (1998), and trial counsel is not
deficient for failing to object to this testimony. Further, appellant failed to
demonstrate a reasonable probability of a different outcome had counsel
used this information to impeach the victim. While trial counsel did not
use this information to cross-examine the victim, trial counsel did ask the
police officer who handled the photo line-up whether the victim positively
identified appellant in the line-up. Therefore, this information was
presented to the jury. Accordingly, the district court did not err in
denying this claim.
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Fourth, appellant claimed that trial counsel was ineffective for
failing to move for the attempted robbery charges to be dismissed because
the testimony of one of the victims did not support the charges.
Specifically, appellant claimed that the victim testified that he did not
remember the defendant or his accomplices saying anything during the
encounter. Appellant failed to demonstrate that trial counsel was
deficient or that he was prejudiced. The victim's prior statements to the
police that appellant stated "Do you smoke? Turn everything over to us,"
were introduced to refresh the victim's recollection and the victim stated
that those statements were probably made by appellant but, at the time of
trial, he no longer remembered that. Therefore, there was evidence
introduced that appellant attempted to rob the victims and appellant
failed to demonstrate a reasonable probability of a different outcome at
trial had trial counsel moved to get the attempted robbery charges
dismissed. Accordingly, the district court did not err in denying this
claim.
Fifth, appellant claimed that trial counsel was ineffective for
failing to object to the murder and attempted murder charges at trial.
Specifically, appellant claimed that trial counsel should have objected
because of the victim's inconsistent statements. Appellant failed to
demonstrate that trial counsel was deficient or that he was prejudiced.
Appellant failed to demonstrate that there was a basis for trial counsel to
object to these charges and counsel is not deficient for failing to make
futile objections. Id. Whether the victim made inconsistent statements or
not goes to the weight of the evidence, not the admissibility. Therefore,
appellant failed to demonstrate a reasonable probability of a different
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outcome at trial had trial counsel objected, and the district court did not
err in denying this claim.
Sixth, appellant claimed that trial counsel was ineffective for
failing to object to the conspiracy charge because there was insufficient
evidence. Appellant failed to demonstrate that he was prejudiced because
he failed to demonstrate a reasonable probability of a different outcome at
trial as there was sufficient evidence to convict appellant of conspiracy.
The evidence demonstrated that appellant coordinated his actions with
two other persons in an attempt to rob the victims. See Thomas v. State,
114 Nev. 1127, 1143, 967 P.2d 1111, 1122 (1998) (concluding that a
coordinated series of acts furthering the underlying offense is sufficient to
infer the existence of an agreement, and thus is sufficient evidence to
convict a defendant of conspiracy). Therefore, the district court did not
err in denying this claim.
Seventh, appellant claimed that trial counsel was ineffective
for failing to provide adequate notice of his alibi witness prior to trial.
Appellant failed to demonstrate that counsel was deficient or that he was
prejudiced. Appellant claimed that his sister-in-law would provide him
with an alibi for the crimes. He gave trial counsel her name and number.
When trial counsel attempted to contact her, counsel was informed that
the sister-in-law was no longer at that number. Further, even though she
was noticed as a witness for the State, appellant gave trial counsel an
incorrect last name for his sister-in-law so trial counsel was unaware that
the person noticed by the State was appellant's sister-in-law. Moreover,
appellant failed to demonstrate that there was a reasonable probability of
a different outcome at trial had counsel properly given notice of the alibi
witness. Appellant's sister-in-law had informed detectives that appellant
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asked her to create a fake receipt for the day of the crimes and this
information would have been presented to the jury to rebut appellant's
alibi. Therefore, the district court did not err in denying this claim.
Eighth, appellant claimed that trial counsel was ineffective for
failing to proffer an instruction on attempted murder. This claim is belied
by the record, because there were several instructions given at trial that
encompassed the charge of attempted murder. Therefore, the district
court did not err in denying this claim.
Ninth, appellant claimed that trial counsel was ineffective for
failing to object to the reasonable doubt instruction because it shifts the
burden of proof to the defendant. Appellant failed to demonstrate that
trial counsel was deficient or that he was prejudiced. The instruction
given at trial was the statutorily required instruction, NRS 175.211;
Cutler v. State, 93 Nev. 329, 337, 566 P.2d 809, 813-14 (1977), and he
failed to demonstrate a reasonable probability of a different outcome at
trial had trial counsel objected to the instruction. Therefore, the district
court did not err in denying this claim.
Next, appellant claimed that he received ineffective assistance
of appellate counsel. To prove 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
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(1989). Both components of the inquiry must be shown. Strickland, 466
U.S. at 697.
First, appellant claimed that appellate counsel was ineffective
for failing to argue on appeal that some of the factual statements were
stricken from the presentence investigation report (PSI). Appellant
claimed in his petition that these statements were the statements that
were used to obtain probable cause to arrest him and so counsel should
have argued that there was no probable cause to arrest him. Further, at
the evidentiary hearing, appellant claimed that the statements should
have also been stricken at trial. Appellant failed to demonstrate that
appellate counsel was deficient or that he was prejudiced. The statement
that the court struck from the PSI was that the victim saw appellant shoot
the other victim. The testimony at trial was that the victim saw appellant
with the gun and heard a gunshot, but he did not see appellant shoot the
other victim. It appears that the district court was correct in striking this
information from the PSI. Appellant failed to demonstrate that this
stricken statement would have made a difference to the issuing of an
arrest warrant or that this claim would have had a reasonable probability
of success on appea1. 2 Further, since this information was not presented
to the jury, appellant failed to demonstrate that it should have been
2To the extent that appellant claimed that appellate counsel should
have challenged the arrest warrant on appeal based on the cellphone not
belonging to him and the victim's failure to positively identify him as the
shooter, appellant failed to demonstrate that appellate counsel was
deficient. As stated earlier, the cellphone was tied to appellant based on
phone records and the victim's identification that appellant looked like the
person who had the gun. Therefore, the district court did not err in
denying this claim.
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stricken at trial. Therefore, the district court did not err in denying this
claim.
Second, appellant claimed that appellate counsel was
ineffective for failing to make a double jeopardy argument in the opening
brief on appeal and for failing to make a sufficient and complete
argument. Appellate counsel raised the argument in the reply brief.
Appellant failed to demonstrate that he was prejudiced. As stated in the
order of affirmance, this court has repeatedly rejected claims that the
felony-murder rule violates the Double Jeopardy Clause. Beatty v. State,
Docket No. 51522 (Order of Affirmance, December 4, 2009). Therefore,
appellant failed to demonstrate a reasonable probability of a different
outcome on appeal had appellate counsel made the argument in the
opening brief. Accordingly, the district court did not err in denying this
claim.
Third, appellant claimed that appellate counsel was ineffective
for failing to raise a challenge to the reasonable doubt instruction.
Appellant failed to demonstrate that appellate counsel was deficient or
that he was prejudiced. As stated above, the reasonable doubt instruction
was the instruction required by statute, and appellant failed to
demonstrate a reasonable probability of success on appeal had appellate
counsel raised this issue. Therefore, the district court did not err in
denying this claim.
Next, appellant claimed that the district court improperly
admitted evidence of the bullets found in appellant's garage. This claim
was raised and rejected on direct appeal, and therefore, is barred by the
doctrine of law of the case. Hall v. State, 91 Nev. 314, 315-16, 535 P.2d
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797, 798-99 (1975). Accordingly, the district court did not err in denying
this claim.
Finally, appellant claimed that the cumulative errors of
counsel demonstrate that he is entitled to relief. Because appellant failed
to demonstrate any error, we conclude that the district court did not err in
denying this claim, and we
ORDER the judgment of the district court AFFIRMED.
J.
Gibbons
1, J.
J.
Saitta
cc: Eighth Judicial District Court Dept. 14
Sterling Pogien Beatty
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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