Chappell (James) v. State (Death Penalty-Pc)

 second penalty hearing, Chappell argues that the district court erred in
denying his claims of ineffective assistance of counsel.'
Ineffective assistance of counsel
Chappell argues that the district court erred by denying
numerous claims of ineffective assistance of trial and appellate counsel
without conducting an evidentiary hearing. "A claim of ineffective
assistance of counsel presents a mixed question of law and fact, subject to
independent review," Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508
(2001), but the district court's purely factual findings are entitled to
'Chappell also contends that the death penalty is unconstitutional
on three grounds: (1) the death penalty scheme fails to genuinely narrow
death eligibility, a contention we have rejected, see State v. Harte, 124
Nev. 969, 972-73, 194 P.3d 1263, 1265 (2008); (2) the death penalty is
cruel and unusual, an argument we have rejected, see Gallego v. State, 117
Nev. 348, 370, 23 P.3d 227, 242 (2001); and (3) the death penalty is
unconstitutional because executive clemency is unavailable, an argument
we have rejected, see Colwell v. State, 112 Nev. 807, 812, 919 P.2d 403,
406-07 (1996). He also contends that his conviction and sentence violate
the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. As he could have raised this claim
in the appeal taken from his judgment of conviction and he failed to assert
cause for the failure to do so or actual prejudice, the district court did not
err in denying this claim. See NRS 34.810(1)(b).
In addition, Chappell also contends that the district court erred in
denying his claim that his conviction violates due process based on an
erroneous guilt phase instruction on premeditation and deliberation and
that all prior counsel were ineffective for not challenging the instruction.
This claim is not properly raised because the proceeding at issue is his
second penalty hearing. See Chappell v. State (Chappell III), Docket No.
49478, at 27-28 (Order of Affirmance, October 20, 2009) (concerning
Chappell's appeal from his second penalty hearing where this court
concluded that Chappell's challenge to the premeditation murder
instruction was not properly before the court).
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deference. Lara ix State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004).
Under the two-part test established by the United States Supreme Court
in Strickland v. Washington, a defendant must show (1) that counsel's
performance fell below an objective standard of reasonableness and (2)
prejudice. 466 U.S. 668, 687-88, 694 (1984); Kirksey v. State, 112 Nev.
980, 987-88, 998, 923 P.2d 1102, 1107, 1114 (1996). To prove ineffective
assistance of appellate counsel, a petitioner must demonstrate that
counsel's performance fell below an objective standard of reasonableness,
and but for counsel's errors, the omitted issue would have had a
reasonable probability of success on appeal. Kirksey, 112 Nev. at 998, 923
P.2d at 1114. "The defendant carries the affirmative burden of
establishing prejudice." Riley ix State, 110 Nev. 638, 646, 878 P.2d 272,
278 (1994). A court need not consider both prongs of the Strickland test if
a defendant makes an insufficient showing on either prong. Strickland,
466 U.S. at 697. An evidentiary hearing is warranted only if a petitioner
raises claims supported by specific factual allegations that are not belied
by the record and, if true, would entitle him to relief. See Hargrove v.
State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
Failure to present testimony
Chappell contends that the district court erred in denying his
claim that trial counsel were ineffective for failing to introduce testimony
from James Ford and Ivri Morrell. We disagree. Chappell could not
demonstrate that, had he been able to introduce the testimony of Ford and
Morrell, he would not have been sentenced to death, because the subject
matter of Ford and Morrell's proffered testimony was substantially
covered by other witnesses. In particular, Benjamin Dean, Fred Dean,
and Mira King discussed the early stages of Chappell and Panos'
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relationship. King even provided broader testimony than could be
provided by Ford and Morrell. Further, Ford's and Morrell's proffered
testimony about the beginning of the relationship was not compelling
considering the trajectory that the relationship eventually followed:
Chappell physically abusing, threatening, and eventually murdering
Panos. Therefore, the district court did not err in denying this claim
without conducting an evidentiary hearing.
Failure to obtain an expert
Chappell argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to obtain an expert who
could have testified that pre-ejaculatory fluid may contain sperm, which
he claims would have reinforced his testimony instead of discrediting it.
We conclude that although counsel were deficient, Chappell failed to
demonstrate that he was prejudiced. The presence of sperm was not the
only evidence that supported the sexual assault aggravating circumstance
and undermined Chappell's testimony. Chappell had a history of abusing
Panos, wrote hostile and threatening letters to her, and threatened her in
court. Before his unexpected release from custody, Panos had planned to
move somewhere Chappell could not find her. Consequently, she became
terrified when she learned of Chappeifs release. While Chappell was at
Panos' home, she attempted to engage in subterfuge to escape. In
addition, her body bore injuries indicating that she had been beaten 15 to
30 minutes before her murder. Given this evidence, Chappell did not
demonstrate a reasonable probability that, but for counsel's failure to
introduce expert testimony on this issue, the jury would not have found
that the murder was committed during the course of a sexual assault.
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Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Positron emission tomography ("P.E.T.') scan
Chappell argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to obtain a P.E.T. scan
where there was some evidence that his mother was addicted to drugs and
alcohol. He contends that a scan could have revealed indicia of Fetal
Alcohol Spectrum Disorders, which could cause physical, learning, and
behavioral problems. We conclude that the district court did not err in
denying this claim without conducting an evidentiary hearing. At the
second penalty hearing, trial counsel introduced expert testimony that
Chappell had a low IQ as well as cognitive deficits, which had been
supported by psychological testing and Chappell's school records. As his
cognitive deficits had been extensively documented and the jury
nevertheless concluded that they were not sufficiently mitigating,
Chappell failed to demonstrate that counsel were deficient in not
obtaining a P.E.T. scan or that he would have benefited from a more
thorough investigation. See Molina v. State, 120 Nev. 185, 192, 87 P.3d
533, 538 (2004) ("Where counsel and the client in a criminal case clearly
understand the evidence and the permutations of proof and outcome,
counsel is not required to unnecessarily exhaust all available public or
private resources."); see also State v. Powell, 122 Nev. 751, 759, 138 P.3d
453, 458 (2006) ("An attorney must make reasonable investigations or a
reasonable decision that particular investigations are unnecessary." (citing
Strickland, 466 U.S. at 691 (1984))).
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Failure to prepare Dr. Lewis Etcoff to testify
Chappell argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to prepare psychologist
Dr. Lewis Etcoffs testimony. He contends that Dr. Etcoffs testimony
could have been more persuasive if he had not relied solely on Chappell's
statements but reviewed other evidence. 2 We conclude that Chappell
failed to demonstrate that had counsel better informed Dr. Etcoff the jury
would not have found the sexual assault aggravator. Dr. Etcoff provided
context for Chappell's abuse in his relationship with Panos and explained
how his cognitive deficits contributed to the murder. Therefore, cross-
examination about further abuse and problems in the relationship did not
undermine his premise. Regardless of how informed the psychologist's
opinion could have been, Chappell failed to show that it would have been
persuasive in light of the remaining evidence contradicting Chappell's
testimony. The evidence demonstrated that Panos ended her relationship
with Chappell, Chappell threatened to kill her, he absconded from the
parole office, snuck into her window, beat Panos, and killed her. Given
this evidence, Dr. Etcoff s opinion, even if it was as informed as Chappell
wanted it to be, would not have been persuasive enough to overcome the
2 Chappell further argues that had counsel introduced an expert to
testify that pre-ejaculate could contain spermatozoa, Dr. Etcoff would not
have admitted that the presence of Chappell's DNA in the victim rendered
Chappell's testimony unbelievable. As Dr. Etcoff testified about
Chappell's psychological condition, it was not unreasonable for counsel to
have not anticipated questioning about the results of DNA evidence.
Moreover, as discussed above, Chappell failed to demonstrate counsel was
ineffective for failing to obtain such an expert.
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great weight of evidence demonstrating that any sexual conduct that
occurred on the day of the murder was not consensual.
Failure to prepare Dr. William Danton to testify
Chappell argues that better preparation could have rendered
clinical psychologist Dr. William Danton's testimony more convincing. He
asserts that Dr. Danton's testimony was unpersuasive because he (1) only
briefly met with Chappell, (2) contradicted Dr. Etcoffs opinion on whether
Chappell could remember the murder, and (3) conceded that it was
possible that Chappell forced Panos to have sex. We conclude that
Chappell failed to demonstrate that trial counsel performed deficiently in
their preparation of Dr. Danton. Dr. Danton's testimony related to Panos
and her state of mind; therefore, it was not undermined by the decision to
not thoroughly evaluate Chappell. Moreover, Dr. Danton's testimony
concerning whether Chappell blacked out during the murder is not
inconsistent with Dr. Etcoff s assessment. In addition, Chappell cannot
demonstrate that he was prejudiced by Dr. Danton's acknowledgement
that Chappell could have forced Panos to have sex given the substantial
evidence showing that Chappell raped - Panos. Therefore, Dr. Danton's
acknowledgement that rape was at least a possibility, did not leave
Chappell's defense in a worse position. The district court did not err in
denying this claim without conducting an evidentiary hearing.
Failure to prepare Dr. Todd Grey to testify
Chappell argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to prepare Dr. Todd
Grey's testimony by informing him of the presence of Chappell's sperm in
Panos' body and the threats and prior abuse in Chappell and Panos'
relationship. We disagree. As Chappell's testimony that he had
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consensual intercourse with the victim shortly before her murder but did
not ejaculate was not believable in light of the other evidence introduced
at trial, Dr. Grey's acknowledgment that ejaculation had occurred did not
render Chappell's testimony less believable. Chappell further failed to
demonstrate that he would not have been sentenced to death had Dr. Grey
been aware of prior threats, abuse, Chappell's testimony, and other
evidence from the scene. As a medical examiner, Dr. Grey's expertise was
limited to the condition of Panos' body. Therefore, his opinion was not
undermined by cross-examination about the prior threats, abuse, or
Chappell's testimony. Further, even knowing about the prior reports of
abuse and testimony in the case did not alter Dr. Grey's conclusion that
there was no evidence of injury indicative of sexual assault. We therefore
conclude the district court did not err in denying this claim without
conducting an evidentiary hearing.
Failure to properly prepare a lay mitigation witness
Chappell contends that the district court erred in denying his
claim that trial counsel were ineffective for not adequately preparing
Benjamin Dean to testify so that his testimony was not "severely
impeached" by a prior affidavit. We conclude that Chappell failed to
demonstrate that had Dean been better prepared, there is a reasonable
probability that he would not have been sentenced to death. The subject
matter of Dean's testimony was substantially covered by other witnesses,
including Mira King, Chappell's sister, and Fred Dean, Chappell's friend,
who testified about Chappell's home life and the beginning of Chappell
and Panos' relationship. Their testimony was not similarly impeached.
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
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Failure to object to cumulative victim impact testimony
Chappell argues that the district court erred in denying his
claim that trial counsel were ineffective for failing to challenge the
adequacy of the notice of evidence in aggravation and that appellate
counsel was ineffective for failing to argue that the victim-impact evidence
was unfairly cumulative. We disagree.
The State's notice of evidence in aggravation was sufficient to
inform the defense that the State would present evidence from Mike
Pollard and Carol Monson. See Mason v. State, 118 Nev. 554, 561, 51 P.3d
521, 525 (2002) (noting that SCR 250(4)(f) requires the State's notice of
aggravation to summarize any evidence that the State intends to
introduce during the penalty hearing). Further, the notice indicated that
Pollard would testify about Panos before the murder and Monson would
testify about Panos' family life. Although Pollard also testified about how
Panos' death affected him, the cross-examination does not indicate that
Chappell was caught unaware by any of the testimony. Further, the
notice also indicated that the State planned to introduce evidence from
Christina Rees and Doris Wichtoski. Accordingly, Chappell could not
claim he was unfairly surprised by the introduction of their letters, which
Monson read.
Chappell would have further been unable to demonstrate on
appeal that the trial court's decision to admit Pollard's and Monson's
testimony was an abuse of discretion. See Johnson v. State, 122 Nev.
1344, 1353, 148 P.3d 767, 774 (2006) (noting that this court reviews a
district court's decision to admit evidence for an abuse of discretion). The
evidence presented by Pollard and Monson was not needlessly cumulative.
See NRS 48.035. Pollard's prior and live testimony focused on different
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aspects of the murder his prior testimony detailed Panos' state of mind
and Chappell and Panos' relationship and his live testimony focused on
Panos and the effect her death had on him Monson testified about Panos,
her relationship with Panos, and the effect of Panos' death on their family.
She also read several letters from family members and her own letter
which provided more detail about Panos' life and death. Although the
testimony and letters covered similar themes, the information contained
and perspectives expressed therein were not repetitive and Monson's
testimony was brief in the context of the overall length of the penalty
hearing. Therefore, the district court did not err in denying this claim
without conducting an evidentiary hearing.
Failure to address prosecutorial misconduct
First, Chappell contends that the district court erred in
denying his claim that trial counsel were ineffective for failing to object to
several instances of prosecutorial misconduct that Chappell challenged in
his direct appeal in order to have benefited from a less deferential
standard of review on appeal. We disagree. We concluded on direct
appeal that the challenged comments did not constitute prosecutorial
misconduct, Chappell u. State (Chappell III), Docket No. 49478, at 23-25
(Order of Affirmance, October 20, 2009), and therefore a less deferential
standard of review on direct appeal would not have resulted in relief.
Second, Chappell contends that the prosecutor committed
misconduct by stating that Chappell had been arrested 10 times in front of
his children because no evidence supported the comment. We agree that
the prosecutor's comment was improper. However, trial counsel objected
to the comment, and the district court sustained the objection. Therefore,
Chappell cannot demonstrate that counsel's performance was deficient.
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Further, given the brevity of the comment, the district court's action in
sustaining the objection, and the evidence produced during the penalty
hearing, Chappell cannot demonstrate that appellate counsel was
ineffective for not raising the issue on appeal. See Hernandez v. State, 118
Nev. 513, 525, 50 P.3d 1100, 1108 (2002) (recognizing that a criminal
conviction will not be overturned on the basis of prosecutorial misconduct
unless the misconduct "so infected the proceedings with unfairness as to
make the results a denial of due process"). 3
Third, Chappell argues that the district court erred in denying
his claim that trial counsel were ineffective for failing to object to the
prosecutor's comments describing Chappell as "a despicable human being"
who "chose evil." We disagree. Given the context of the comments, the
prosecutor was not "ridicul[ing] or belittl[ing] the defendant or the case,"
Earl v. State, 111 Nev. 1304, 1311, 904 P.2d 1029, 1033 (1995), but rather
was describing the defendant and his actions using terminology that
"merely expressed the gravity of the crime charged," Browning v. State,
124 Nev. 517, 534, 188 P.3d 60, 72 (2008). As an objection would have
been futile, Chappell cannot demonstrate that counsel's performance was •
deficient. See Epps v. State, 901 F.2d 1481, 1483 (8th Cir. 1990)
(explaining that prosecutor's comments that were not objectionable cannot
be the basis for ineffective-assistance claim based on counsel's failure to
object); Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006)
3 Chappell also contends that the statement violated NRS 48.045's
bar against the admission of prior bad acts. As evidence of uncharged bad
acts is admissible during a capital penalty hearing, see Nika v. State, 124
Nev. 1272, 1296, 198 P.3d 839; 856 (2008), this argument lacks merit.
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(stating that counsel cannot be deemed ineffective for failing to make a
futile objection).
Failure to object to improper impeachment
Chappell argues that the district court erred in denying his
claim that trial and appellate counsel were ineffective for failing to
challenge the State's improper impeachment of Fred Dean regarding the
facts and circumstances of his prior conviction. The State's impeachment
was improper because questions about the sentence imposed and facts
underlying a witness' conviction are irrelevant. See Jacobs v. State, 91
Nev. 155, 158, 532 P.2d 1034, 1036 (1975); Plunkett v. State, 84 Nev. 145,
147, 437 P.2d 92, 93 (1968). Trial counsel should have objected. However,
Chappell failed to demonstrate prejudice because the inquiry involved the
facts of Dean's prior criminal actions, not Chappell's actions. Although
Dean testified on Chappell's behalf, he was not closely associated with
Chappell. Moreover, the facts of Dean's drug conviction were relatively
innocuous and there is no reasonable probability of a different outcome at
the penalty hearing had the information not been presented or that
Chappell would have obtained relief on appeal based on this error.
Therefore, no relief is warranted on this claim.
Admission of bad act evidence
Chappell contends that the district court erred in denying his
claim that appellate counsel was ineffective for not arguing that Ladonna
Jackson's prior testimony, in which she noted that Chappell made money
by stealing, was impermissible bad act testimony that was not adequately
noticed. We disagree. The State informed Chappell that it intended to
introduce testimony from the guilt phase of his trial, including "prior trial
and penalty hearing transcripts. . . . for the purpose of establishing the
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character of the defendant for penalty purposes." This description
encompassed Jackson's trial testimony. Further, such testimony was not
inadmissible, as evidence of uncharged prior bad acts is admissible at the
penalty hearing. See Nika, 124 Nev. at 1296, 198 P.3d at 856. 4 Therefore,
Chappell failed to demonstrate that appellate counsel's performance was
deficient. See Ennis, 122 Nev. at 706, 137 P.3d at 1103 (stating that
counsel cannot be deemed ineffective for failing to make a futile
objection). 5
Cumulative error
Chappell argues that the district court erred in denying his
claim that the cumulative errors of trial and appellate counsel warrant
relief. We disagree. Chappell only demonstrated that counsel's
performance was deficient in two respects: failing to introduce an expert
to testify about the presence of sperm in the victim and failing to object to
the improper impeachment of Fred Dean. Even assuming that counsel's
deficiencies may be cumulated, see Harris by and through Ramseyer v.
Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (concluding that prejudice may
result from cumulative effect of multiple counsel deficiencies); State v.
4 Chappellsuggests, in passing, that this testimony is impalpable or
highly suspect. In light of the other evidence showing that Chappell stole
to support his drug habit, attempted to sell belongings and rent the
victim's car after her murder, was apprehended trying to shoplift, and
acknowledged that he stole items for his daughter's birthday, Chappell
cannot demonstrate that Jackson's testimony is impalpable or highly
suspect.
5 To
the extent that Chappell contends that the district court erred in
admitting prior bad act evidence, this claim should have been raised in
Chappell's direct appeal. See NRS 34.810(1)(b).
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Thiel, 665 N.W.2d 305, 322 (Wis. 2003) (concluding that multiple incidents
of deficient performance may be aggregated in determining prejudice
under Strickland), we conclude that any deficiencies in counsel's
performance had no cumulative impact warranting relief.
Having considered Chappell's contentions and concluding that
they lack merit, we
ORDER the judgment of the district court AFFIRMED. 6
, C.J.
Hardesty
Tcuu &- AC
L -M .
Panguirre
J.
J.
, J.
Gibbons
J.
Pickering
°The Honorable Michael Douglas, Justice, voluntarily recused
himself from participation in the decision of this matter.
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cc: Hon. Carolyn Ellsworth, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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