Nika v. State
| Decision Date | 31 December 2008 |
| Docket Number | No. 46586.,46586. |
| Citation | 198 P.3d 839 |
| Parties | Avram NIKA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Richard F. Cornell, Reno; Glynn B. Cartledge, Reno, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
Catherine Cortez Masto, Attorney General, and Victor-Hugo Schulze II, Senior Deputy Attorney General, Carson City, for Amicus Curiae Office of the Attorney General for the State of Nevada.
Franny A. Forsman, Federal Public Defender, and Michael Pescetta, Assistant Federal Public Defender, Las Vegas, for Amicus Curiae Federal Public Defender's Office for the District of Nevada.
Danny A. Silverstein, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
BEFORE THE COURT EN BANC.
The primary issue in this appeal concerns a jury instruction defining premeditation, commonly referred to as the Kazalyn1 instruction, and our decision in Byford v. State,2 which addressed specific concerns about that instruction. Appellant Avram Nika challenges our subsequent decisions that Byford announced a new rule with prospective effect.3 In considering his argument, we reexamine whether our decision in Byford constituted a clarification of existing law or a change in the law respecting the meaning of the mens rea for first-degree murder. We hold that Byford announced a change in state law that applies prospectively to murder convictions that were not final when Byford was decided. Nika's conviction was final before Byford was decided. Consequently, we conclude that Nika's trial and appellate counsel were not ineffective for failing to challenge the Kazalyn instruction as that instruction was a correct statement of the law at the time of his trial.
Nika raises several other issues on appeal, none of which we conclude warrant relief. Accordingly, we affirm, the district court's order dismissing Nika's post-conviction petition for a writ of habeas corpus.
Nika left California in his brown Chrysler around noon on August 26, 1994. Sometime later that day Nika's car broke down on I-80 about 20 miles east of Reno, Nevada. Several people saw Nika standing by his car along the highway. Two motorists stopped to help, but Nika refused assistance other than to ask for a tow truck to be sent to his location. Another motorist, Edward Smith, left Reno in his silver BMW at 8 p.m. that night to return to his home in Fallon, Nevada. Other drivers on I-80 that night saw two cars and two men who matched the descriptions of Nika and Smith and their respective vehicles. Despite having plans with his family, Smith never made it home.
The following day, Smith's body was found by a hillside off of I-80, lying next to railroad tracks and a barbed wire fence. Smith had been shot in the forehead. Smith's pants were hanging from the fence, and his wallet with money still in it was lying next to his body. Drag marks in the dirt extended from Smith's body to a Chrysler parked off of I-80. A rock with pooled blood on it was found by the Chrysler's rear passenger side tire. By the front tire, a bullet, a shell casing, and human hair were found on a path of dirt that was stained red.
An autopsy revealed that Smith had suffered three blunt trauma wounds and skull fractures on the back of his head. At least one of the three wounds occurred while Smith was lying face down. On Smith's forehead was a single contact bullet wound that was consistent with the gun being placed directly on his skin when it was fired. Smith suffered lacerations on his face and other wounds consistent with being dragged. The medical examiner opined that the gunshot wound to Smith's head caused his death.
Two days after Smith's body was discovered, the police located Nika in Chicago, Illinois, and observed him exiting Smith's BMW. Nika was arrested for possession of a stolen vehicle. Nika at first denied any knowledge of the BMW, but he later told police that the car belonged to a friend whose name he did not know. When police investigators informed Nika that the BMW was involved in a murder outside of Reno, he changed his story several more times to conform to information that the police revealed about the vehicle and the murder. During a search in Chicago, the police found blood splatter on several items belonging to Nika. DNA test results revealed that the blood splatter was consistent with Smith's blood.
After being extradited from Illinois to Nevada, Nika was incarcerated with Nathaniel Wilson at the Washoe County Jail. According to Wilson, Nika confessed to him the details about Smith's murder. Namely, Nika said that his car broke down, and Smith, who had stopped to help him, called him a vulgar name. Nika hit Smith on the head with a crowbar. While Smith was lying on the ground, Nika shot him in the head and then tried to hide his body. Nika told Wilson that he killed Smith because "he needed to get to Chicago." When Smith's BMW would not start, Nika took the battery out of his own car and put it in the BMW.
A jury found Nika guilty of first-degree murder with the use of a deadly weapon. At the conclusion of the penalty hearing, the jury found one aggravating circumstance— that the murder was committed at random and without apparent motive — and no mitigating circumstances. The jury sentenced Nika to death.
This court affirmed Nika's conviction and death sentence on appeal.4 While Nika's direct appeal was pending, this court issued an order in August 1995 pursuant to a former provision of Supreme Court Rule 250 that required the district court to appoint Nika new counsel and to hold an evidentiary hearing regarding the effectiveness of Nika's trial counsel. After the evidentiary hearing, the district court concluded that Nika's trial counsel were not ineffective. This court affirmed the district court's decision.5
Nika subsequently sought post-conviction relief. In Nika's first post-conviction proceeding, the district court granted the State's motion to dismiss all but one claim in the post-conviction petition for a writ of habeas corpus. That claim related to Nika's contention that the State withheld an agreement with jailhouse informant Wilson. After an evidentiary hearing on that matter, the district court denied that claim as well. On appeal from the district court's ruling on Nika's post-conviction petition, this court declined to rely on its previous ruling related to Nika's SCR 250 hearing, concluding that Nika did not have a full and adequate opportunity to raise his claims in that proceeding. We affirmed the district court's denial of relief based on Nika's claim relating to jailhouse informant Wilson. However, we concluded that the district court's order dismissing Nika's remaining claims was deficient. Consequently, this court remanded the matter for further proceedings.
On remand, the district court allowed Nika to revise his supplemental petition. The State filed a motion to dismiss the petition, which the district court granted. This appeal followed.
Nika contends that the district court erred by dismissing, without an evidentiary hearing, his claims of ineffective assistance of trial and appellate counsel respecting the guilt and penalty phases of his trial and that the district court's erroneous ruling mandates reversal of his conviction and death sentence. Nika is entitled to an evidentiary hearing if he "asserts claims supported by specific factual allegations not belied by the record that, if true, would entitle him to relief."6 As explained below, we conclude that the district court did not err by summarily dismissing Nika's post-conviction claims.
Guilt phase claims
Claims of ineffective assistance of counsel
Nika contends that the district court erred by dismissing his claims of ineffective assistance of trial counsel related to the guilt phase of his trial. "A claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review."7 "However, the district court's purely factual findings regarding [claims] of ineffective assistance of counsel are entitled to deference on subsequent review by this court."8 A claim that counsel provided constitutionally inadequate representation is subject to the two-part test established by the United States Supreme Court in Strickland v. Washington.9 To prevail on a claim of ineffective assistance of trial counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the defense.10 A defendant must demonstrate prejudice by showing a reasonable probability that but for counsel's errors, the result of the trial would have been different.11 "The defendant carries the affirmative burden of establishing prejudice."12 A court need not consider both prongs of the Strickland test if a defendant makes an insufficient showing on either prong.13
Premeditation instruction
The principal issue in this appeal concerns Nika's challenge to the premeditation instruction, commonly referred to as the Kazalyn instruction. Nika argues that the district court erroneously dismissed his claims that the premeditation instruction was improper and that trial counsel were ineffective for failing to challenge the instruction. Nika contends that this court's decision in Byford v. State,14 which considered the Kazalyn instruction, clarified existing law respecting the elements of first-degree murder, and therefore Byford applies to his case. Consequently, according to Nika, his first-degree murder conviction must be reversed due to the alleged improper premeditation instruction and resulting prejudice. Nika argues that his position is supported by the Ninth Circuit Court of Appeals' decision in Polk v. Sandoval,15 which relied on Byford and, contrary...
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... ... Nationally, courts have diverged in their treatment of the term "deliberate" in first-degree murder jurisprudence. Some courts treat deliberation and premeditation as distinct elements. See, e.g., Nika v. State, 198 P.3d 839, 847 (2008) (reaffirming previous holding that "deliberation" and "premeditation" are distinct elements of first-degree murder and reiterating the abandonment of those cases that reduced "deliberation" to a synonym of "premeditation"); State v. Bush, 942 S.W.2d 489, 501 ... ...
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