59 P.3d 440 (Nev. 2002), 36546, Leslie v. Warden

Docket Nº:36546.
Citation:59 P.3d 440, 118 Nev. 773
Opinion Judge:[9] The opinion of the court was delivered by: Rose, J.
Party Name:Wilbert Emory LESLIE, Appellant, v. Warden, Ely State Prison, E.K. McDaniel, Respondent.
Attorney:[7] Patti & Sgro and James A. Colin, Las Vegas, for Appellant.
Case Date:December 18, 2002
Court:Supreme Court of Nevada
 
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Page 440

59 P.3d 440 (Nev. 2002)

118 Nev. 773

Wilbert Emory LESLIE, Appellant,

v.

Warden, Ely State Prison, E.K. McDaniel, Respondent.

No. 36546.

Supreme Court of Nevada

December 18, 2002.

Page 441

[Copyrighted Material Omitted]

Page 442

Patti & Sgro and James A. Colin, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Brian S. Rutledge and Lynn M. [118 Nev. 774] Robinson, Chief Deputy District Attorneys, Clark County, for Respondent.

[118 Nev. 775] Before the Court En Banc.

OPINION

ROSE, J.

Appellant Wilbert Emory Leslie robbed a convenience store and fatally shot the on-duty clerk. The district court convicted Leslie, pursuant to a jury verdict, of burglary, robbery with the use of a deadly weapon, and first-degree murder with the use of a deadly weapon. The jury found four aggravating circumstances: (1) the murder was committed by a person who knowingly created a great risk of death to more than one person, (2) the murder was committed by a person engaged in or fleeing from a burglary, (3) the murder was committed by a person engaged in or fleeing from a robbery, and (4) the murder was committed at random and without apparent motive. The jury concluded that the aggravating circumstances outweighed the mitigating circumstance--that Leslie had no significant criminal history--and imposed a sentence of death.

In the opinion affirming Leslie's conviction and sentence, this court concluded that the evidence did not support the jury's finding as to the first aggravator and struck it. 1 We then concluded that sufficient evidence supported the remaining aggravators, reweighed the aggravating and mitigating circumstances, and affirmed Leslie's death sentence. 2

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Leslie filed a timely post-conviction petition for a writ of habeas corpus. The district court appointed counsel to represent Leslie but declined to conduct an evidentiary hearing. The district court denied Leslie's petition, and this appeal followed.

DISCUSSION

Ineffective assistance of counsel

Leslie argues that trial and appellate counsel rendered constitutionally ineffective assistance. Claims of ineffective assistance of counsel are evaluated under the two-part test set forth in Strickland v. Washington. 3 Under Strickland, a petitioner must demonstrate that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the defense. 4 To establish prejudice based on trial counsel's deficient performance, a petitioner must show that but for counsel's errors there is a reasonable probability that the verdict would have been different. 5 To establish prejudice based on appellate counsel's deficient performance, a petitioner must show that the omitted issues would have had a reasonable probability of success on appeal. 6

Leslie claims that trial counsel was ineffective for failing to object to three of the prosecutor's allegedly improper statements. 7

During [118 Nev. 777] his guilt phase closing argument, the prosecutor stated, "And on cross-examination, [Rhesa Gamble] very freely discussed how detectives allegedly planted information with her, how detectives allegedly told her that number two in the photographic lineup was [Leslie] before she even saw it. We now know that's incorrect. " (Emphasis added.) Leslie contends that the prosecutor improperly asserted his personal opinion of Gamble's credibility and usurped the jury's fact-finding function by using the word "we."

Even if we assume that trial counsel was deficient in not challenging the prosecutor's statement, we conclude that Leslie cannot demonstrate that the error prejudiced his defense. The prosecutor's statement addressed a portion of Gamble's testimony in which she stated that the detectives pointed to Leslie's picture before she had the opportunity to identify him in a photographic lineup. Immediately thereafter, the prosecutor inquired whether she picked Leslie out of the lineup of her own volition or because the detectives suggested that she do so. Gamble repeatedly stated that she picked Leslie's photograph out of the lineup because she recognized him. Also, Gamble later testified that the detectives did not attempt to influence her with respect to the photographic lineup. Because Gamble made it clear that she identified Leslie of her own volition and not because of the detectives' suggestion, Leslie's claim does not raise a reasonable probability that the jury's verdict would have been different had trial counsel objected to the prosecutor's statement. Therefore, the district court properly denied relief on this ground.

The second allegedly improper statement occurred early in the State's penalty phase opening statement. The prosecutor stated, "Obviously, this is a case that will not be soon erased in your minds. You are also, perhaps to a certain extent, victims. You will perhaps never forget the video tape that you saw of this killing by the defendant." (Emphasis added.) Leslie argues that the prosecutor improperly asked the jury to view themselves as victims of Leslie's wrongdoing. We disagree. The prosecutor did not invite the jury to feel how the convenience store clerk or patrons felt during the crime. 8 We

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conclude that trial counsel reasonably declined to challenge the prosecutor's statement and the district court properly denied relief on this claim.

[118 Nev. 778] The third alleged incident of prosecutorial misconduct occurred during the penalty phase closing argument. When addressing the mitigating evidence, the prosecutor stated:

I suggest to you that Leslie does have a substantial criminal history.

But even if you disagree with our perspective, you have to ask yourself the important question: Is this enough to mitigate the death penalty, mitigate these aggravating circumstances? Is this enough to say that he doesn't deserve the ultimate punishment in this case?

Leslie contends that this statement misled the jury to believe that death was the presumed sentence unless he produced sufficient mitigating evidence to overcome it and trial counsel was ineffective for not objecting. We disagree. While it is possible that the jury could have been momentarily confused by the prosecutor's statements, they were not blatantly improper. NRS 200.030(4)(a) requires the jury to conclude that the mitigating circumstances do not outweigh the aggravating circumstances before it may consider death as a possible sentence. The prosecutor's statements can be read as proper comment on this weighing process. Because the statements were not clearly improper, it was not objectively unreasonable for trial counsel to decline to object. Moreover, the possible confusion was remedied by the district court's instruction that the jury's decision to impose death is ultimately discretionary. 9 Thus, we conclude that the district court properly denied relief on this ground.

Leslie [118 Nev. 779] next contends that his appellate counsel provided constitutionally ineffective assistance by failing to challenge the constitutionality of NRS 200.033(9), which provides that a murder is aggravated if it is committed "at random and without apparent motive." Leslie contends that the aggravator is unconstitutionally vague and ambiguous and inappropriately applied to him.

After reviewing the record on appeal, we conclude that appellate counsel was not ineffective for failing to challenge the "at random and without apparent motive" aggravator. Leslie's argument that the aggravator is facially vague and ambiguous is not novel. In fact, we have repeatedly rejected the claim. 10 It is not objectively unreasonable for appellate counsel to abstain from raising a likely fruitless claim. Therefore, the district court properly denied relief on this ground.

We also conclude that appellate counsel was not deficient in declining to argue that the "at random and without apparent motive" aggravator was not supported by the evidence. We have consistently upheld death sentences based upon this aggravator when, as in this case, the killing was unnecessary

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to complete the robbery. 11 Moreover, even in the absence of a challenge, we were required by statute on direct appeal to perform an independent review of the record to determine whether sufficient evidence supported the jury's finding as to each aggravating circumstance. 12 Given our mandatory review of the finding, appellate counsel may have reasonably chosen to focus on issues that were more likely to yield results. Thus, appellate counsel was not ineffective for declining to challenge the aggravator's applicability and the district court properly denied relief on this ground.

The "at random and without apparent motive" aggravator

Nevertheless, we have elected to reconsider whether this aggravator is appropriately applied when the sole basis for it is that the [118 Nev. 780] defendant unnecessarily killed someone in connection with a robbery.

While this claim could have been raised before and is therefore subject to the waiver provisions of NRS 34.810(1)(b), we conclude that our refusal to consider the issue would result in a fundamental miscarriage of justice. 13 We have stated that a fundamental miscarriage of justice can be demonstrated by a showing that the defendant "is actually innocent of the crime or is ineligible for the death penalty." 14 We conclude that it is also demonstrated by the situation in this case. Because, as discussed below, we consider his claim meritorious, Leslie is actually innocent of the "at random and without apparent motive" aggravator. And because there is a reasonable probability that absent the aggravator the jury would not have...

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