83 P.3d 818 (Nev. 2004), 40248, Thomas v. State

Docket Nº:40248.
Citation:83 P.3d 818, 120 Nev. 37
Opinion Judge:[9] Per curiam.
Party Name:Marlo THOMAS, Appellant, v. The STATE of Nevada, Respondent.
Case Date:February 10, 2004
Court:Supreme Court of Nevada

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83 P.3d 818 (Nev. 2004)

120 Nev. 37

Marlo THOMAS, Appellant,


The STATE of Nevada, Respondent.

No. 40248.

Supreme Court of Nevada

February 10, 2004.

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David M. Schieck, Las Vegas, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and Clark A. Peterson, Chief Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.



In April 1996, appellant Marlo Thomas robbed a manager and killed two employees at a restaurant where he formerly worked. He was convicted of two counts of first-degree murder and four other felonies and received two sentences of death. Thomas appealed, and this court affirmed his conviction and sentence. 1 He filed a post-conviction petition for a writ of habeas corpus, and the district court denied the petition. He appeals. We conclude that Thomas's counsel were ineffective in failing to object to an incorrect instruction on sentence commutation at the penalty phase of his trial and that a new penalty hearing is required.


At about 7:30 a.m. on April 15, 1996, Thomas drove with his wife Angela and Angela's fifteen-year-old brother, Kenya Hall, to the Lone Star Steakhouse in Las Vegas. The month before, Thomas had lost his job as a dishwasher at the restaurant. Angela waited in the car while Thomas and Hall went to the back door. Stephen Hemmes, a Lone Star employee, was leaving and spoke briefly with Thomas. Thomas then knocked on the back door, and another employee, Matthew Gianakis, let him and Hall enter. Thomas and Hall went to the office of the manager, Vincent Oddo. Thomas pulled out a .32-caliber revolver, pointed it at Oddo, and ordered him to open the safe and give them money. Thomas handed the gun to Hall and told him to take the money from Oddo. Hall remained in the office, took two or three bags of money from Oddo, and allowed Oddo to run out of the building. Hall then returned to the car.

Thomas left the office, obtained a meat-carving knife, and sought out the two employees who were at the restaurant that morning, Gianakis and Carl Dixon. Thomas stabbed Dixon to death in the bathroom. He then chased Gianakis down and stabbed him twice. Gianakis staggered to a gas station next door before dying. After returning to the car and learning that Oddo had escaped, Thomas told Hall "you're not supposed to leave witnesses."

Thomas, Hall, and Angela returned to the house in Las Vegas where they were staying, the home of Thomas's aunt, Emma Nash, and cousin, Barbara Smith. Thomas told Nash and Smith that if anyone asked they should say that they had not seen him. Smith noticed that Thomas's clothes and shoes were bloody. Thomas told Smith that

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he had to get rid of two people and gave her $1,000 to give to his mother. He gave the .32-caliber revolver to Nash. He then changed clothing and took his bloody clothes and shoes and the knife used in the murders to the desert behind the house. The police later recovered the items, and the blood on the clothes was determined to be consistent with Dixon's.

Thomas, Hall, and Angela drove home to Hawthorne, where they were soon arrested. In a videotaped statement, Thomas admitted to police that he had killed the two men but claimed that he had acted in self-defense. He and Hall were charged with two counts of murder with use of a deadly weapon and one count each of robbery with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, conspiracy to commit murder and/or robbery, and burglary while in possession of a firearm. Hall pleaded guilty to robbery with use of a deadly weapon and testified against Thomas at Thomas's preliminary hearing. Before Thomas's trial, however, Hall moved to withdraw his guilty plea and moved to prevent the State from calling him to testify against Thomas. In response, the State moved to use Hall's preliminary hearing testimony at Thomas's trial. The trial began in June 1997, and the district court granted Hall's motion not to testify and the State's motion to use Hall's earlier testimony.

The jury found Thomas guilty on all charges. It then returned two verdicts of death, finding no mitigating circumstances and finding the following six aggravating circumstances for each murder: Thomas had been previously convicted of a felony involving the use or threat of violence, an attempted robbery in 1990; he had been previously convicted of a felony involving the use or threat of violence, a battery causing substantial bodily harm in 1996; the murder was committed during the commission of a burglary; the murder was committed during the commission of a robbery; the murder was committed to avoid or prevent a lawful arrest; and Thomas had been convicted of more than one murder in the immediate proceeding. Thomas was further sentenced to serve consecutive prison terms for the robbery, kidnapping, conspiracy, and burglary.

Thomas appealed, and this court affirmed his conviction and sentence. He filed a timely habeas petition, and the district court held an evidentiary hearing on some of his claims before denying the petition.


As a preliminary matter, we note that Thomas's counsel did not adequately cite to the record in his briefs or provide this court with an adequate record. In support of factual assertions, counsel simply cites the supplemental habeas petition filed below. This is improper. 3 Additionally, counsel failed to include many necessary parts of the record in the Appellant's Appendix. We are able to address the merits of a number of claims only because the State provided a seven-volume appendix that includes necessary parts of the record. 4

Thomas claims that his trial and appellate counsel were ineffective in a number of ways. These claims are properly presented because this is a timely, first post-conviction petition for a writ of habeas corpus. 5 A claim of ineffective assistance of counsel presents a mixed question of law and

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fact, subject to independent review. 6 To establish ineffective assistance of counsel, a claimant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. 7 To show prejudice, the claimant must show a reasonable probability that but for counsel's errors the result of the trial would have been different. 8 Judicial review of a lawyer's representation is highly deferential, and a claimant must overcome the presumption that a challenged action might be considered sound strategy. 9 The constitutional right to effective assistance of counsel extends to a direct appeal. 10 To establish prejudice, the claimant must show that an omitted issue would have had a reasonable probability of success on appeal. 11

A petitioner for post-conviction relief is entitled to an evidentiary hearing only if he supports his claims with specific factual allegations that if true would entitle him to relief. 12 The petitioner is not entitled to an evidentiary hearing if the factual allegations are belied or repelled by the record. 13 The petitioner has the burden of establishing the factual allegations in support of his petition. 14

Thomas asserts that the district court erred in holding an evidentiary hearing on only some of his claims rather than all of them. We conclude that the court did not err in denying those claims implicating the validity of Thomas's conviction. We conclude, however, that the record shows that Thomas's counsel were ineffective in regard to the penalty phase of his trial. We therefore reverse the district court's order in part and remand for a new penalty hearing.

Instruction regarding the power of the Pardons Board to modify sentences

We agree with Thomas that his trial counsel should have objected to the following penalty phase instruction: "Although under certain circumstances and conditions the State Board of Pardons Commissioners has the power to modify sentences, you are instructed that you may not speculate as to whether the sentence you impose may be changed at a later date." This instruction was incorrect in regard to sentences of life in prison without possibility of parole. This court originally required the instruction in capital cases in 1985 in Petrocelli v. State. 15 However, we also expressly stated in Petrocelli that the instruction was to be used "unless and until the law on the subject is modified." 16 Such a modification occurred in 1995 with the enactment of NRS 213.085. Under that statute, for offenses committed on or after July 1, 1995, the Pardons Board cannot commute either a death sentence or a prison term of life without possibility of parole to a sentence allowing parole. 17 Thomas committed his crimes in April 1996, and his trial was in June 1997. Consequently, if he had received sentences of life in prison without possibility of parole, there was no circumstance or condition under which the Pardons Board would have been able to modify those sentences--contrary to the Petrocelli instruction. There is therefore a reasonable probability that jurors mistakenly believed that Thomas could eventually receive parole even if they returned sentences of life in prison without parole and that this belief contributed to their decision to render verdicts of death.

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In Sonner v. State, we stated that in certain circumstances a jury could "occasionally be misled" by the Petrocelli instruction, but there we were referring to cases...

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