Doleman v. State
| Decision Date | 22 July 1996 |
| Docket Number | No. 27117,27117 |
| Citation | 921 P.2d 278,112 Nev. 843 |
| Parties | Marvin Lewis DOLEMAN, A/K/A Marvin Louis Doleman, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Theodore J. Manos & Associates and Laura L. Melia, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy, and Darin Savage, Deputy, Clark County, for Respondent.
The crime underlying this appeal was previously considered by this court in Doleman v. State, 107 Nev. 409, 812 P.2d 1287 (1991). Appellant Marvin Lewis Doleman, A/K/A Marvin Louis Doleman, ("Doleman") was charged with murder with the use of a deadly weapon, attempted murder with the use of a deadly weapon, and two counts of robbery with the use of a deadly weapon. A jury found Doleman guilty of each charge. Doleman was sentenced to death for the murder conviction and 100 years in prison for the other charges. After this court upheld Doleman's conviction and sentence, Doleman filed a petition for post-conviction relief. After an evidentiary hearing, the district court denied Doleman's petition, ruling that Doleman received effective assistance of counsel during his trial and his direct appeal.
In this appeal, Doleman claims that the district court's ruling was erroneous because his trial counsel failed to (1) call certain witnesses during the penalty phase of the trial, (2) object to the malice instruction given to the jury, and (3) object to instructions regarding the jury's consideration of mitigating circumstances in its death eligibility decision.
Based on the reasoning in this opinion, we conclude that the failure of Doleman's trial counsel to reasonably investigate the potential testimony of certain witnesses at Doleman's penalty hearing constituted ineffective assistance of counsel. Therefore, it is not necessary to review Doleman's other contentions in this opinion. Accordingly, we reverse Doleman's death sentence and remand this case for a second penalty hearing.
In early 1990, two cab drivers were shot in the head by two young men in Las Vegas. On January 9, 1990, the first cab driver was shot three times but survived. On January 19, 1990, the second cab driver was shot twice and died the following day. Based on information received from an informant and obtained during a search, the police arrested Doleman and Frederick Payne ("Payne") for the shootings.
The trial testimony of the first cab driver and an eye-witness to that shooting revealed that when the shooting occurred, Payne and another man were seated in the back seat of the cab. No definitive evidence was introduced to show which individual actually shot the first cab driver. As to the second shooting, trial testimony showed that when the shooting occurred, Doleman was knocking on a second floor motel room door. The woman in the motel room did not answer Doleman's knocks because she did not recognize him. She later saw another young man, presumably Payne, standing next to a cab and yelling to Doleman. Doleman and the other man ran from the scene. The second cab driver was later found wounded in his cab at that motel.
Based on these facts, the prosecution's theory at trial was that Doleman aided and abetted Payne in the perpetration of the two shootings. Doleman's defense theory was This court upheld Doleman's conviction and sentence. Doleman then filed a petition for post-conviction relief. Doleman argued that he received ineffective assistance from counsel during his trial. Doleman alleged that trial counsel failed to call witnesses during the penalty phase of the trial who would have provided mitigating circumstances that the jury should have considered in its death eligibility decision. Also, Doleman argued that trial counsel failed to object to the malice instruction during the guilt phase of the trial. Further, Doleman argued that trial counsel failed to object to the jury instruction regarding the consideration of mitigating circumstances during the penalty phase of the trial.
that he was not involved in either shooting, but was a mere spectator. The jury found Doleman guilty of all counts for which he was charged. On May 10, 1990, a penalty hearing was conducted to sentence Doleman. During the hearing, the State called five witnesses and Doleman called one witness, his former girlfriend. Following the hearing, the jury returned a verdict of death.
In July 1994, the district court conducted a post-conviction evidentiary hearing. Doleman called six witnesses: his trial counsel, his appellate counsel on direct appeal, two teachers from a school which he attended, his mother, and his oldest sister. The State called the investigator who was hired by Doleman's trial counsel to locate evidence for Doleman's defense.
The district court concluded that trial counsel's trial preparation did not fall below the objective standard of reasonableness. The district court classified the decisions made by Doleman's trial counsel during Doleman's penalty hearing as tactical decisions that are virtually unassailable. Specifically, the district court concluded that trial counsel's decision not to present witness testimony from Doleman's teachers or Doleman's family members was reasonable. According to the district court, the teachers could not contradict testimony from the murder victim's girlfriend that the wristwatch found in Doleman's possessions belonged to that victim. As to the family members, the district court noted that Doleman was unaware of the location of those family members at the time of trial and those family members had minimal contact with Doleman during his formative years.
Also, the district court ruled that trial counsel's failure to raise an objection to the malice instruction was a reasonable tactical decision. Further, the district court concluded that nothing in the trial record indicated that the jury was confused about how mitigating circumstances should be considered.
This court has adopted the "reasonably effective assistance" standard to govern ineffective assistance of counsel cases. Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984). The "reasonably effective assistance" standard was articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and described by this court in State v. Love, 109 Nev. 1136, 865 P.2d 322 (1993). In Love, this court stated:
Under this two-prong test, a defendant who challenges the adequacy of his or her counsel's representation must show (1) that counsel's performance was deficient and (2) that the defendant was prejudiced by this deficiency.
"Deficient" assistance requires a showing that trial counsel's representation of the defendant fell below an objective standard of reasonableness. If the defendant establishes that counsel's performance was deficient, the defendant must next show that, but for counsel's errors, the result of the trial probably would have been different.
Id. at 1138, 865 P.2d at 323 (citing Strickland, 466 U.S. at 687-94, 104 S.Ct. at 2064-68).
In order to satisfy the objective standard of reasonableness, trial counsel must make a sufficient inquiry into the information that is pertinent to his client's case. Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2065-67. Once a reasonable inquiry is made, counsel should make a reasonable strategy decision on how to proceed with his client's defense. Id. A strategy decision, such as who should be called as a witness, is a tactical Testimony of Doleman's family members
decision that is "virtually unchallengeable absent extraordinary circumstances." Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180 (1990) (citing Strickland, 466 U.S. at 691, 104 S.Ct. at 2066-67); State v. Meeker, 143 Ariz. 256, 693 P.2d 911, 917 (1984).
At the post-conviction evidentiary hearing, Doleman's mother and sister stated that they could have testified during Doleman's penalty hearing, but that they were never contacted by trial counsel. Doleman's mother would have told the jury that during...
To continue reading
Request your trial
-
Doyle v. Filson
...these photographs. Counsel's strategy decisions are not subject to challenge absent extraordinary circumstances. Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996). Two of the photographs depict injuries to Mason's head and face, and are gruesome. However, even gruesome photog......
-
Turner v. Baker
...contact and present a defendant's family members at sentencing may constitute ineffective assistance of counsel. Doleman v. State, 112 Nev. 843, 848-49, 921 P.2d 278, 281 (1996). In Doleman, [the] defendant was found guilty of murder and robbery and sentenced to death. By a petition for wri......
-
Blake v. Gittere
... ... The jury also found three ... mitigating circumstances: Blake's remorse; his mental, ... emotional, or physical state at the time of the ... incident; and no evidence of a long-standing plan to commit ... murder. However, the jury determined that any ... “‘virtually unchallengeable absent extraordinary ... circumstances.'” Doleman v. State , 112 ... Nev. 843, 848, 921 P.2d 278, 280-81 (1996) (quoting ... Howard v. State , 106 Nev. 713, 722, 800 P.2d 175, ... ...
-
Doyle v. State, 33216.
...these photographs. Counsel's strategy decisions are not subject to challenge absent extraordinary circumstances. Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996). Two of the photographs depict injuries to Mason's head and face, and are gruesome. However, even gruesome photog......