Bejarano v. State

• Decision Date: 07 December 1990
• Docket Number: No. 20466,20466
• Citation: 106 Nev. 840,801 P.2d 1388
• Parties: John BEJARANO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1388

801 P.2d 1388

106 Nev. 840

John BEJARANO, Appellant, v. The STATE of Nevada, Respondent.

No. 20466.

Supreme Court of Nevada.

Dec. 7, 1990.

Douglas Norberg, Reno, for appellant.

Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty., Gary H. Hatlestad, Deputy Dist. Atty., Reno, for respondent.

OPINION

PER CURIAM:

This is an appeal from a petition for post-conviction relief. Appellant John Bejarano was charged in the death of Roland Wright, a Reno cab driver who was found shot in the head. Appellant was convicted of first degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon, possession of a sawed-off rifle, possession of a stolen vehicle, carrying a concealed weapon, and possessing a firearm while an ex-felon. Appellant was sentenced to death, pursuant to a jury verdict, as well as to six prison terms of fifteen years, six years, six years, one year, and six years, respectively. Appellant's direct appeal was dismissed by this court. He then filed a petition for post-conviction relief in the district court, but was denied. This appeal followed.

Appellant challenges the legality of his death penalty, claiming that four of the six aggravating circumstances are inapplicable as a matter of law or were not proved as a matter of fact. This court, pursuant to NRS 177.055(2)(b), ¹ reviewed this contention on direct appeal and concluded that the record supported the finding of all six aggravating circumstances. "The law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same." Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975) (citations omitted). Therefore, this court's prior ruling represents the law of the case and will not be disturbed.

Appellant next contends that his trial attorney's failure to call any witnesses, including himself, to testify that his Miranda ² rights were not read to him constitutes ineffective assistance of counsel.

Appellant's claim of ineffective assistance of counsel is analyzed under the "reasonably effective assistance" standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this court in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). The Strickland standard requires a two-prong analysis. First, the defendant must show that counsel's performance was deficient. This analysis requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. Second, defendant must show that the deficient performance prejudiced the defense. This analysis requires showing that counsel's errors must be so serious that they deprived defendant of a fair trial. Id. 466 U.S. at 687, 104 S.Ct. at 2064. Moreover, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Strickland explained prejudice as showing that the decision reached would reasonably likely have been different absent the asserted errors. Id. Here, appellant cannot make this showing because the trial judge, at appellant's post-conviction relief hearing, made it clear that calling Bejarano to the stand would have made little difference: "the evidence before the Court was that the arresting officers had read the defendant his Miranda rights. At most, calling the petitioner to testify would have raised a credibility issue to be decided by the court since there would have been conflicting testimony."

Moreover, no other witnesses who could have testified that appellant was not read his Miranda rights are mentioned in appellant's brief; thus, without knowing who these other witnesses are, or indeed, if any even exist, we cannot determine whether appellant was prejudiced by his trial attorney's failure to call witnesses to testify that his Miranda rights were not read to him....