Browning v. State

• Decision Date: 10 June 2004
• Docket Number: No. 39063.,39063.
• Citation: 91 P.3d 39,120 Nev. 347
• Parties: Paul Lewis BROWNING, Appellant, v. The STATE of Nevada; Warden, Ely State Prison, E.K. McDaniel and Frankie Sue Del Papa, Attorney General for the State of Nevada, Respondents.
• Court: Nevada Supreme Court

91 P.3d 39

120 Nev. 347

Paul Lewis BROWNING, Appellant, v. The STATE of Nevada; Warden, Ely State Prison, E.K. McDaniel and Frankie Sue Del Papa, Attorney General for the State of Nevada, Respondents.

No. 39063.

Supreme Court of Nevada.

June 10, 2004.

JoNell Thomas, Las Vegas; Heller Ehrman White & McAuliffe LLP and Jason B. Isaacs, San Diego, California; Heller Ehrman White & McAuliffe LLP and Warrington Samuel Parker III, San Francisco, California, for Appellant.

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

Before SHEARING, C.J., ROSE and MAUPIN, JJ.

OPINION

PER CURIAM.

In 1985, appellant Paul Lewis Browning robbed and stabbed to death Hugo Elsen at Elsen's jewelry store in Las Vegas. Browning was convicted of murder and sentenced to death. This is his timely first petition seeking post-conviction relief, pursuant to former NRS 177.315-.385 (equivalent to a post-conviction habeas petition). The district court denied the petition, finding that Browning received effective assistance of counsel and that his other claims were procedurally barred.

This appeal raises numerous claims. The primary issue is whether Browning's appellate counsel was ineffective for failing to challenge the aggravating circumstance of depravity of mind. We conclude that counsel was ineffective in this regard, requiring us to vacate Browning's death sentence and remand for a new penalty hearing. We otherwise affirm the district court's order.

FACTS

On November 8, 1985, Hugo Elsen was stabbed to death during a robbery of his jewelry store in Las Vegas. His wife, Josy Elsen, was in the back of the store when he was attacked. Hearing noises, she went into the showroom and saw a black man wearing a blue cap squatting over her husband holding a knife. She fled out the back door to the neighboring store and asked the employees there to call the police. She and a neighboring employee, Debra Coe, then returned to the jewelry store where Coe placed a pillow under Elsen's head and covered him with a blanket. Two to four minutes later help arrived. Elsen soon died, after giving a very brief description of the perpetrator as a black man wearing a blue cap with loose curled wet hair. Debra Coe also described a man she had seen leaving the vicinity: he was wearing a blue cap, blue jacket, Levi's, and tennis shoes; was about 27 years old and about six-feet tall; and had hair a little longer than the cap he was wearing and a mustache. Another witness, Charles Woods, identified a person he saw leaving the vicinity as a black man wearing a dark or blue cap and dark trousers, about six-feet tall, and weighing about 180 pounds.

Shortly after the crimes, Randy Wolfe approached police and told them that a man was in Wolfe's nearby hotel room with a large amount of jewelry. The police went to the room and found Browning with the jewelry. Browning was arrested and taken to Coe and Woods for a showup identification. They identified Browning as the man they saw leaving the vicinity of the crimes.

At trial, Vanessa Wolfe, Randy Wolfe's wife, testified for the State to the following. She returned to her hotel room on the day of the crimes and found Browning taking off his clothes. He had a coat, which was either on the floor or on the bed. On the bed was a lot of jewelry with tags, which she helped cut off. Browning asked Vanessa to help him get rid of some of the jewelry and said he thought he had just killed somebody. She helped Browning by throwing the tags and his hat in a nearby dumpster. Browning gave her a knife to dispose of. Instead, she put the knife in a pizza box in a closet under the stairs. The officers assigned to Browning's case testified that they retrieved all of this evidence from the places that Vanessa described. Randy Wolfe also testified that when he went into his hotel room, Browning was sitting on the bed and said that he just robbed a jewelry store and thought that he had killed a man. Investigators found Browning's fingerprints in the jewelry store.

Browning was convicted, pursuant to a jury trial, of first-degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon, burglary, and escape. At the penalty hearing, the State presented detailed evidence of his prior felonies for robbery with the use of a knife. Browning's mother testified as a mitigating witness. She stated that Browning attended private school as a child, was a very good student and president of the student council, and was very athletically inclined, winning medals in cross-country. She had marital problems, and she and Browning moved to Washington, D.C., where he worked as a doorman for the United States Congress and took paralegal classes at the Library of Congress. After Browning left high school, she had not had much contact with him, but she knew that he was very remorseful for the crimes. Browning spoke in allocution and stated that his involvement with drugs was the reason he was implicated in the crimes. He apologized for the pain that the Elsen and Browning families had suffered. He stated that he did not want to die and that he was innocent.

The jury found five aggravating circumstances: the murder was committed while Browning was engaged in a burglary; the murder was committed while he was engaged in a robbery; he was previously convicted of a felony involving the use or threat of violence; the murder was committed while he was under a sentence of imprisonment; and the murder involved depravity of mind. The jury did not find any mitigating circumstances and returned a sentence of death.

This court affirmed Browning's conviction and sentence.¹ In May 1989, he timely filed his first petition for post-conviction relief. He filed a supplemental petition the next month. In June 1996, he filed an amended petition, and in October 1999, he filed a revised second amended petition. The district court conducted an evidentiary hearing in 1999 and dismissed the petition on December 7, 2001.² This appeal followed.

DISCUSSION

Applicable legal standards for review of this case

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.³ He is not entitled to such a hearing if the factual allegations are belied or repelled by the record.⁴ The petitioner has the burden of establishing the factual allegations in support of the petition.⁵ Also, an appellant must "present relevant authority and cogent argument; issues not so presented need not be addressed by this court."⁶

A claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review.⁷ 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.⁸ To show prejudice, the claimant must show a reasonable probability that but for counsel's errors the result of the proceeding would have been different.⁹ Judicial review of a lawyer's representation is highly deferential, and the claimant must overcome the presumption that a challenged action might be considered sound strategy.¹⁰ To establish prejudice for a claim of ineffective assistance of appellate counsel, the claimant must demonstrate that an omitted issue would have had a reasonable probability of success on appeal.¹¹

Ineffective assistance of trial counsel

Browning claims first that his trial counsel failed to properly investigate the facts of this case. Browning largely fails to specify what evidence would have been revealed by additional investigation and how the lack of any evidence prejudiced him. He does claim that counsel failed to investigate the possibility that a Cuban man committed the crimes, but this claim is without merit. At the evidentiary hearing, trial counsel stated that the defense theory was that a Cuban man, a friend of the Wolfes', committed the crimes. Counsel sent his investigator to the streets to find out anything he could about this man. In addition, counsel presented a witness at trial who testified that he saw a Cuban man walking down the street near the crime scene around the time of the crimes.

Browning contends that his counsel was ineffective in failing to rebut the State's theory that Browning committed the robbery to bail his girlfriend, Marcia Gaylord, out of jail so she could prostitute herself and give him the proceeds to purchase drugs. Browning claims that counsel failed to present Gaylord's jail records showing that she was not in jail at the time of the crimes. At trial, counsel challenged the State's theory of motive, arguing to the jury that there had been "no testimony by a custodian of records or anyone from the Clark County Detention Center that Marcia Gaylord was in custody." The prosecution countered that it had presented other testimony that she was in jail. We conclude that even if counsel could have proven that Gaylord was not in jail on the afternoon of the crimes, Browning does not show that he was prejudiced. He concedes that Gaylord was released from jail only that morning. Moreover, Browning's precise motive for the crimes was not crucial to the State's case. Next, Browning claims that trial counsel failed to interview several key witnesses, including Officer Gregory Branon, the first officer on the crime scene. Officer Branon testified at trial that he received from the dying Elsen a description of the killer as a "black male adult in his late twenties, wearing a blue baseball cap, ... and hair described as a shoulder length jeri-type curl." But Browning's hair was not a jeri-curl when he was arrested a short time later. In closing argument, the prosecutor argued that it was understandable if a white person, such as the...