Chappell v. State

• Decision Date: 18 June 2015
• Docket Number: No. 61967,61967
• Citation: Chappell v. State, No. 61967 (Nev. Jun 18, 2015)
• Parties: JAMES MONTELL CHAPPELL, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

JAMES MONTELL CHAPPELL, Appellant,
v.
THE STATE OF NEVADA, Respondent.

No. 61967

SUPREME COURT OF THE STATE OF NEVADA

June 18, 2015

An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123

ORDER OF AFFIRMANCE

This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.

Appellant James Montell Chappell went to the home of Deborah Panos, his ex-girlfriend and the mother of his three children, sexually assaulted her, stabbed her to death with a kitchen knife, and left the home with some of her property. A jury convicted Chappell of burglary, robbery, and first-degree murder and sentenced him to death. This court affirmed Chappell's conviction and death sentence on direct appeal.Chappell v.State (Chappell I), 114 Nev. 1403, 972 P.2d 838 (1998). Chappell sought post-conviction relief in the district court and was granted a new penalty hearing. This court affirmed the judgment of the district court.Chappell v.State (Chappell II), Docket No. 43493 (Order of Affirmance, April 7, 2006). At the conclusion of the second penalty hearing, the jury again sentenced Chappell to death. This court affirmed the sentence on appeal.Chappell v.State (Chappell III), Docket No. 49478 (Order of Affirmance, October 20, 2009). In this appeal from the denial of his first post-conviction petition for a writ of habeas corpus following the

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second penalty hearing, Chappell argues that the district court erred in denying his claims of ineffective assistance of counsel.¹

Ineffective assistance of counsel

Chappell argues that the district court erred by denying numerous claims of ineffective assistance of trial and appellate counsel without conducting an evidentiary hearing."A claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review,"Evans v.State, 117 Nev. 609, 622, 28 P.3d 498, 508 (2001), but the district court's purely factual findings are entitled to

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deference.Lara v.State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004). Under the two-part test established by the United States Supreme Court in Strickland v.Washington, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) prejudice.466 U.S. 668, 687-88, 694 (1984); Kirksey v.State, 112 Nev. 980, 987-88, 998, 923 P.2d 1102, 1107, 1114 (1996). To prove ineffective assistance of appellate counsel, a petitioner must demonstrate that counsel's performance fell below an objective standard of reasonableness, and but for counsel's errors, the omitted issue would have had a reasonable probability of success on appeal.Kirksey, 112 Nev. at 998, 923 P.2d at 1114."The defendant carries the affirmative burden of establishing prejudice."Riley v.State, 110 Nev. 638, 646, 878 P.2d 272, 278 (1994). A court need not consider both prongs of the Strickland test if a defendant makes an insufficient showing on either prong.Strickland, 466 U.S. at 697. An evidentiary hearing is warranted only if a petitioner raises claims supported by specific factual allegations that are not belied by the record and, if true, would entitle him to relief.See Hargrove v.State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

Failure to present testimony

Chappell contends that the district court erred in denying his claim that trial counsel were ineffective for failing to introduce testimony from James Ford and Ivri Morrell. We disagree. Chappell could not demonstrate that, had he been able to introduce the testimony of Ford and Morrell, he would not have been sentenced to death, because the subject matter of Ford and Morrell's proffered testimony was substantially covered by other witnesses. In particular, Benjamin Dean, Fred Dean, and Mira King discussed the early stages of Chappell and Panos'

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relationship. King even provided broader testimony than could be provided by Ford and Morrell. Further, Ford's and Morrell's proffered testimony about the beginning of the relationship was not compelling considering the trajectory that the relationship eventually followed: Chappell physically abusing, threatening, and eventually murdering Panos. Therefore, the district court did not err in denying this claim without conducting an evidentiary hearing.

Failure to obtain an expert

Chappell argues that the district court erred in denying his claim that trial counsel were ineffective for failing to obtain an expert who could have testified that pre-ejaculatory fluid may contain sperm, which he claims would have reinforced his testimony instead of discrediting it. We conclude that although counsel were deficient, Chappell failed to demonstrate that he was prejudiced. The presence of sperm was not the only evidence that supported the sexual assault aggravating circumstance and undermined Chappell's testimony. Chappell had a history of abusing Panos, wrote hostile and threatening letters to her, and threatened her in court. Before his unexpected release from custody, Panos had planned to move somewhere Chappell could not find her. Consequently, she became terrified when she learned of Chappell's release. While Chappell was at Panos' home, she attempted to engage in subterfuge to escape. In addition, her body bore injuries indicating that she had been beaten 15 to 30 minutes before her murder. Given this evidence, Chappell did not demonstrate a reasonable probability that, but for counsel's failure to introduce expert testimony on this issue, the jury would not have found that the murder was committed during the course of a sexual assault.

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Therefore, the district court did not err in denying this claim without conducting an evidentiary hearing.

Positron emission tomography ("P.E.T.") scan

Chappell argues that the district court erred in denying his claim that trial counsel were ineffective for failing to obtain a P.E.T. scan where there was some evidence that his mother was addicted to drugs and alcohol. He contends that a scan could have revealed indicia of Fetal Alcohol Spectrum Disorders, which could cause physical, learning, and behavioral problems. We conclude that the district court did not err in denying this claim without conducting an evidentiary hearing. At the second penalty hearing, trial counsel introduced expert testimony that Chappell had a low IQ as well as cognitive deficits, which had been supported by psychological testing and Chappell's school records. As his cognitive deficits had been extensively documented and the jury nevertheless concluded that they were not sufficiently mitigating, Chappell failed to demonstrate that counsel were deficient in not obtaining a P.E.T. scan or that he would have benefited from a more thorough investigation.See Molina v.State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004) ("Where counsel and the client in a criminal case clearly understand the evidence and the permutations of proof and outcome, counsel is not required to unnecessarily exhaust all available public or private resources."); see also State v.Powell, 122 Nev. 751, 759, 138 P.3d 453, 458 (2006) ("An attorney must make reasonable investigations or a reasonable decision that particular investigations are unnecessary." (citing Strickland, 466 U.S. at 691 (1984))).

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Failure to prepare Dr.Lewis Etcoff to testify

Chappell argues that the district court erred in denying his claim that trial counsel were ineffective for failing to prepare psychologist Dr. Lewis Etcoff's testimony. He contends that Dr. Etcoff's testimony could have been more persuasive if he had not relied solely on Chappell's statements but reviewed other evidence.² We conclude that Chappell failed to demonstrate that had counsel better informed Dr. Etcoff the jury would not have found the sexual assault aggravator. Dr. Etcoff provided context for Chappell's abuse in his relationship with Panos and explained how his cognitive deficits contributed to the murder. Therefore, cross-examination about further abuse and problems in the relationship did not undermine his premise. Regardless of how informed the psychologist's opinion could have been, Chappell failed to show that it would have been persuasive in light of the remaining evidence contradicting Chappell's testimony. The evidence demonstrated that Panos ended her relationship with Chappell, Chappell threatened to kill her, he absconded from the parole office, snuck into her window, beat Panos, and killed her. Given this evidence, Dr. Etcoff's opinion, even if it was as informed as Chappell wanted it to be, would not have been persuasive enough to overcome the

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great weight of evidence demonstrating that any sexual conduct that occurred on the day of the murder was not consensual.

Failure to prepare Dr.William Danton to testify

Chappell argues that better preparation could have rendered clinical psychologist Dr. William Danton's testimony more convincing. He asserts that Dr. Danton's testimony was unpersuasive because he (1) only briefly met with Chappell, (2) contradicted Dr. Etcoff s opinion on whether Chappell could remember the murder, and (3) conceded that it was possible that Chappell forced Panos to have sex. We conclude...