Dawson v. State

• Decision Date: 24 January 1992
• Docket Number: No. 21799,21799
• Citation: 825 P.2d 593,108 Nev. 112
• Parties: Henry Daniel DAWSON, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 593

825 P.2d 593

108 Nev. 112

Henry Daniel DAWSON, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 21799.

Supreme Court of Nevada.

Jan. 24, 1992.

Cherry & Bailus, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland, Chief Deputy Dist. Atty., and William P. Henry, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant Henry Daniel Dawson ("Dawson") was convicted of first degree murder and sentenced to death. We affirmed the conviction and remanded for a new penalty determination. See Dawson v. State, 103 Nev. 76, 734 P.2d 221 (1987). After his second penalty hearing, Dawson was sentenced to death, and we affirmed the sentence. See Dawson v. State, Docket No. 18558, Order Dismissing Appeal, October 21, 1988, 104 Nev. 855, 809 P.2d 601. Dawson filed a proper person petition for post-conviction relief, alleging that he had received ineffective assistance of counsel and requesting the appointment of counsel. The district court denied the request for counsel and dismissed the petition. We directed the district court to hold an evidentiary hearing to resolve the factual issues raised in Dawson's petition and to appoint counsel to represent him during those proceedings. See Dawson v. State, Docket No. 20440, Order of Remand, November 17, 1989, 105 Nev. 1028, 810 P.2d 321. After an evidentiary hearing, the district court denied Dawson's petition for post-conviction relief. We conclude that none of Dawson's claims of ineffective assistance of counsel warrant relief. We therefore affirm the district court.

Discussion.

Claims of ineffective assistance of counsel are reviewed under the "reasonably effective assistance" standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Bejarano v. State, 106 Nev. 840, 842, 801 P.2d 1388, 1389 (1990). This standard requires the defendant to show that counsel's assistance was "deficient" and, secondly, that the deficient assistance "prejudiced" the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

More particularly, "deficient" assistance requires a showing that "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. In order to eliminate the distorting effects of hindsight, courts indulge in a strong presumption that counsel's representation falls within the broad range of reasonable assistance. If the defendant shows that counsel's performance was deficient, the defendant must show that, but for counsel's errors, the result of the trial would probably have been different. Id. at 694, 104 S.Ct. at 2068; Davis v. State of Nevada, 107 Nev. 600, 601-02, 817 P.2d 1169, 1170 (1991).

We now address, based on the above standards, the various claims of ineffective assistance of counsel.

Failure to properly impeach Shepard's husband.

On March 7, 1985, the body of Leslie Shepard ("Shepard") was found behind Caesar's Palace. She was almost nude and had been bludgeoned to death by a soft-drink canister. At approximately 5:50 a.m. that morning, Shepard reported to work at a Stop 'N' Go market. She disappeared shortly thereafter. At trial, Shepard's husband testified that he fought with his wife the night before her death, and that after their fight, he went "bar hopping" with a friend. He further testified that he had physically injured Shepard several times during their marriage. Dawson's counsel attempted to paint Shepard's husband as the murderer.

Dawson first contends that his counsel failed to properly impeach Shepard's husband as to his heavy substance abuse and his propensity for violence based on his criminal history. The record, however, reveals that Dawson makes unfounded statements about the husband's substance abuse and that Mr. Shepard's "criminal history" (arrest reports) does not show a "propensity" for violence. ¹

Dawson secondly contends that his counsel failed to properly impeach Shepard's husband when Mr. Shepard testified that his car was red. Dawson asserts that the police report indicates that Mr. Shepard's car was burgundy, the same color as Dawson's car. At the evidentiary hearing, however, Dawson stated his car was not burgundy but was a white-over-maroon, 1971 two-door Lincoln Continental.

Even if counsel's failure to impeach Mr. Shepard's testimony about the color of his car constitutes deficient performance, the overwhelming evidence in this case undermines any showing by Dawson that he was prejudiced by such deficient performance. A trial witness who knew Dawson placed him at the scene of the abduction around the time Shepard disappeared. According to that testimony, Dawson was driving alone in his car as he pulled into the Stop 'N' Go market. He pulled up to the gas booth which Shepard tended, stopped for about five minutes, and drove away with a white passenger who had brownish, shoulder-length hair and wore a blue shirt. Pictures of Shepard's body were introduced at trial. Shepard was also identified as a white female with brownish-blond, shoulder-length hair. Shepard wore a blue Stop 'N' Go shirt as part of her work uniform. After leaving the Stop 'N' Go market, Dawson ran a red light and headed toward the back of Caesar's Palace. Another witness, an employee of Caesar's Palace, testified at trial that she saw a "two-toned car" speeding away from the back of Caesar's Palace at approximately the same time that Shepard was killed.

Furthermore, the police searched Dawson's car and found two buttons, a small piece of belt and some hair samples. A witness identified one of the buttons as having characteristics identical to the remaining buttons on Shepard's blouse. The belt was identified as part of Shepard's belt. The hair samples had similar characteristics as hair samples taken from Shepard's body. Hence, we conclude that Dawson has failed to show that he was prejudiced by counsel's failure to impeach Mr. Shepard when he testified about the color of his car.

Accordingly, these impeachment contentions fail the standards set forth in Strickland.

Failure to conduct a proper investigation.

Dawson next argues that his counsel failed to conduct a proper investigation into a "plausible line of defense," namely, that another black man named Warren Cowart murdered Shepard. He contends that the charge against appellant was a case of mistaken identity. Dawson's support for this argument is that approximately one month before Shepard's death, Cowart asked Shepard out on a date. She declined. He got angry and threw a beer can which hit her in the back. He later pled guilty to misdemeanor assault charges. At the evidentiary hearing, counsel noted that he was aware of this altercation, but that his trial strategy nevertheless focused on the "husband-did-it" theory. After review of the record, we conclude that counsel conducted a reasonable investigation into the Cowart incident and thereafter reasonably pursued another line of defense. Strategic choices made by counsel after thoroughly investigating the plausible options are almost unchallengeable. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Accordingly, we find that counsel's performance did not fall below the reasonableness standard enunciated in Strickland. ²

Failure to object to a jury instruction.

Dawson contends that during the penalty phase of his trial, counsel failed to properly argue that NRS 200.030(4) ³ does not mandate that the jury impose the death penalty, even when aggravating circumstances outweigh mitigating circumstances. He further argues that his counsel failed to point out that Dawson was not required to establish any mitigating circumstances in order to receive a sentence less than death.

The jury instruction which Dawson now contends should have been objected to at the penalty hearing provided:

The jury may impose a sentence of death if it finds at least one aggravating circumstance has been established beyond a reasonable doubt and further finds that there are not mitigating circumstances sufficient to outweigh the aggravating circumstances found.

Otherwise, the punishment imposed shall be imprisonment in the State Prison for life with or without the possibility of parole.

(Emphasis added.)

Recently, we discussed this exact instruction and found that the word "may" is commonly understood by reasonable jurors as a permissive word that does not mandate a particular action. Riley v. State, 107 Nev. 205, ---, 808 P.2d 551, 558-59 (1991). Thus the jury was properly informed that the imposition of the death sentence was not compulsory, even if aggravating circumstances outweighed mitigating circumstances. Id; see also Bennett v. State, 106 Nev. 135, 144, 787 P.2d 797, 803 (1990) ("Nevada's statute does not require the jury to impose the death penalty under any circumstances, even when the aggravating circumstances outweigh the mitigating circumstances."), cert. denied, 498 U.S. 925, 111 S.Ct. 307, 112 L.Ed.2d 260 (1991).

Dawson also alleges that his counsel was ineffective for failing to object to the following aggravating circumstances instruction on the ground that it was unconstitutionally overbroad:

You are instructed that the following factors are circumstances by which murder of the first degree may be aggravated:

1. The murder was committed while the defendant was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit Kidnapping in the First Degree.

2. The murder was committed while the defendant was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit sexual assault.

(Emphasis added.) Dawson argues that without a further definition, this instruction merely repeats a crucial element of the underlying offense. He contends that this aggravating circumstance actually "refers to killings that occur when an individual attempts...