Doyle v. State, 33216.

• Decision Date: 03 February 2000
• Docket Number: No. 33216.,33216.
• Citation: 995 P.2d 465,116 Nev. 148
• Parties: Anthony Lavon DOYLE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

995 P.2d 465

116 Nev. 148

Anthony Lavon DOYLE, Appellant, v. The STATE of Nevada, Respondent.

No. 33216.

Supreme Court of Nevada.

February 3, 2000.

Rehearing Denied March 28, 2000.

Scott L. Bindrup, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

BEFORE YOUNG, AGOSTI and LEAVITT, JJ.

OPINION

PER CURIAM.

The State tried and convicted appellant Anthony Lavon Doyle of first-degree murder, conspiracy to commit murder, first-degree kidnapping and sexual assault. The jury returned a sentence of death. On direct appeal, we reversed Doyle's conviction for sexual assault, but affirmed the remaining convictions and sentence of death. Doyle thereafter petitioned the district court for post-conviction relief and alleged that his trial counsel were ineffective on numerous grounds. After conducting an evidentiary hearing, the district court denied the petition. This appeal followed.

On appeal, Doyle alleges that the district court erred in determining that trial counsel were not ineffective for (1) failing to seek suppression of Doyle's statement to police; (2) failing to seek suppression of evidence recovered during a search of Doyle's residence; (3) failing to object to the admission into evidence of a pair of stained denim pants; (4) failing to object to the admission and projection display of color autopsy photographs; (5) failing to request a jury instruction or object to the instruction given on sexual assault; and (6) failing to adequately research issues in preparation for trial. Doyle also argues that the district court erred in determining that reversal is not warranted on the basis of cumulative error caused by ineffective trial counsel. We reject Doyle's arguments and affirm.

FACTS

A full explanation of the facts is contained in our opinion resulting from Doyle's direct appeal. See Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996). As explained therein, on January 16, 1994, the nude body of twenty-year-old Ebony Mason was discovered in a desert area of Clark County, Nevada. Mason had been beaten and strangled to death, and a four-inch twig protruded from her rectum. Doyle in association with two co-defendants was charged with one count each of first-degree murder, conspiracy to commit murder, first-degree kidnapping and sexual assault. Doyle pleaded not guilty to all charges. The State filed notice of intent to seek the death penalty. The matter proceeded to a jury trial commencing January 3, 1995. Doyle presented a defense of "mere presence." The jury returned a guilty verdict as to each count. Following a penalty hearing, the jury found three aggravating circumstances and no mitigating circumstances sufficient to outweigh the aggravating circumstances and imposed a sentence of death. The district court additionally sentenced Doyle to consecutive life terms of imprisonment for first-degree kidnapping and sexual assault, and a concurrent six-year term of imprisonment for conspiracy to commit murder.

On direct appeal, this court concluded that insufficient evidence was adduced to show that sexual penetration occurred prior to Mason's death, and we reversed Doyle's conviction for sexual assault. Doyle, 112 Nev. at 895-900, 903, 921 P.2d at 912-15, 916. However, we rejected Doyle's remaining contentions and affirmed his remaining convictions and sentence of death. Id. at 903, 921 P.2d at 916.

On June 26, 1997, Doyle filed in the district court a proper person post-conviction petition for a writ of habeas corpus claiming ineffective assistance of counsel. Appointed counsel filed documents in support of the petition. Counsel argued before the district court that Doyle's trial counsel were ineffective for (1) failing to seek suppression of Doyle's statement to police; (2) failing to seek suppression of evidence recovered during a search of Doyle's residence; (3) failing to object to the admission into evidence of the pair of stained denim pants; (4) failing to object to the admission and projection display of color autopsy photographs depicting injuries suffered by Mason; and (5) failing to request a jury instruction or object to the instruction given on sexual assault. Counsel also argued that reversal was warranted on the basis of cumulative error caused by ineffective trial counsel.

On January 26, 1998, and July 8, 1998, the district court held an evidentiary hearing and heard argument on Doyle's petition. The district court then denied the petition. Doyle filed a timely appeal.

DISCUSSION

Pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on a claim of ineffective counsel, a defendant must show (1) that counsel's performance was deficient, i.e., it fell below an objective standard of reason-ableness, and (2) that the deficient assistance prejudiced the defense, i.e., but for counsel's errors, the result of trial would probably have been different. Dawson v. State, 108 Nev. 112, 115, 825 P.2d 593, 595 (1992) (citing Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052). A court may consider the two test elements in any order and need not consider both if the defendant makes an insufficient showing on either one. Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).

I. Failure to challenge the admissibility of Doyle's statement to police as tainted by a pretextual arrest.

Doyle contends that the district court applied the wrong standard in determining that Doyle's trial counsel were not ineffective for failing to seek suppression of Doyle's post-arrest, post-Miranda statement to police. Doyle argues that the district court should have applied the standard first adopted in Alejandre v. State, 111 Nev. 1235, 1239-40, 903 P.2d 794, 796 (1995), reaffirmed in Taylor v. State, 111 Nev. 1253, 1255-57, 903 P.2d 805, 807-08 (1995), and subsequently abandoned in Gama v. State, 112 Nev. 833, 836-37, 920 P.2d 1010, 1012-13 (1996) (overruling Alejandre and Taylor), to determine whether Doyle's statement to police was tainted by an impermissibly pretextual arrest made by Doyle's parole officer. Doyle contends that under Alejandre's test, a motion to suppress his statement would have been meritorious, and thus, trial counsel were ineffective for failing to make such a motion. We conclude that this contention lacks merit.

When an ineffective assistance of counsel claim is based upon counsel's failure to file a motion to suppress a confession or a motion to suppress evidence allegedly obtained in violation of the Fourth Amendment, "the prejudice prong must be established by a showing that the claim was meritorious and that there was a reasonable likelihood that the exclusion of the evidence would have changed the result of a trial." Kirksey, 112 Nev. at 990, 923 P.2d at 1109.

In Alejandre, we recognized that two competing tests had emerged to determine whether a stop by police which is alleged to be pretextual violates the Fourth Amendment: (1) the "would" test, under which a stop is impermissibly pretextual unless a reasonable officer would have made the stop absent the invalid purpose, and (2) the "could" test, under which a stop is valid so long as the officer was legally authorized to make the stop, even if the officer would have ignored the underlying valid justification for the stop but for his other suspicions. We then adopted the "would" test, concluding that it was supported by persuasive reasoning. Alejandre, 111 Nev. at 1239-40, 903 P.2d at 796; see also Taylor, 111 Nev. at 1257, 903 P.2d at 807-08.

In Gama, this court recognized that the "would" test as applicable to claims of pre-text was discredited by the Supreme Court's ruling in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Gama, 112 Nev. at 836,920 P.2d at 1012-13. In Whren, the Court held that the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. Whren, 517 U.S. at 808-19,116 S.Ct. 1769. In so doing, the Court recognized that subjective intentions play no role in ordinary probable-cause Fourth Amendment analysis.¹Id. at 813, 116 S.Ct. 1769. Based on Whren's holding, this court in Gama stated that it was constrained to overrule Alejandre and Taylor to the extent that each required application of the "would" test to pretext claims under the Fourth Amendment and the Nevada Constitution, article 1, section 18 (protecting against unreasonable seizures and searches). Gama, 112 Nev. at 836,920 P.2d at 1013. We then determined that the "could" test was the proper test to apply where a claim of pretext is made. Id. at 836-37, 920 P.2d at 1013.

Doyle argues that Alejandre was the controlling law at the time of his arrest and that Gama applies prospectively only. Doyle acknowledges that Alejandre was not decided until October 4, 1995, which was after Doyle's January 1995 trial. Nevertheless, he argues that the Alejandre "would" test "did not materialize out of thin air," as this court had previously recognized a "would" test in Hatley v. State, 100 Nev. 214, 678 P.2d 1160 (1984), and this test was already recognized in other jurisdictions as indicated in Alejandre. Therefore, he contends that trial counsel should have recognized the existence of legally-cognizable grounds to support a motion to suppress. Further, Doyle argues that if the issue had been preserved, appellate counsel could have raised it after Alejandre was decided.

We conclude that Doyle is mistaken in his contention that Alejandre merely restated the law as it was declared in Hatley. In Hatley, the appellant claimed in a ...