Guy v. State

• Citation: 373 P.3d 919 (Table)
• Decision Date: 24 February 2011
• Docket Number: No. 50350.,50350.
• Parties: Curtis GUY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

373 P.3d 919 (Table)

Curtis GUY, Appellant
v.
The STATE of Nevada, Respondent.

No. 50350.

Supreme Court of Nevada.

Feb. 24, 2011.

Attorney General/Carson City

Clark County District Attorney

Law Office of Lisa Rasmussen

ORDER OF AFFIRMANCE

This is an appeal from the denial of a post-conviction petition for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.

Guy was convicted of first-degree murder and sentenced to death for his role in the shooting death of Ceasor Evans during a dispute over cocaine. We affirmed his conviction and sentence on direct appeal. Guy v. State, 108 Nev. 770, 786, 839 P.2d 578, 588 (1992). In 1994, Guy filed a post-conviction petition for a writ of habeas corpus in the district court. Over 13 years later, the district court denied Guy's petition. This appeal followed.

In this appeal from the denial of his first post-conviction petition for a writ of habeas corpus, Guy claims that the district court erred by denying his claims that: (1) the jury's consideration of two invalid aggravating circumstances requires a new penalty hearing; (2) trial counsel was ineffective for failing to (a) challenge inadequacies in the indictment, (b) raise objections to the State's vindictive prosecution, (c) communicate with him regarding plea offers from the State, (d) conduct effective voir dire, (e) object to improper jury instructions, (f) request certain instructions, (g) make a sufficient record to support motions for a directed verdict, (h) investigate the disposition of the codefendant's cases, (i) investigate and present mitigation evidence at the penalty hearing, (j) challenge the admission of information in PSI reports, and (k) challenge prosecutorial misconduct; (3) appellate counsel was ineffective for failing to raise claims on appeal or “federalize” the issues that were raised; and (4) considered cumulatively, the numerous trial errors and deficiencies in the performance of counsel warrant reversal of his conviction and sentence. We conclude that Guy's claims are without merit and affirm the judgment of the district court.

I. Invalid aggravating circumstances

Guy claims that the district court erred by refusing to consider mitigating evidence presented during post-conviction proceedings as part of the reweighing process and concluding that the jury's consideration of two invalid aggravating circumstances was harmless beyond a reasonable doubt. The district court did not err.

In McConnell v. State, 120 Nev. 1043, 1069, 102 P.3d 606, 624 (2004), this court “deem[ed] it impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated.” McConnell “applies in cases where the defendant was charged with alternative theories of first-degree murder and a special verdict form failed to specify which theory or theories the jury relied upon to convict.” Bejarano v. State, 122 Nev. 1066, 1079, 146 P.3d 265, 274 (2006) ; see also Archanian v. State, 122 Nev. 1019, 1039, 145 P.3d 1008, 1022–23 (2006). Here, McConnell is implicated because Guy was charged with first-degree murder based on three theories—(1) he aided and abetted his codefendant, Larry Pendleton, in murdering Evans; (2) he and Pendleton conspired to rob Evans who was killed in furtherance of the conspiracy; and/or (3) Evans was killed during a robbery perpetrated by Guy and Pendleton—and the jury verdict did not specify upon which theory it relied in finding Guy guilty of first-degree murder. Therefore, the robbery and pecuniary gain aggravators are invalid. See Bejarano, 122 Nev. at 1081, 146 P.3d at 275.

However, Guy's McConnell claim was appropriate for direct appeal and is subject to dismissal absent a showing of cause and actual prejudice. NRS 34.810(1)(b). Because McConnell was decided well after Guy's direct appeal was final and it has retroactive application, Bejarano, 122 Nev. at 1078, 146 P.3d at 274, Guy established good cause to raise this claim in a post-conviction petition. However, the district court determined that Guy failed to show prejudice. We conclude that the district court did not err.

In order to uphold a death sentence after striking an invalid aggravating factor, this court must reweigh. Archanian, 122 Nev. at 1040, 145 P.3d at 1023. A McConnell error is harmless if, after reweighing, this court can conclude beyond a reasonable doubt that the jury would have found the defendant death eligible and would have selected the death penalty absent the erroneous aggravating circumstance. See Hernandez v. State, 124 Nev. 978, 986, 194 P.3d 1235, 1240–41 (2008) ; Bejarano, 122 Nev. at 1082, 146 P.3d at 276; Leslie v. Warden, 118 Nev. 773, 784, 59 P .3d 440, 448 (2002).

Absent the invalid McConnell aggravators, two remain: (1) Guy was under a sentence of imprisonment at the time of the murder and (2) he had previously been convicted of a felony involving the use or threat of violence to the person of another. These aggravators are supported by evidence that Guy was on parole for a prior burglary conviction at the time of the murder and he had previously been convicted of the armed robbery and attempted murder of Richard French. The jury did not specify which mitigating circumstances it found but determined that there were no mitigating circumstances sufficient to outweigh the aggravating circumstances and selected the death penalty.

Of the four aggravators found by the jury, the two invalid aggravators were less compelling, and the mitigating evidence was of limited persuasiveness. Guy's claim that this court should consider mitigating evidence gathered after trial and presented for the first time during post-conviction proceedings is wholly without merit. See Bejarano, 122 Nev. at 1081, 146 P.3d at 276 (“Reweighing requires us to answer the following question: Is it clear beyond a reasonable doubt that absent the invalid aggravators the jury still would have imposed a sentence of death?”); Rippo v. State, 122 Nev. 1086, 1093–94, 146 P.3d 279, 284 (2006) (striking three McConnell aggravators and reweighing, looking only to the record for mitigating evidence); Archanian, 122 Nev. at 1040–41, 145 P.3d at 1023 (same); State v. Haberstroh, 119 Nev. 173, 184 n. 23, 69 P.3d 676, 684 n. 23 (2003) (reweighing does not involve factual findings “other than those of the jury at the original penalty hearing”); Bridges v. State, 116 Nev. 752, 766, 6 P.3d 1000, 1010 (2000) (this court reweighed based on a “review of the trial record”). Accordingly, we conclude that it is beyond a reasonable doubt that absent the invalid aggravators, the jury would have found Guy eligible for the death penalty.

We also conclude that it is beyond a reasonable doubt that, absent the invalid aggravators, the jury would have sentenced Guy to death. In addition to the evidence of Guy's role in Evans' death and the aggravating evidence that Guy shot Richard French in the head at point blank range during a home-invasion robbery, the State presented overwhelming evidence of Guy's violent character. Guy had robbed Colleen Fulkerson by holding a knife to her seven-year-old son's throat. During another home-invasion robbery, Pendleton and Guy slit the throat of Jennifer Courtney to prevent her from identifying them. When Courtney escaped through a bedroom window despite having been tied up with tape, Pendleton and Guy chased her down in a vehicle and shot at her in another attempt to kill her. Additionally, Guy has numerous prior convictions: three convictions for burglary and convictions for assault with a deadly weapon, petty larceny, vagrancy prowling, attempted grand larceny, possession of a stolen vehicle, and carrying a concealed weapon. Moreover, Guy admitted to a criminal lifestyle that included about ten home-invasion burglaries per week. Guy has made multiple attempts to kill; it is only through extremely fortunate circumstances that Robert French and Jennifer Courtney survived. We conclude that the jury's selection of the death penalty in this case was not based solely on the killing of Ceasor Evans—in which Guy played a lesser role—but on his extremely violent history and character. The jury did not act improperly. McKenna v. State, 114 Nev. 1044, 1052, 968 P.2d 739, 744 (1998) (“[A] defendant's character and record are relevant to the jury's determination of the appropriate sentence for a capital crime.”).

Because Guy's death sentence was based in large measure upon his history of violence, we conclude that the elimination of the robbery and pecuniary gain aggravators would not have changed the result of trial. Therefore, Guy failed to show prejudice sufficient to overcome the procedural bars and the district court did not err in denying his claim.

II. Ineffective assistance of trial counsel

On appeal, Guy challenges the district court's denial of 11 claims of ineffective assistance of trial counsel.¹ To state a claim of ineffective assistance of counsel sufficient to invalidate a judgment of conviction, a petitioner must demonstrate that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced the defense such that there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). While we independently...