Hall v. State, 81994

Citation81994
Case DateDecember 08, 2022
CourtSupreme Court of Nevada

BRYAN LEE HALL, Appellant,
v.

THE STATE OF NEVADA, Respondent.

No. 81994

Supreme Court of Nevada

December 8, 2022


UNPUBLISHED OPINION

Karen A. Connolly, Ltd. Attorney General/Carson City

ORDER AFFIRMING IN PART, REVERSING IN PART AND REMANDING

This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Appellant Bryan Hall robbed and murdered Bradley Flamm at a Las Vegas resort and casino. Hall testified that he killed Flamm because Flamm made offensive comments about his sexual history with Hall's wife and the paternity of Hall's child. A jury found Hall guilty of robbery and first-degree murder and sentenced him to death for the murder. This court affirmed the convictions and death sentence on appeal. See Hall v. State, No. 62663, 2015 WL 6447296 (Nev. Oct. 22, 2015) (Order of Affirmance). Hall filed a timely, first postconviction petition for a writ of habeas corpus. The district court denied the petition without conducting an evidentiary hearing.

Ineffective assistance of counsel

Hall argues the district court erred in denying his claims of ineffective assistance of trial and appellate counsel.[1] To prove ineffective

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assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Both components of the inquiry must be shown. Strickland, 466 U.S. at 697. An evidentiary hearing is required when the petitioner raises claims supported by specific facts that are not belied by the record and that, if true, would entitle the petitioner to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

Juvenile records

Hall argues that the district court erred in denying his claim that trial and appellate counsel failed to adequately challenge the State's use of his California juvenile records during the penalty phase of his trial. He contends that trial and appellate counsel should have challenged the State's introduction of his juvenile records based on a California law prohibiting the release of juvenile records to unauthorized persons.[2] Hall alleges that when the State obtained his juvenile file, a notice was attached to the records that cited Cal. Welf. & Inst. Code § 827, which requires a

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party authorized to inspect juvenile records to petition the juvenile court for an order before further disclosure. See Lorenza P. v. Superior Court, 242 Cal.Rptr. 877, 879 (Ct. App. 1988) (explaining that defendant could not obtain juvenile records by a subpoena; instead, she had "to petition the juvenile court to review the records in camera to determine which, if any, may be disclosed"). Because the State did not petition for a juvenile court order permitting further release of his juvenile records, Hall alleges that the State was not authorized to disseminate the records at trial. See People u. Stewart, 269 Cal.Rptr.3d 687, 701 (Ct. App. 2020) (providing that "neither a prosecutor nor any other person authorized to inspect without a court order is permitted to disseminate confidential information in juvenile files to a person not so authorized").

Regarding the psychological portions of his juvenile file, Hall contends that, even if the State properly obtained the records, trial and appellate counsel should have challenged the use of psychological evaluations against him on Fifth Amendment grounds. Hall alleges that, as a juvenile, he did not initiate or voluntarily undergo a court-ordered psychological evaluation, and the State affirmatively used his un-Mirandized[3] statements against him in the penalty hearing, and not as rebuttal of a mental status defense. Furthermore, Hall contends that the district court erred in denying his claim of prosecutorial misconduct related to the State's use of his juvenile psychological records-e.g., telling the jury he had been assessed as a sexual sadist-and the State concedes that the psychologist did not make that diagnosis.

The Supreme Court has found that the use of court-ordered psychological examinations against a defendant may violate the Fifth

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Amendment in some circumstances. Compare Estelle v. Smith, 451 U.S. 454, 468 (1981) ("A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding."), with Buchanan v. Kentucky, 483 U.S. 402, 423-24 (1987) (explaining that introducing portions of a psychiatric report, which the defense jointly requested, to rebut defendant's mental status defense did not violate the Fifth Amendment), and Penry v. Johnson, 532 U.S. 782, 794-95 (2001) (concluding that the admission of a defense-requested psychiatric report during the penalty phase of trial, which was prepared before trial for an unrelated rape charge, did not warrant habeas relief). Likewise, this court has explained that "[g]enerally, the State may not use a healthcare provider to introduce a defendant's un-Mirandized statements from a court-ordered psychiatric evaluation." Pimentel v. State, 133 Nev. 218, 228, 396 P.3d 759, 768 (2017); see also Brown v. State, 113 Nev. 275, 281, 289, 934 P.2d 235, 240, 245 (1997) (concluding that the consideration at sentencing of defendant's unwarned statements made to a psychiatrist in a court-ordered examination "violates the 'fair play' rules . . . and the Fifth Amendment concerns set forth in Estelle, and constitute[] reversible error"). Although trial and appellate counsel challenged the use of Hall's juvenile psychological records under Redmen v. State, 108 Nev. 227, 234, 828 P.2d 395, 400 (1992), overruled on other grounds by Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995), which provided that "psychiatric evidence purporting to predict the future dangerousness of a defendant is highly unreliable and, therefore, inadmissible at death penalty sentencing hearings," given the authority above, counsel's decision to forgo a Fifth Amendment challenge may have

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fallen below an objective standard of reasonableness and resulted in prejudice.

In denying this ineffective-assistance-of-counsel claim without conducting an evidentiary hearing, the district court overlooked the factual issues concerning the California proceedings and the reasonableness of trial and appellate counsel's investigation and litigation decisions. Cf. Johnson v. State, 117 Nev. 153, 161, 17 P.3d 1008, 1013 (2001) (noting that an evidentiary hearing may "be of little value" when the issue presented is purely legal). We conclude that Hall alleged specific facts that are not belied by the record and that, if true, may have entitled him to relief. In particular, the factual underpinnings of trial and appellate counsel's investigation into the juvenile records and the context of the psychological evaluations exist outside the record. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225; see also Mann v. State, 118 Nev. 351, 354, 46 P.3d 1228, 1230 (2002) (providing "that [w]here something more than a naked allegation has been asserted, it is error to resolve the apparent factual dispute without granting the accused an evidentiary hearing." (internal quotation marks and alteration omitted)). While we express no opinion as to the merits of the issues discussed above, we conclude that an evidentiary hearing is necessary to fully assess trial and appellate counsel's performance and any potential prejudice that resulted. Accordingly, we reverse the district court's order as to these ineffective-assistance-of-counsel claims and remand for an evidentiary hearing to consider in the first instance whether Hall can demonstrate deficient performance and prejudice. At the evidentiary hearing, the district court should focus on whether trial and appellate counsel's performance was deficient in investigating and addressing the State's procurement and use of his juvenile file and challenging the

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admissibility of the juvenile psychological records. In assessing any potential prejudice during the penalty phase, the district court should consider the weight of the juvenile evidence considering the other evidence presented and the extent to which the State relied on the juvenile evidence.

Provider-patient privilege

Hall argues that the district court erred in denying his claim that trial and appellate counsel should have challenged the introduction of his juvenile psychological records under California and Nevada privilege statutes. We conclude this argument lacks merit.

Even assuming the records were privileged under California law, he has not shown the documents were protected from admission in Nevada. See Restatement (Second) of Conflict of Laws § 139(2) (1971) (providing that "[e]vidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted"). As to Nevada, Hall contends that his psychological records were protected by the psychologist-patient privilege. The district court found that, even if the records were confidential, the "court-ordered examination" exception under NRS 49.213(7) applied to Hall's statements. And Hall concedes that no Nevada cases support his contention that the district court erroneously applied the exception. Accordingly, he has not shown deficient performance based on counsel's failure to assert the privilege. See Steinhorst v. Wainwright, ...

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