Kirksey v. State, No. 25540

Docket NºNo. 25540
Citation112 Nev. 980, 923 P.2d 1102
Case DateAugust 16, 1996
CourtSupreme Court of Nevada

Page 1102

923 P.2d 1102
112 Nev. 980
Jimmy Todd KIRKSEY, Appellant,
v.
The STATE of Nevada, Respondent.
No. 25540.
Supreme Court of Nevada.
Aug. 16, 1996.
Rehearing Denied Jan. 4, 1997.

Page 1106

[112 Nev. 981] Patricia Erickson, Las Vegas, for Appellant.

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

[112 Nev. 986] OPINION

PER CURIAM:

After instructing his attorney not to prepare or assert a defense, appellant Jimmy Todd Kirksey appeared in court on the day scheduled for trial and pleaded guilty to first-degree murder for the beating death of Michael A. Foxx. Prior to the penalty hearing before a three-judge panel, Kirksey instructed his attorney not to present mitigating evidence, challenge the aggravating factors, or make any statements to the panel on his behalf. The three-judge panel found three aggravating circumstances and sentenced Kirksey to death. Although we concluded that two of the aggravating circumstances should not have been considered, we affirmed Kirksey's conviction and sentence on direct appeal. Kirksey thereafter petitioned the district court for post-conviction relief. The district court held an evidentiary hearing and denied the petition. For reasons discussed below, we conclude that Kirksey received effective assistance of both trial and appellate counsel, and that Kirksey received a full and fair hearing on his post-conviction petition. Accordingly, we affirm.

Background

The facts surrounding the murder to which Kirksey pleaded guilty and for which he was sentenced to death are contained in our opinion resulting from Kirksey's direct appeal. See Kirksey v. State, 107 Nev. 499, 814 P.2d 1008, cert. denied, 502 U.S. 989, 112 S.Ct. 603, 116 L.Ed.2d 626 (1991).

On February 28, 1992, Kirksey, through counsel, 1 filed a petition for habeas corpus relief, alleging numerous separate issues of cumulative, prejudicial error and ineffective assistance of counsel. 2 Kirksey alleged that his trial counsel, George Kelesis (Kelesis), failed to file appropriate pretrial motions and failed to conduct a proper investigation into either the underlying crime or mitigating circumstances. Kirksey also alleged that appellate counsel failed to raise several meritorious issues.

[112 Nev. 987] The district court conducted an evidentiary hearing on February 1, 1993. Kirksey had subpoenaed ten witnesses: his trial counsel, his appellate counsel, his girlfriend, the attorneys who had represented two other individuals previously charged in connection with the crime, one of the individuals previously charged, two psychiatrists, a criminal defense attorney, and an attorney who had sought to become co-counsel in Kirksey's case. The district court heard testimony from six of the

Page 1107

witnesses, including Kelesis, and accepted an offer of proof as to the testimony of the other witnesses. The State presented no evidence at the hearing. After additional briefing by the parties, the district court denied Kirksey's petition.
DISCUSSION

I. Effective assistance of counsel

A. Trial Counsel

A claim of ineffective assistance of counsel presents a mixed question of law and fact and is therefore subject to independent review. State v. Love, 109 Nev. 1136, 1139, 865 P.2d 322, 323 (1993). This court evaluates a claim of ineffective assistance of trial counsel under the "reasonably effective assistance" test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and followed in Warden, Nevada State Prison v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). The Strickland analysis applies to both the guilt and penalty phases of a trial. 466 U.S. at 686-87, 104 S.Ct. at 2063-64; see also Paine v. State, 110 Nev. 609, 877 P.2d 1025, 1031 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 1405, 131 L.Ed.2d 291 (1995).

Under the Strickland test, two elements must be established by a defendant claiming ineffective assistance of counsel: (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; see also Dawson v. State, 108 Nev. 112, 115, 825 P.2d 593, 595 (1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1286, 122 L.Ed.2d 678 (1993). A court may consider the two test elements in any order and need not consider both prongs if the defendant makes an insufficient showing on either one. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

"Deficient" assistance of counsel is representation that falls below an objective standard of reasonableness. Dawson, 108 Nev. at 115, 825 P.2d at 595. "A fair assessment of attorney performance requires that every effort be made to eliminate the [112 Nev. 988] distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; accord Dawson, 108 Nev. at 115, 825 P.2d at 595.

In meeting the "prejudice" requirement, the defendant must show a reasonable probability that, but for counsel's errors, the result of the trial would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. When a conviction is the result of a guilty plea,

[t]he second, or "prejudice," requirement ... focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) (emphasis added); see also State v. Langarica, 107 Nev. 932, 933, 822 P.2d 1110, 1111 (1991), cert. denied, 506 U.S. 924, 113 S.Ct. 346, 121 L.Ed.2d 261 (1992). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

With these principles in mind, we address Kirksey's contentions.

1. Pretrial motion challenging the indictment

Kirksey first contends that he was denied effective assistance of counsel because counsel failed to file a pretrial petition for habeas corpus challenging the sufficiency of the evidence presented to the grand jury to establish that Foxx's death was caused by a criminal agency. 3 Kirksey argues that Kelesis' decision not to file the motion was shown to be unreasonable by the testimony of criminal defense attorney Cal Potter, who testified that he would have filed such a motion. Kirksey further contends that such a motion

Page 1108

would have been effective because the medical examiner "did not categorically state" that Foxx's death "could only have been caused by the trauma." We disagree with both contentions.

In order to hold a person for trial, a grand jury must find probable cause to believe (1) an offense has been committed (the corpus delicti); and (2) the defendant has committed the offense. NRS 172.155. Two elements are necessary to establish the corpus [112 Nev. 989] delicti: "(1) the fact of death; and (2) the criminal agency of another responsible for that death." Azbill v. State, 84 Nev. 345, 350-51, 440 P.2d 1014, 1017 (1968). "The state need not eliminate all non-criminal inferences, but there must be an inference of a criminal agency even if there are also the equally plausible non-criminal explanations." Id. at 352, 440 P.2d at 1019.

In the case at bar, Dr. Green, the chief medical examiner for Clark County, testified before the grand jury that an aneurysm may burst spontaneously, as a result of an increase in blood pressure, or as a result of trauma--such as a beating about the head with fists or feet. When asked to identify the cause of Foxx's death, Dr. Green stated:

This is a result of this ruptured aneurysm or weak spot in one of the arteries of the brain.

The rupture of that weak spot is in my opinion directly related to or is caused by the blunt trauma injury to the head.

Finally, Dr. Green testified that in his opinion Foxx's death was caused by a criminal agency.

Kelesis testified at the post-conviction evidentiary hearing that after reviewing the autopsy report and grand jury testimony he did not have any question as to the sufficiency of the evidence "[f]or purposes of an indictment." Consequently, he decided not to challenge the indictment; however, he further testified that he believed there were some issues and questions that he would have been able to argue before a jury.

Although the evidence did not rule out all possible non-criminal explanations, there was sufficient evidence for the grand jury to conclude that there was probable cause to believe Foxx's death was caused by the beating administered by Kirksey. We therefore conclude that Kelesis made an objectively reasonable decision not to challenge the indictment. Any challenge would have been unsuccessful because there was sufficient evidence indicating that the victim's death was caused by a criminal agency.

2. Pretrial petition challenging composition of grand jury

Kirksey next contends that he was denied effective assistance of counsel when counsel failed to file a pretrial petition for habeas corpus challenging the indictment based upon the under-representation of African-Americans on the grand jury. We disagree.

"[I]t is settled that a grand jury must be drawn from a cross-section of the community, and there must be no systematic and [112 Nev. 990] purposeful exclusion of an identifiable class of persons." Adler v. State, 95 Nev. 339, 347, 594 P.2d 725, 731 (1979) (holding that exclusion of persons unwilling to serve operates without regard to race, sex, status or ethnic...

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    ...3. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 4. Id. at 687, 104 S.Ct. 2052. 5. Id. at 694, 104 S.Ct. 2052. 6. Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 7. We will not revisit Leslie's independent claims that the district court abused its discretion by not sua spont......
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1080 cases
  • Walker v. Neven, Case No. 2:13-cv-01099-APG-VCF
    • United States
    • U.S. District Court — District of Nevada
    • June 5, 2018
    ...P.2d 1271, 1274 (1988). Generally, "what a judge learns in his official capacity does not result in disqualification." Kirksey v. State, 112 Nev. 980, 1007, 923 P.2d 1102, 1119 (1996). However,[A]n opinion formed by a judge on the basis of facts introduced or events occurring in the course ......
  • Nika v. State, No. 46586.
    • United States
    • Nevada Supreme Court of Nevada
    • December 31, 2008
    ...179, 87 P.3d 528, 530 (2004). 9. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 10. Id. at 687-88, 104 S.Ct. 2052; Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 11. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Thomas v. State, 120 Nev. 37, 43-44, 83 P.3d 818, 823 (2004). 12. Ril......
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