McNelton v. State

• Decision Date: 13 December 1999
• Docket Number: No. 32448.,32448.
• Citation: 990 P.2d 1263,115 Nev. 396
• Parties: Charles D. McNELTON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

990 P.2d 1263

115 Nev. 396

Charles D. McNELTON, Appellant, v. The STATE of Nevada, Respondent.

No. 32448.

Supreme Court of Nevada.

December 13, 1999.

Rehearing Denied March 1, 2000.

JoNell Thomas, Las Vegas, for Appellant.

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

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM.

On May 13, 1989, appellant Charles McNelton approached Monica Glass in Las Vegas and shot her in the head, killing her. McNelton v. State, 111 Nev. 900, 902, 900 P.2d 934, 935 (1995), cert. denied, 517 U.S. 1212, 116 S.Ct. 1833, 134 L.Ed.2d 937 (1996). McNelton was subsequently charged with Glass's murder and the state sought the death penalty. McNelton presented an alibi defense, arguing that he was in Los Angeles at the time of the shooting. The jury returned a guilty verdict of one count of first-degree murder with the use of a deadly weapon and imposed the death penalty. On direct appeal, McNelton raised arguments pertaining to the guilt and penalty phases of his trial. This court rejected all of McNelton's contentions. Id. at 902-08, 900 P.2d at 935-39. McNelton subsequently filed a post-conviction petition for a writ of habeas corpus in the district court claiming ineffective assistance of trial and appellate counsel. After a hearing, the district court denied the petition. This appeal followed. We affirm.

FACTS

McNelton lived with Brian Jackson, his cousin, at 1237 Hart Street in Las Vegas, near Gerson Park. Andre Lee and his family lived several houses down the street. Lee, Jackson, and Glass, the sixteen-year-old victim, all sold crack cocaine on Hart Street. At some point in 1989, a dispute arose among those three because Lee's brother-in-law Leroy Wilson was helping Jackson sell cocaine at night. Wilson normally sold for Glass. Jackson apparently wanted Wilson to sell for him full-time, but Wilson was loyal to Glass and had refused.

In the afternoon on May 13, 1989, Lee was selling crack cocaine on the street in front of his house. Lee's wife Linda and two other women were also outside the house. Jackson rode up to Lee on a bicycle and told Lee to stop selling. Lee testified that Jackson "didn't want anybody to sell anything if they wasn't selling it for him." Lee ignored Jackson, who cycled home. Approximately five minutes later, Jackson returned with a gun. When a customer drove up, Jackson put the gun, a .25 caliber automatic, to Lee's temple and told him not to go to the customer. Lee did anyway. Jackson appeared upset by this and cycled back toward his house.

Approximately five to ten minutes later, McNelton approached Lee from the direction Jackson had gone. McNelton asked Lee if Lee was messing with his cousin, meaning Jackson. Glass then came out of Lee's house and walked to the end of the sidewalk, where everyone was assembled. McNelton asked her the same question. Glass said, "Chuck, get outta my face with that shit." McNelton responded, "I'm gonna show you what I do to people who mess with my family." McNelton then grabbed the back of Glass's head with his left hand, placed a gun to her forehead with his right, and fired once, killing her.

On June 16, 1989, an indictment was filed charging McNelton with one count each of murder and manslaughter with the use of a deadly weapon. The manslaughter count, which was based on the fact that Glass was pregnant at the time of the shooting, was subsequently dismissed. McNelton was located in California, where he was serving an unrelated prison sentence, and was not extradited to Nevada until December 1991. On June 1, 1992, McNelton filed a motion to dismiss the indictment on the ground that the State of Nevada failed to bring him to trial within 180 days as required by the Interstate Agreement on Detainers. The district court first granted McNelton's motion, then on rehearing denied it and set the matter for trial.

On March 4, 1992, the state filed a notice of intent to seek the death penalty. The state alleged five aggravating circumstances: (1) McNelton was convicted of robbery in California in 1980; (2) McNelton was convicted of assault with the use of a deadly weapon with great bodily injury in California in 1984; (3) McNelton was convicted of attempted robbery in California in 1984; and (4) McNelton was under sentence of imprisonment for the 1984 attempted robbery at the time he committed the instant crime; and (5) McNelton was under sentence of imprisonment for the 1984 assault at the time he committed the instant crime. Also on March 4, 1992, McNelton filed a notice of alibi, claiming that his wife Wanda would testify that he was in Los Angeles at the time of the shooting. On September 17, 1993, McNelton filed another notice of alibi listing the following additional witnesses: Elmore Hearon, Randolph Lee, Michael Turner, and Judy Lacy. All of those witnesses, with the exception of Lacy, testified in support of McNelton's alibi.

Trial took place October 5-7, 1993. The jury returned a verdict of guilty of one count of first-degree murder with the use of a deadly weapon. The penalty phase was held October 11-13, 1993. The jury found two aggravators: (1) the murder was committed by a person who was previously convicted of a felony involving the use or threat of violence; and (2) the murder was committed by a person under sentence of imprisonment. The jury concluded that any mitigating circumstances did not outweigh the aggravating circumstances and returned a verdict of death. On October 21, 1993, the district court entered a judgment of conviction pursuant to the verdicts.

On direct appeal, McNelton raised two arguments pertaining to the guilt phase of the trial: (1) the prosecutor failed to provide gender-neutral grounds for the exercise of peremptory challenges when six men and three women were challenged; and (2) the district court failed to prevent him from presenting an alibi defense (which he claimed on appeal was an unwise tactical decision which destroyed his credibility). Without discussing these claims, this court concluded that they lacked merit. McNelton, 111 Nev. at 902, 900 P.2d at 935.

With respect to the penalty phase, McNelton argued on direct appeal that: (1) the prosecutor committed misconduct in rebuttal closing argument by commenting on his failure to express remorse in his allocution statement; (2) the district court erred in failing to advise him that if he testified in the penalty phase the prosecutor's cross-examination would be limited to the scope of the mitigation testimony; (3) the district court erred in admitting evidence that Glass was pregnant; and (4) the jury improperly found the aggravator that the murder was committed by a person who was previously convicted of a felony (because his prior felony convictions were legally infirm), and that he was under sentence of imprisonment (because he was on parole). This court discussed each of these contentions and rejected all of them. Id. at 903-908, 900 P.2d at 936-39.

On August 6, 1996, McNelton filed a proper person post-conviction petition for a writ of habeas corpus claiming ineffective assistance of trial and appellate counsel. Counsel was subsequently appointed for McNelton. On September 22, 1997, appointed counsel filed an amended petition claiming: (1) appellate counsel was ineffective for failing to argue that (a) the district court erred in admitting a prior bad act, namely allowing a Las Vegas Metropolitan Police Department (LVMPD) officer to testify to extraneous events which occurred on February 24, 1989, and with regard to items discovered during a search of McNelton's house; (b) the prosecutor improperly mentioned in closing argument McNelton's silence; (c) the prosecutor shifted the burden of proof; (d) the jury should not have been instructed on the statute of limitations for sale of a controlled substance; (2) trial counsel was ineffective for failing to call McNelton's mother in the penalty phase; and (3) the prosecutor committed misconduct in commenting in closing argument on McNelton's lack of remorse.

In a second amended petition filed October 13, 1997, counsel raised the same issues plus a new one: (1)(e) appellate counsel was ineffective for failing to argue that the district court abused its discretion in denying McNelton's motion to dismiss. The state opposed the petition.

On April 3 and 17, 1998, the district court held an evidentiary hearing and heard argument on McNelton's petition. On May 18, 1998, the district court entered an order denying the petition. McNelton timely appealed.

DISCUSSION

I. Trial and appellate counsel provided McNelton with effective assistance of counsel

Generally, this court will defer to the district court's factual findings concerning claims of ineffective assistance of counsel. Hill v. State, 114 Nev. 169, 175, 953 P.2d 1077, 1082, cert. denied, ___ U.S. ____, 119 S.Ct. 594, 142 L.Ed.2d 537 (1998). However, because these types of claims present a mixed question of law and fact, they are still subject to this court's independent review. Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996) (citing State v. Love, 109 Nev. 1136, 1138, 865 P.2d 322, 323 (1993)).

This court reviews claims of ineffective assistance of counsel under the "reasonably effective assistance" standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984). Under Strickland, a defendant challenging the adequacy of his counsel's representation must show: (1) counsel's performance was deficient, i.e., counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A...