Means v. State

Decision Date29 December 2004
Docket NumberNo. 40898.,40898.
Citation120 Nev. 1001,103 P.3d 25
PartiesClyde MEANS, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Robert E. Glennen III, Pahrump, for Appellant.

Brian Sandoval, Attorney General, Carson City; Robert S. Beckett, District Attorney, and Sharon Y. Dockter, Deputy District Attorney, Nye County, for Respondent.

JoNell Thomas, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.




In this appeal, we consider whether a post-conviction habeas petitioner should have been permitted to inspect and introduce his former attorney's notes from the case file into evidence after former counsel used the notes to refresh his recollection while testifying at the post-conviction evidentiary hearing. We also consider the proper burden of proof that a petitioner carries on disputed factual questions in the context of a post-conviction hearing. Finally, we consider whether granting a default judgment pursuant to the Nevada Rules of Civil Procedure is appropriate when the State is tardy in responding to a petition for post-conviction relief.

We conclude that the district court improperly denied petitioner access to his former attorneys' notes. We further conclude that petitioner's burden of proof on disputed factual issues underlying a claim of ineffective assistance of counsel is by a preponderance of the evidence and that it was error to require petitioner to prove by clear and convincing evidence that he had instructed his attorneys to appeal his conviction. Finally, we conclude that the district court properly denied petitioner's motion for default judgment.


Appellant Clyde Means pleaded guilty to and was convicted of attempted sexual assault upon his nineteen-year-old son. The victim alleged that Means had sexually assaulted him on at least three separate occasions while they lived in Nevada. Means had first pleaded not guilty to one count of open or gross lewdness and three counts of sexual assault.

At trial, after the jury was empaneled but before any evidence was presented, the district court conducted a hearing outside the jury's presence to determine whether to admit evidence of Means's prior bad acts.1 After the district court ruled that the prior bad acts were admissible, the State and defendant, through his attorneys, negotiated a plea bargain. In return for Means's plea of guilty to attempted sexual assault, the State agreed to dismiss all other charges.

Pursuant to the agreement, Means entered a plea of guilty. During the plea canvass, Means stated that his guilty plea was not the result of any threats or persuasion, but was his own idea. The district court informed Means that he would face two to twenty years in prison, up to a $10,000 fine and be required to pay restitution; Means was also told that probation was not available to him. Means indicated that he understood. The district court did not inform Means that he would be subject to lifetime supervision by the State's Division of Parole and Probation upon his release from prison.

At Means's sentencing hearing, the district court noted that the statutory sentence was between two to twenty years incarceration in prison and lifetime supervision upon release. The State Division of Parole and Probation recommended that Means be sentenced to a minimum of 57 months and a maximum of 144 months incarceration with lifetime supervision. The victim requested that Means receive the maximum penalty.2 The district court sentenced Means to the maximum penalty and informed him that he would be subject to lifetime supervision upon his release from prison.

Means did not appeal from his sentence. He subsequently filed a proper person petition in the district court for post-conviction relief. Means alleged that his guilty plea was not entered intelligently and voluntarily because he was on medication for manic depression and that his defense counsel's assistance was ineffective for failing to obtain a competency evaluation and for failing to directly appeal Means's conviction upon his request; Means also alleged that his sentence violated his constitutional right against cruel and unusual punishment and that the provision in the sentence requiring lifetime supervision constituted double jeopardy and also violated the Equal Protection Clause.

The district court appointed post-conviction counsel to represent Means. After a hearing, the court denied the habeas petition in part and granted Means's request for an evidentiary hearing regarding the issue of his defense counsel's failure to pursue an appeal. Before the evidentiary hearing, Means requested the notes and files kept by his former attorneys during the course of their representation of Means in the criminal case. Apparently, his former counsel turned over the file but removed their notes.3 During the evidentiary hearing, one of Means's former attorneys, Christian Bryner, referred to those notes while being questioned. Means moved to inspect those notes and to have them introduced as evidence. After the parties briefed the issue of whether an attorney's notes should be released to a former client and after an in camera inspection of the notes, the district court denied Means's motion. Subsequently, the district court denied Means's petition for post-conviction relief.

Means now appeals the denial of his petition. He argues that the district court erred by ruling that he was not entitled to his trial attorneys' notes, applying the wrong burden of proof, refusing to conduct a hearing on the validity of his plea, concluding that his former defense counsel provided adequate assistance and denying his motion for a default judgment.


Access to counsel's notes

In connection with his factual claim that he had instructed his former attorneys to appeal his conviction and sentencing, Means requested the attorneys' file. Means claimed that his former attorneys' failure to appeal amounted to ineffective assistance of counsel, entitling him to post-conviction relief. Counsel disputed the factual claim that Means had asked them to file an appeal. His former attorneys, Lamond Mills and Bryner, acquiesced in Means's request for production of their trial file but, as previously mentioned, they withheld their written notes. Bryner referred to those notes while testifying at Means's post-conviction hearing. Means requested that the district court allow him to inspect the notes and thereafter admit those notes into evidence, but the district court refused.

Means claims that this was error since Bryner used the notes to refresh his recollection at the hearing. Under NRS 50.125, Means argues, he was entitled to inspect the notes and introduce them into evidence. Means further argues that NRS 7.055 requires the discharged attorney to deliver everything prepared for the client, including notes. Finally, Means contends that the attorneys could not invoke the work product privilege found in NRCP 26(b)(3) to justify withholding their notes because the privilege is meant to protect a party from disclosing to an opposing party mental impressions, conclusions, opinions and legal theories. Means asserts that Bryner and Mills represented him and so he is not and cannot be an opposing party within the meaning of the rule; Means also asserts that the rule does not apply when a former client seeks his former counsel's notes in a post-conviction proceeding where the former counsel is a witness.

We review the district court's resolution of discovery disputes for an abuse of discretion.4 We also review a district court's decision to admit or exclude evidence at hearings and trials for an abuse of discretion. It is within the district court's sound discretion to admit or exclude evidence,5 and "this court will not overturn [the district court's] decision absent manifest error."6

NRS 50.125(1)(b) allows an adverse party to inspect any writing used to refresh a witness's recollection. It further allows the adverse party to cross-examine the witness about the writing and to introduce into evidence relevant portions affecting the witness's credibility.7 NRS 50.125(2) allows the district court to inspect and excise irrelevant portions of the writing used to refresh memory before providing it to the adverse party.

Bryner, at the State's request, used his file and notes to refresh his recollection as to the number of times he had communicated with Means. The district court also asked Bryner if his notes indicated that Means had requested Bryner to file an appeal. Bryner testified that nothing in his notes indicated that Means wanted to appeal his conviction. The district court refused Means's request to inspect the notes but reserved a final ruling until the parties had briefed the issue. The court later heard oral argument on the issue and subsequently denied Means's motion. The district court erred. Because Bryner used the notes to refresh his recollection and testified directly from the document, Means was entitled to inspect the notes.8

The State argues that the work product doctrine protects not only the client but also the attorney and therefore shields an attorney from having to disclose the contents of a client's file to the client. The State contends that trial preparation would be impaired if defense counsel knew his preparation notes would potentially be open to review at subsequent proceedings; there being no way, other than through self-serving and selective trial preparation for an attorney to protect him or herself from misuse of damaging information in the client's file, the attorney's preparation of a case would necessarily be impacted. The State argues that an attorney's notes should only be discoverable if the former client first demonstrates a substantial need for the notes and secondly that he cannot obtain the same information elsewhere without undue hardship. The State describes this as the...

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