Ybarra v. State

• Decision Date: 21 January 1987
• Docket Number: No. 17462,17462
• Citation: 103 Nev. 8,731 P.2d 353
• Parties: Robert YBARRA, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 353

731 P.2d 353

103 Nev. 8

Robert YBARRA, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 17462.

Supreme Court of Nevada.

Jan. 21, 1987.

Crowell, Crowell, Crowell & Susich, Carson City, for appellant.

Brian McKay, Atty. Gen., and Brian Randall Hutchins, Deputy Atty. Gen., Carson City, Daniel Papez, Dist. Atty., Ely, for respondent.

OPINION

PER CURIAM:

Ybarra was convicted of murder, sexual assault, battery, and first degree kidnapping, and sentenced to death. We affirmed his conviction on appeal. Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 390 (1985). He filed his supplemental petition for post-conviction relief in June 1985 and alleged forty-seven claims of error, multiple instances of ineffective assistance of counsel at trial and on appeal, and several substantive claims. The district court held a two day hearing in September 1985 and took the matter under submission. In July 1986, the district court issued its fifty-eight page order denying relief. Ybarra now renews five of his claims of ineffective assistance of counsel at trial, and his claim of prosecutorial misconduct. We agree with the district court that none of his claims warrants relief.

Ybarra's claims of ineffective assistance will be evaluated 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), adopted by this court in Warden 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); see also Point v. State, 102 Nev. 143, 717 P.2d 38 (1986). In Strickland, the high court stated the test as follows:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. 466 U.S. at 687, 104 S.Ct. at 2064. The high court also said a reviewing court need not address the two components of the test in the order stated. Id. at 697, 104 S.Ct. at 2069. "In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id.

Here, because of the overwhelming evidence of Ybarra's guilt, the issue of prejudice will be examined first. The Strickland court noted that a verdict or conclusion weakly supported by the record is more likely to have been affected by counsel's errors than one with overwhelming record support. Id. at 696, 104 S.Ct. at 2069. The defendant must show that the decision reached would reasonably likely have been different absent the asserted errors. Id. This is a showing Ybarra cannot make because of the overwhelming evidence of his guilt, particularly in connection with the murder charge. Ybarra's fingerprints were found on a gas can located at the scene where the victim was burned. Bootprints and tire tracks found at the scene matched Ybarra's boots and truck tires. The victim's fingerprints were found on a beer can in Ybarra's trailer, and the victim's friend positively identified Ybarra as the man who had picked the two girls up and later left with the victim after the friend went home. Ybarra, 100 Nev. at 170, 679 P.2d 797. In light of this strong evidence, it is unlikely the jury would have reached a different conclusion concerning Ybarra's guilt. In fact, defense counsel conceded his guilt in opening statement, and Ybarra's bizarre version of the killing was introduced into evidence through the testimony of a psychiatrist.

Even though Ybarra has failed to make the requisite showing of prejudice under Strickland, which obviates addressing the other prong of the test, we will briefly analyze each alleged instance of attorney error. Because Ybarra had a number of counsel at trial and on appeal, a brief history of his representation is in order.

Ybarra was first represented by an inexperienced public defender, who was assisted by several more experienced members of the public defender's office. J. Gregory Damm assisted at the preliminary hearing. He was replaced by Martin Weiner, who conducted the voir dire, and worked on the change of venue motion which was appealed to this court. Ybarra became incompetent during the pendency of the appeal on the venue motion, and was committed to Lake's Crossing. Thomas Perkins was involved with the case at that time, but did not make any court appearances. When Ybarra was finally returned to Ely for trial, Norman Herring was acting as lead counsel. He continued his representation through the trial and penalty hearing, except for the prosecution's final closing argument.

Robert Bork wrote the initial briefs on appeal, after the public defender unsuccessfully moved to be relieved as counsel. Perkins replaced Bork as counsel on appeal, and Laura Fitzsimmons was co-counsel. They reopened the briefing and filed a supplemental brief. Perkins found the Seattle attorney who drafted the petition for certiorari to the United States Supreme Court after the direct appeal was unsuccessful. Ybarra's present counsel, Crowell, Crowell, Crowell & Susich, were appointed by the district court in White Pine County at the beginning of the post-conviction proceedings.

Failure to File Pretrial Petition for Habeas Corpus.

Ybarra first claims counsel was ineffective for failing to file a pretrial petition for writ of habeas corpus challenging the sufficiency of the evidence at the preliminary hearing. There was no argument before the magistrate concerning the sufficiency of the evidence and no petition for writ of habeas corpus was filed. Defense counsel filed a motion to dismiss the kidnapping and battery charges because of insufficient evidence about a year and a quarter after Ybarra's arraignment in district court. Attached to this motion was McGuire's affidavit stating that the motion had not been brought earlier because he was inexperienced and unfamiliar with Nevada criminal procedure.

In addressing this claim below, the district court found counsel had not been ineffective because the initial decision not to challenge the sufficiency of the evidence was not made by McGuire alone, but by McGuire and Damm. McGuire testified at the post-conviction hearing that he and Damm concluded the State had shown probable cause to hold Ybarra to answer. Further, the district court noted that there was arguably sufficient evidence presented at the preliminary hearing to support the charges.

Our independent review of the transcript of the preliminary hearing confirms this view. Ybarra argues the evidence of sexual assault and kidnapping was marginal at best. He correctly notes that the evidence does show the victim went willingly with him, but this does not mean a kidnap did not occur. NRS 200.310 defines first degree kidnapping in Nevada. One of the ways it can be committed is by leading, enticing, taking or carrying away or detaining any minor with the intent to perpetrate any unlawful act upon the minor. NRS 200.310(1); see also Jensen v. Sheriff, 89 Nev. 123, 125, 508 P.2d 4, 5 (1973). The evidence of sexual assault presented at the preliminary hearing includes the presence of sperm in the victim's vagina found during the autopsy, and the victim's own statement to her rescuers that she had been raped. From this evidence, one could conclude that Ybarra had enticed, or led the victim away, or detained her for the purpose of the sexual assault, an unlawful act. Thus, both the sexual assault and first degree kidnapping charges were supported by sufficient evidence at the preliminary hearing. See Sheriff v. Crockett, 102 Nev. 359, 724 P.2d 203 (1986) (slight evidence is enough). Counsel was not ineffective for believing the State had probable cause to hold Ybarra, and therefore not challenging the sufficiency of the evidence by pretrial petition for writ of habeas corpus.

Ybarra's Mental Competence at Trial

Ybarra next contends trial counsel permitted him to be tried when there were serious doubts as to his mental competency. There was ample evidence of Ybarra's competency when it was determined he could return from Lake's Crossing to stand trial in Ely. Five doctors agreed Ybarra was competent, and the district court thought they were correct. McGuire testified that he and Herring had decided not to further contest competency because all the doctors had found Ybarra competent, Ybarra himself believed he was competent and was anxious to go to trial. From this it is clear there were no serious doubts in anyone's mind that Ybarra was competent to be tried at the time that determination was made.

Ybarra further argues that counsel was ineffective for allowing him to be tried while under medication. He claims a defendant who is tried while medicated or sedated is denied due process, relying on State v. Murphy, 56 Wash.2d 761, 355 P.2d 323 (1960), where a capital defendant was granted a new trial because he had been drugged. However, the majority of courts that have considered the issue have held that competency may be attained through the use of medication. See, e.g., State v. JoJola, 89 N.M. 489, 553 P.2d 1296, 1299-1300 (N.M.Ct.App.1976); State v. Buie, 297 N.C. 159, 254 S.E.2d 26, 28 (1979), cert. denied, 444 U.S. 971, 100 S.Ct. 464, 62 L.Ed.2d 386 (1979); Ake v. State, 663 P.2d 1, 6-7 (Okla.Crim.App.1983), rev'd on other grounds, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); State v. Law, ...