IN THE SUPREME COURT OF THE STATE OF NEVADA
JERRY HOLMAN, No. 79628
Appellant,
vs.
THE STATE OF NEVADA,
FILE
Respondent. - SEP 1p 2020
EurtarTit'L DROWN
LY
DEPUTY CLERK
ORDER OF AFFIRMANCE
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; Stefany Miley, Judge.
Appellant argues that the district court erred in denying his
claims of ineffective assistance of trial and appellate counsel. To prove
ineffective assistance of trial 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 u. Lyons,
100 Nev. 430, 432-33,
683 P.2d 504,
505 (1984) (adopting the test in Strickland). To dernonstrate prejudice frorn
appellate counsel's deficient performance, a petitioner must demonstrate
that the omitted issue would have had a reasonable probability of success
on appeal. Kirksey u. State,
112 Nev. 980, 998,
923 P.2d 1102, 1114 (1996).
Both components of the inquiry must be shown, Strickland,
466 U.S. at 697,
and the petitioner rnust demonstrate the underlying facts by a
preponderance of the evidence, Means v. State,
120 Nev. 1001, 1012,
103
P.3d 25, 33 (2004). We give deference to the district court's factual findings
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if supported by substantial evidence and not clearly erroneous but review
the court's application of the law to those facts de novo. Lader u. Warden,
121 Nev. 682, 686,
120 P.3d 1164, 1166 (2005).
First, appellant argues that trial counsel should have objected
when the State's investigator testified to S. Lee's out-of-court statements
that she came to Las Vegas with appellant and thought appellant was mad
because she owed him $5. Appellant argues that this testimony was
hearsay and violated his right to confrontation. Appellant has not
demonstrated deficient performance. Appellant's trial counsel testified that
he decided not to object every time the opportunity presented itself because
it could alienate the jury and that he believed the information was not
harmful. Strategic decisions are virtually unchallengeable absent
extraordinary circumstances, Strickland, 466 U.S. at 690-91, and appellant
has not demonstrated any such circumstances here. Appellant has further
not demonstrated that there was a reasonable likelihood of a different
outcome at trial had counsel objected in light of the overwhelming evidence
of guilt, which included eyewitness testimony (including descriptions of
appellant's aggressive and angry conduct at the apartment complex) and
video. Therefore, the district court did not err in denying this claim.'
Next, appellant argues that trial counsel elicited highly
prejudicial hearsay testimony from the State's investigator when trial
counsel asked who S. Lee was afraid of and the investigator responded that
S. Lee told him that she was afraid of appellant. Trial counsel testified that
he should not have asked the question, but he did not feel appellant was
'Additionally, appellant has not demonstrated that appellate counsel
was deficient in failing to raise this issue on appeal or that this issue would
have had a reasonable likelihood of success on appeal.
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prejudiced by the mistake. Even if trial counsel was deficient in eliciting
this testimony, we conclude that appellant has not demonstrated a
reasonable probability of a different outcome had trial counsel not asked the
question in light of the overwhelming evidence of guilt. Therefore, we
conclude that the district court did not err in denying this claim.2
Next, appellant argues that trial counsel should have objected
to the State shifting the burden of proof when asking the alibi witness,
appellant's brother, questions about other people at the barbeque and why
he did not come forward earlier. Appellant also argues that trial counsel
should have objected to the State referencing big holes in the alibi witness's
testimony. Appellant has not dernonstrated deficient performance. The
prosecutor's questions did not shift the burden of proof; rather, they probed
the witness's credibility by examining his ability to recall details and
explain actions he did or did not take when his brother was arrested for
murder. See Pascua v. State, 122 Nev. 1001, 1007-08,
145 P.3d 1031, 1035
(2006) (recognizing that a prosecutor may ask questions related to the
veracity of witnesses to rebut the defense theory of the case); Lobato v.
State, 120 Nev. 512, 518,
96 P.3d 765, 770 (2004) (recognizing that
impeachment includes challenges to "the competence of a witness to testify,
i.e., attacks based upon defects of perception, memory, communication and
ability to understand the oath to testify truthfully" and "ulterior motives for
testifyine). The prosecutor's closing argument did not shift the burden of
proof but commented on the evidence and the defense theory of the case.
See Jimenez v. State, 106 Nev. 769, 772,
801 P.2d 1366, 1367-38 (1990)
Additionally, appellant has not dernonstrated that appellate counsel
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was deficient in failing to raise this issue on appeal or that this issue would
have had a reasonable likelihood of success on appeal.
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("[P]rosecutors must be free to express their perceptions of the record
evidence and inferences properly drawn therefrom."); Evans v. State, 117
Nev. 609, 631,
28 P.3d 498, 513 (2001) (recognizing that it is not improper
for the prosecutor "to comment on the failure of the defense to counter or
explain evidence presented"), overruled on other grounds by Lisle v. State,
131 Nev. 356, 366 n.5,
351 P.3d 725, 732 n.5 (2015). Appellant further has
not demonstrated a reasonable probability of a different outcome in light of
the overwhelming evidence of guilt. Therefore, we conclude that the district
court did not err in denying this clairn.3
Next, appellant argues that trial counsel should have obtained
a DNA expert. Trial counsel testified it was their strategy not to consult a
DNA expert because the State's expert had no DNA results linking
appellant to the crime scene or the bloody t-shirt thought to have been
discarded by the perpetrator. The defense centered its strategy on the lack
of conclusive DNA evidence tying appellant to the crime. Appellant has not
demonstrated that defense counsel's strategy was unreasonable or that
appellant was prejudiced given the overwhelming evidence of guilt.
Therefore, we conclude that the district court did not err in denying this
claim.4
Next, appellant argues appellate counsel should have argued
that the State improperly impeached his alibi witness with the underlying
3Additiona11y, appellant has not demonstrated that appellate counsel
was deficient in not raising this issue or that it would have had a reasonable
likelihood of success on appeal, and thus, he has not demonstrated appellate
counsel was ineffective in this regard.
4Appellant has not demonstrated the district court abused its
discretion in denying postconviction counsel's request for funds to hire a
DNA expert in light of the disposition of this claim.
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facts of a probation violation. During direct examination, the alibi witness
acknowledged a robbery conviction and that he was currently in custody on
a probation violation. During cross-examination, the prosecutor asked the
witness if his probation violation related to a gang association. Defense
counsel objected and the district court allowed the prosecutor to ask about
the violation. The alibi witness answered no, and the prosecutor asked no
further questions. Although it appears that this was improper
impeachment, see NRS 50.085(3) (allowing impeachment with specific act
relating to truthfulness), NRS 50.095 (allowing impeachment with
conviction); Butler u. State, 120 Nev. 879, 890,
102 P.3d 71, 79 (2004)
(recognizing that NRS 50.085(3) "permits impeaching a witness on cross-examination with questions about specific acts as long as the impeachment
pertains to truthfulness or untruthfulness" (quoting Collman u. State, 116
Nev. 687, 703,
7 P.3d 426, 436 (2000))), appellant has not demonstrated that
this issue had a reasonable probability of success on appeal given the
overwhelming evidence of guilt presented at trial. Therefore, we conclude
that the district court did not err in denying this claim.
Finally, appellant argues that any deficiencies in counsel's
performance should be cumulated for purposes of determining prejudice.
Even assuming multiple instances of deficient performance could be
cumulated for purposes of demonstrating prejudice, see McConnell u. State,
125 Nev. 243, 259,
212 P.3d 307, 318 (2009), appellant has demonstrated
only one instance of trial counsel's deficient performance and one instance
of appellate counsel's deficient performance. As these errors occurred in
different stages of the proceedings and prejudice is related to the outcome
of a specific proceeding (trial vs. appeal), the deficiencies cannot cumulate.
•In any event, even cumulating these errors, appellant has not demonstrated
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a reasonable probability of a different outcome given the overwhelming
evidence of guilt. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
, J.
Parra guirre
, J.
Hardesty
Rik J.
Cadish
cc: Hon. Stefany Miley, District Judge
Law Office of Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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