IN THE SUPREME COURT OF THE STATE OF NEVADA
GEORGE M. TIAFFAY, No. 79176
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent. - SEP ie 2020
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BY
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DEPUTY CLErd
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; Michelle Leavitt, Judge.
Appellant George Tiaffay contends that the district court erred
in denying his claims of ineffective assistance of counsel. To prove
ineffective assistance of 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). Both components of the inquiry
must be shown, Strickland, 466 U.S. at 697, and the petitioner must
demonstrate the underlying facts by a preponderance of the evidence,
Means u. State, 120 Nev. 1001, 1012,
103 P.3d 25, 33 (2004). We give
deference to the district court's factual findings if supported by substantial
evidence and not clearly erroneous but review the court's application of the
law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686,
120 P.3d
1164, 1166 (2005).
SUPREME COURT
OF
NEYROA
01 IsUM olfig/0
70-3ultio
First, appellant argues that past head injuries, hormone
therapy, and prescription drug use caused increased aggression and
possible psychosis, accordingly, trial counsel should have investigated and
presented evidence about appellant's psychological condition as both a
defense to the charges and as mitigation at sentencing. Appellant has not
demonstrated deficient performance. At trial, the State alleged that
appellant spent weeks planning the victim's murder with his alleged
coconspirator who carried out the murder. Rather than concede appellant's
culpability and present the psychological evidence, trial counsel concluded
that the best defense would be to assert that the alleged coconspirator acted
alone. Counsel perceived appellant's proposed mental illness defense was a
means to explain his conduct to his family and friends and not a genuine
trial strategy. Given the tenuous nature of the psychological evidence and
the risks associated with acknowledging culpability, appellant has not
overcome the presumption that counsel performed effectively. See
Strickland, 466 U.S. at 689-90; Doleman v. State,
112 Nev. 843, 848, 921
1).2c1 278, 280-81 (1996) (recognizing that strategic decision are "virtually
unchallengeable absent extraordinary circumstances." (quotation marks
omitted)). Further, appellant has not demonstrated prejudice. Appellant
and his coconspirator plotted the murder while appellant worked, cared for
his daughter, and fostered an amicable relationship with the victim to avoid
any suspicion related to her death. Given the patience, subterfuge, and
perseverance involved in this plot, appellant has not demonstrated a
reasonable probability that he would not have been convicted or would have
received a inore lenient sentence if counsel introduced evidence about
appellant's mental health. Therefore, the district court did not err in
denying this claim.
2
Second, appellant argues that trial counsel should have
objected to unrecorded bench conferences. Appellant does not specify the
subject matter of the unrecorded bench conferences or explain their
significance. See Daniel v. State, 119 Nev. 498, 508,
78 P.3d 890, 897 (2003)
("[A]n appellant must demonstrate that the subject matter of the missing
portions of the record was so significant that the appellate court cannot
meaningfully review an appellant's contentions of error and the prejudicial
effect of any error."). Thus, he failed to support his claim with specific facts
that, if true, would entitle him to relief. Therefore, the district court did not
err in denying this claim. See Hargrove v. State, 100 Nev. 498, 502-03,
686
P.2d 222, 225 (1984).
Third, appellant argues that trial counsel should have objected
to the reasonable doubt, implied malice, and equal and exact justice jury
instructions. Appellant has not demonstrated deficient performance or
prejudice. The district court gave the reasonable doubt instruction
mandated by NRS 175.211, and counsel could not have successfully
challenged the malice and equal and exact justice instructions in light of
controlling case law. See, e.g., Leonard v. State, 117 Nev. 53, 78-79,
17 P.3d
397, 413 (2001) (holding that the "abandoned and malignant heart"
language is essential and informs the jury of the distinction between
express and implied malice); Byford v. State,
116 Nev. 215, 232,
995 P.2d
700, 712 (2000) (upholding the malice instruction where the jury is properly
instructed on the presumption of innocence); Leonard v. State,
114 Nev.
1196, 1209,
969 P.2d 288, 296 (1998) (providing that where the jury has
been instructed that the defendant is presumed innocent and that the State
bears the burden of proving guilt beyond a reasonable doubt, the equal and
exact justice instruction does not undermine the presumption of innocence
3
or lessen the burden of proof). Therefore, we conclude the district court did
not err in denying this clairn.
Finally, appellant argues that the cumulative effect of counsel's
errors warrants reversal. Even assuming that multiple instances of
deficient performance may be cumulated for purposes of showing prejudice,
see McConnell v. State, 125 Nev. 243, 259 n.17,
212 P.3d 307, 318 n.17
(2009), appellant has not demonstrated any instances of deficient
performance to cumulate.
Having considered appellant's contentions and concluded that
they lack merit, we
ORDER the judgment of the district court AFFIRMED.
0....facsrsifi`w7 J.
Parraguirre
Hardesty
J.
Cadish
cc: Hon. Michelle Leavitt, District Judge
Law Office of Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUM1EPAE COURT
OF
NEVADA
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