IN THE SUPREME COURT OF THE STATE OF NEVADA
EVANS CARTER TUTT, III, A/K/A No. 79581
EVANS CARTER,
Appellant,
vs.
THE STATE OF NEVADA,
F'l
Respondent. SEP 2 2020
5_
CLERK ' , T.
EY
EPUT7GLERK
ORDER OF AFFIRMANCE
This is a pro se appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Cristina D. Silva, Judge. Appellant Evans Carter
Tutt, III argues that he received ineffective assistance of trial and appellate
counsel. The district court denied his petition without an evidentiary
hearing. We affirm.'
To demonstrate ineffective assistance of counsel, a petitioner
must show that counsel's performance was deficient in that it fell below an
objective standard of reasonableness and that prejudice resulted in that
there was a reasonable probability of a different outcome absent counsel's
errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v.
Lyons, 100 Nev. 430, 432-33,
683 P.2d 504, 505 (1984) (adopting the test in
'Having considered Tutt's pro se brief, we conclude that a response is
not necessary. NRAP 46A(c). This appeal has been subrnitted for decision
based on the pro se brief and the record. NRAP 34()(3).
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Strickland); see also Kirksey v. State, 112 Nev. 980, 998,
923 P.2d 1102, 1114
(1996) (applying Strickland to claims of ineffective assistance of appellate
counsel). 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), and both components of the inquiry must be shown,
Strickland, 466 U.S. at 697. For purposes of the deficiency prong, counsel
is strongly presumed to have provided adequate assistance and exercised
reasonable professional judgment in all significant decisions. Id. at 690.
The petitioner is entitled to an evidentiary hearing when the claims
asserted are supported by specific factual allegations that are not belied or
repelled by the record and that, if true, would entitle the petitioner to relief.
See Nika v. State, 124 Nev. 1272, 1300-01,
198 P.3d 839, 858 (2008). We
defer to the district court's factual findings that are supported by
substantial evidence and not clearly wrong but review its application of the
law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686,
120 P.3d
1164, 1166 (2005).
Tutt first claims that trial counsel should have investigated
more thoroughly, spending more time with him to learn about the
background of the case and becoming more familiar with the State's
evidence. Tutt did not specifically allege what more investigation would
have uncovered or show how it might have led to a different outcome. See
Molina u. State, 120 Nev. 185, 192,
87 P.3d 533, 538 (2004). Further, Tutt's
bare allegation that counsel should have prepared more, without
specifically identifying what was omitted, is insufficient to rebut the
presumption that counsel's performance was adequate. The district court
therefore did not err in denying this claim without an evidentiary hearing.
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Tutt next claims that trial counsel should have developed a
"mental health defense." Tutt, however, did not identify any particular
mental health issue that might be relevant, describe what particular facts
an expert would elucidate, or explain how this defense might have led to a
different outcome at trial. Tutt accordingly has not shown deficient
performance or prejudice. The district court did not err in denying this
clahn without an evidentiary hearing.2
Tutt next claims that trial counsel should have moved for an
advisory verdict on the ground that the State did not prove the elements of
kidnapping and child abuse. Tutt specifically alleged that movement of the
victim was merely incidental to the battery and that evidence did not show
that the child suffered actual physical or mental harm. Substantial
evidence supports the district court's finding that Tutt moved the victim
beyond that required for the battery and created a substantially greater risk
of harm when he drove her to his friend's house and confined her there
overnight after beating her with a handgun. Substantial evidence also
supports the district court's finding that Tutt's actions placed the child in
2The district court's finding that the decision not to pursue this
defense was a tactical decision is not supported by substantial evidence, as
the district court reached that conclusion on the postconviction pleadings
alone. See State v. Williams, 797 So. 2d 1235, 1239 (Fla. 2001) ("[A] trial
court's finding that such a decision was tactical usually is inappropriate
without an evidentiary hearing." (internal quotation marks omitted)).
Nevertheless, the district court reached the correct determination in
denying this claim. See Wyatt v. State, 86 Nev. 294, 298,
468 P.2d 338, 341
(1970) ("If a judgment or order of a trial court reaches the right result,
although it is based on an incorrect ground, the judgment or order will be
affirrned on appeal.").
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the backseat of the car in a situation where the child could suffer physical
pain or mental suffering. Accordingly, a motion for an advisory verdict
would have been futile. See NRS 200.310(1) (setting forth elements of firstdegree kidnapping); NRS 200.508(1) (setting forth elements of child abuse).
Tutt cannot demonstrate deficient performance or prejudice in trial
counsel's omitting a meritless motion for an advisory verdict. Thus,
although substantial evidence does not support the district court's finding
that this omission was a strategic decision, the district court nevertheless
reached the correct determination in denying this claim.
Tutt next claims that appellate counsel should have challenged
the sufficiency of the evidence that supported his convictions for kidnapping
and child abuse. Appellate claims on these grounds would have failed
because the evidence was sufficient to establish guilt beyond a reasonable
doubt as determined by a rational trier of fact. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); Origel-Candido v. State,
114 Nev. 378, 381,
956 P.2d
1378, 1380 (1998). Trial testimony established that Tutt beat the victim
with a handgun while driving at high speed, refused her initial requests to
stop and later requests to go to a hospital, fractured her orbital bone, and
permanently impaired her vision. Testimony further established that Tutt
grabbed the victim and threw her back in the car after she jumped from the
moving vehicle and that he then drove her to a friend's house where she was
not free to leave until the following day. The evidence presented was
sufficient for a rational juror to reasonably infer that Tutt seized, confined,
carried away, or detained the victim for the purpose of causing substantial
bodily harm. See NRS 200.310(1). Testimony further established that the
victim's infant child was in the backseat and began screaming when Tutt
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began beating the victim and that Tutt placed the child in a situation where
he was driving recklessly and beating the passenger while both screamed
at each other. The evidence presented was thus also sufficient for a rational
juror to reasonably infer that Tutt placed a minor child in a situation where
the child could "suffer physical pain or mental suffering as the result of
abuse or neglect," which includes negligent treatment of the child. See NRS
200.508(1), (4)(a). Tutt has not shown deficient performance or prejudice in
appellate counsel's omitting futile claims. The district court therefore did
not err in denying this claim without an evidentiary hearing.
Tutt next claims that appellate counsel should have argued that
the unpreserved errors raised on appeal amounted to plain error. While
counsel arguably should have addressed the plain error standard, Tutt was
not prejudiced by counsel's omission because the Court of Appeals reviewed
the claims for plain error. See Tutt v. State, Docket No. 69178-COA (Order
of Affirmance, September 20, 2016). The district court therefore did not err
in denying this claim without an evidentiary hearing.
Tutt next claims that trial and appellate counsel should have
argued that the State presented knowingly false testimony and that the
false testimony independently warrants relief. He also argues that trial
counsel should have investigated purportedly exculpatory witnesses and
bank transactions. Additionally, he argues that the district court denied
him compulsory process by preventing him from subpoenaing a particular
witness. Tutt did not present these claim to the district court, and we
decline to address them in the first instance. See Ford u. Warden, 111 Nev.
872, 884,
901 P.2d 123, 130 (1995).
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Lastly, Tutt argued cumulative error. Even assuming that
multiple deficiencies in counsel's performance may be cumulated to
demonstrate prejudice in a postconviction context, see McConnell v. State,
125 Nev. 243, 259,
212 P.3d 307, 318 (2009), Tutt has not demonstrated
multiple instances of deficient performance to cumulate.
Having concluded that no relief is warranted, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
, J. J.
Hardesty Cadish
cc: Hon. Cristina D. Silva, District Judge
Attorney General/Carson City
Clark County District Attorney
Evans Carter Tutt, III
Eighth District Court Clerk
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