IN THE SUPREME COURT OF THE STATE OF NEVADA
RICKIE LAMONT SLAUGHTER, No. 78760
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
OCT 1 5 2020
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
BY
OEPUrf CLER
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; Douglas W. Herndon, Judge.'
Appellant filed his petition on November 20, 2018, more than
four years after the remittitur issued on appeal from the judgment of
conviction. See Slaughter v. State, Docket No. 61991 (Order of Affirmance,
March 12, 2014). The petition was therefore untimely filed. See NRS
34.726(1). Moreover, appellant previously sought postconviction relief. See
Slaughter v. State, Docket No. 70676-COA (Order of Affirmance, April, 19,
2017); Slaughter v. State, Docket No. 68532 (Order of Affirmance, July 13,
2016). The petition was therefore successive to the extent it raised claims
that were previously litigated and resolved on their merits, and it
constituted an abuse of the writ to the extent it raised new claims that could
have been raised earlier. See NRS 34.810(1)(b)(2); NRS 34.810(2).
Accordingly, the petition was procedurally barred absent a demonstration
of good cause and actual prejudice, NRS 34.726(1); NRS 34.810(1)(b); NRS
34.810(3), or a showing that the procedural bars should be excused to
'Pursuant to NRAP 34(0(1), we have determined that oral argument
is not warranted in this appeal.
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prevent a fundamental miscarriage of justice, Pellegrini v. State, 117 Nev.
860, 887,
34 P.3d 519, 537 (2001), abrogated on other grounds by Rippo v.
State, 134 Nev. 411, 423 n.12,
423 P.3d 1094, 1097 n.12 (2018).
Appellant argues he demonstrated good cause and prejudice
sufficient to excuse the procedural bars because the State withheld three
pieces of material evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963). There are three components to a successful Brady claim: "the
evidence at issue is favorable to the accused; the evidence was withheld by
the state, either intentionally or inadvertently; and prejudice ensued, i.e.,
the evidence was material." Mazzan v. Warden, 116 Nev. 48, 67,
993 P.2d
25, 37 (2000). Evidence is material only when there is a reasonable
probability or possibility—depending on whether there was a specific
request for the evidence—that the result of the trial would have been
different. Id. at 74,
993 P.2d at 41; see also Strickler v. Greene,
527 U.S.
263, 281 (1999) C[S]trictly speaking, there is never a real 'Brady violation'
unless the [Government's] nondisclosure was so serious that there is a
reasonable probability that the suppressed evidence would have produced a
different verdict."); Kyles v. Whitley, 514 U.S. 419, 434 (1995) (A reasonable
probability of a different result is accordingly shown when the government's
evidentiary suppression undermines confidence in the outcome of the trial."
(internal quotation marks omitted)).
When a Brady claim is raised in the context of a procedurally-barred postconviction petition, the petitioner has the burden of
demonstrating good cause for his failure to present the claim earlier and
actual prejudice. State v. Bennett, 119 Nev. 589, 599,
81 P.3d 1, 8 (2003).
As a general rule, "[g]ood cause and prejudice parallel the second and third
Brady components; in other words, proving that the State withheld the
evidence generally establishes cause, and proving that the withheld
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evidence was material establishes prejudice." Id. Additionally "a Brady
claim still must be raised within a reasonable time after the withheld
evidence was disclosed to or discovered by the defense." State v. Huebler,
128 Nev. 192, 198 n.3,
275 P.3d 91, 95 n.3 (2012). Our review is de novo.
See Bennett, 119 Nev. at 599,
81 P.3d at 7-8 (reviewing de novo a Brady
claim in a procedurally-barred petition).
First, appellant asserts the State withheld the outcome of a
second photographic lineup—that none of the victims identified him in the
second lineup. A photographic lineup was created for appellant, and four of
the victims recognized appellant.2 A second photographic lineup, which
inadvertently included a different picture of appellant than the picture in
the first lineup, was created for an alleged accomplice. While he always
suspected none of the victims identified him in the second photographic
lineup, appellant claims that he did not have proof of this fact until he
deposed the detective in 2018. During the deposition, the detective said
that he would never intentionally include two suspects in the same lineup,
that the victims did not identify anyone in the second lineup, and that,
consequently, the victims did not fill out anything or write anything down
regarding the second lineup.
Appellant fails to show that the State withheld material
evidence related to the second photographic lineup. Before trial, appellant
was provided with copies of the second photographic lineup and knew that
he was in the lineup. Before and during trial, appellant argued to the
2We reject appellant's argument that the suggestiveness of the first
lineup—a claim previously considered and denied by this court in Slaughter
v. State, Docket No. 61991, Order of Affirmance, at 2-3 (March 12, 2014)—
should be reconsidered because the allegedly withheld results from the
second lineup make his suggestiveness argument stronger.
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district court that there was no notation or indication of his being identified.
The outcome of the second lineup was therefore not withheld as appellant
acknowledged during the pretrial hearings that there was no record of his
being identified. But even assuming the outcome of the second lineup was
withheld, appellant fails to show the materiality of the victims inability to
identify him in a second photographic lineup created for the alleged
accomplice considering the other evidence against appellant, including incourt identifications by three of the victims, surveillance video showing
appellant using a victim's ATM card shortly after the incident, see Slaughter
v. State, Docket No. 61991, Order of Affirmance, at 3 (March 12, 2014)
(giving deference to the district court's factual finding that appellant was
depicted in the surveillance footage), and the fact that appellant's girlfriend
owned a vehicle, to which appellant had access, resembling the witnesses'
descriptions and containing "two firearms consistent with those used in the
crimes and ammunition consistent with ballistic evidence recovered from
the scene," id. at 2-3. Based on this evidence, appellant has not
demonstrated a reasonable possibility that the result of trial would have
been different had the outcome of the second lineup been disclosed.
Therefore, the district court did not err in denying this claim as procedurally
barred.
Second, appellant asserts the State withheld material evidence
confirming the time of the 9-1-1 call. While acknowledging the State
disclosed police reports referencing 7:11 p.m. in connection with the incident
and the dispatch of officers, appellant claims that he had no explanation for
what the time meant and that nothing explicitly stated the call time was
7:11 p.m. until he received a document in 2018. He claims this evidence
would have shown the perpetrators left the scene at approximately 7:08
p.m., a fact he alleges was crucial to his alibi defense.
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Appellant fails to show that the State withheld material
evidence related to the time of the 9-1-1 call. Appellant was aware from
police reports that at or about 7:11 p.m. officers were dispatched in
reference to the incident. "Evidence is not suppressed if the defendant
either knew or should have known of the essential facts permitting him to
take advantage of any exculpatory evidence." United State v. LeRoy, 687
F.2d 610, 618 (2d Cir. 1982) (internal citations and quotation marks
omitted); see also United States v. Wilson,
901 F.2d 378, 381 (4th Cir. 1990);
United States v. Brown,
628 F.2d 471, 473 (5th Cir. 1980); Carter v. Bell,
218 F.3d 581, 601 (6th Cir. 2000); United States v. Stuart,
150 F.3d 935, 937
(8th Cir. 1998); United States v. Griggs,
713 F.2d 672, 674 (11th Cir. 1983);
People v. Superior Court (Johnson),
377 P.3d 847, 858-59 (Cal. 2015); State
v. Bisner,
37 P.3d 1073, 1082-83 (Utah 2001); State v. Mullen,
259 P.3d 158,
166 (Wash. 2011). And this court has recognized, "a Brady violation does
not result if the defendant, exercising reasonable diligence, could have
obtained the information." Rippo v. State,
113 Nev. 1239, 1257,
946 P.2d
1017, 1028 (1997) (listing federal cases holding the same); see also United
States v. Aichele,
941 F.2d 761, 764 (9th Cir. 1991) (When, as here, a
defendant has enough information to be able to ascertain the supposed
Brady material on his own, there is no suppression by the government.");
Mass v. Quarterman,
446 F.Supp.2d 671, 693 (W.D. Tex. 2006) (noting that
"Brady imposes a duty of disclosure with regard to [exculpatory]
information, regardless of what form that information might assume and
finding no Brady violation where specific reports were not disclosed but the
substantive information from the reports was known by the defense).
Even assuming that confirmation of the 9-1-1 call time was
withheld, appellant fails to show the materiality. While appellant relies on
testimony from his girlfriend that he was picking her up ten miles away
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from the scene of the crime between 7:00 p.m. to 7:15 p.m. but no later than
7:20 p.m. in order to demonstrate materiality, the jury also heard about a
prior statement by the girlfriend and testimony of another witness that
appellant picked his girlfriend up at 7:30 p.m. Moreover, the jury heard
evidence that appellant attempted to fabricate his alibi on a phone call with
his girlfriend. See Slaughter v. State, Docket No. 68532, Order of
Affirmance, at 3 (July 13, 2016) (referencing the district court's finding that
appellant made statements which indicated he was attempting to fabricate
an alibi). Lastly, as noted above, appellant was identified in court by three
of the victims and video surveillance showed him using one of the victim's
ATM cards shortly after the incident. Considering all of the above,
appellant failed to demonstrate a reasonable probability that the result of
the trial would have been different had a document confirming the 7:11 p.m.
call time been disclosed.
Third, appellant asserts the State withheld material
impeachment evidence. He claims the evidence demonstrates that Jeffrey
Arbuckle, a witness for the State, was biased against appellant based on the
fact that Arbuckle called the police on appellant for trespassing
approximately three weeks before the incident. Appellant fails to show that
he raised this claim within a reasonable time after the allegedly withheld
evidence was disclosed to or discovered by the defense. In his first
postconviction petition, filed in 2015, appellant wrote: "In response to the
verbal argument between [appellant] and Arbuckle, Arbuckle appears to
have filed a police report /or complaint with the police on 06/03/2004,
requesting that [appellant] be 'trespassed from [the premise]. I personally
discovered this information after trial, after receiving [defense counsel's]
case file regarding my case and reviewing a 'print-ouf of my S.C.O.P.E.-
record which was contained in [defense counsel's] personal trial file."
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Because information about the trespass was included in trial counsel's
folder, it does not appear that it was withheld by the State. Further,
because appellant was aware of the underlying facts of this claim in 2015,
he has not shown good cause for litigating the claim again in his 2018
petition. Therefore, the district court did not err in concluding that
appellant has not demonstrated good cause or actual prejudice to excuse the
procedural bars based on the alleged Brady violations.3
Next, appellant argues the procedural bars should be excused
to prevent a fundamental miscarriage of justice because he is actually
innocent of the crimes. Appellant claims new evidence, mainly the alleged
Brady material set forth above, establishes a more solid alibi than was
introduced at trial and demonstrates the victims identifications were
unreliable such "that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence." Berry v. State,
131 Nev. 957, 966,
363 P.3d 1148, 1154 (2015) (internal quotation marks
omitted). While a colorable showing of actual innocence—factual innocence
of the crime as opposed to legal insufficiency—may demonstrate a
fundamental miscarriage of justice sufficient to overcome the procedural
bars, see Mitchell v. State, 122 Nev. 1269, 1273-74,
149 P.3d 33, 36 (2006),
3To the extent appellant argues good cause for his ineffectiveassistance-of-counsel claims related to the Brady material, this argument
fails. Either the good cause for the delay is that the evidence was withheld
from counsel—as appellant alleged for his Brady claims—or that counsel
was ineffective for not discovering or using the evidence—a claim that is
itself procedurally barred and cannot constitute good cause. Hathaway v.
State, 119 Nev. 248, 252,
71 P.3d 503, 506 (2003). Additionally, appellant
contends that his Brady claims establish good cause to (re)raise substantive
claims regarding the suggestiveness of the first lineup and prosecutorial
misconduct during closing argument. Because we have concluded that his
Brady claims do not constitute good cause and actual prejudice to overcome
the procedural bars, this argument also fails.
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we conclude appellant has not made this showing. The alleged new
evidence of appellant's alibi—that the perpetrators left the scene closer to
7:08 p.m. and not 7:00 p.m. and that Arbuckle called the police on
appellant—does not demonstrate factual innocence when considering all
the evidence produced at trial. And even incorporating new evidence that
none of the victims identified appellant in a second lineup—a lineup
prepared for an alleged accomplice—does not change that conclusion. In
addition to three of the victims identifying appellant in court, appellant's
girlfriend's car, to which appellant had access, resembled the car described
by witnesses, and law enforcement found two firearms and ammunition in
the car consistent with evidence recovered at the crime scene. Surveillance
footage shows appellant using a victim's ATM card and appellant made
statements that indicated he was attempting to fabricate his alibi. In light
of this evidence, the outcome of the second lineup and small variances in
the time the 9-1-1 call was placed and the time appellant picked up his
girlfriend would not have made it more likely than not that no reasonable
juror would have convicted him. Therefore, the district court did not err in
denying this claim.
Lastly, appellant asks this court to reconsider and overrule its
decision in Brown v. McDaniel, 130 Nev. 565,
331 P.3d 867 (2014), and hold
that the failure to appoint postconviction counsel may constitute good cause
in non-capital cases to excuse the procedural bars. Appellant claims that
Brown was wrongly decided and that this court should instead follow the
reasoning outlined in Martinez v. Ryan, 566 U.S. 1 (2012). "c[U]nder the
doctrine of stare decisis, we will not overturn [precedent] absent compelling
reasons for so doing."' Armenta-Carpio v. State, 129 Nev. 531, 535,
306 P.3d
395, 398 (2013) (alterations in original) (quoting Miller v. Burk,
124 Nev.
579, 597,
188 P.3d 1112, 1124 (2008) (footnoted omitted)). "Mere
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disagreemene with a prior decision is not a compelling reason to overturn
precedent. Miller, 124 Nev. at 597,
188 P.3d at 1124. Instead, this court
considers whether the prior decision has been proven "badly reasone& or
“unworkable." State v. Lloyd,
129 Nev. 739, 750,
312 P.3d 467, 474 (2013);
see also Kapp v. Kapp,
31 Nev. 70, 73,
99 P. 1077, 1078 (1909) (concluding
that, when an issue has been squarely presented and decided, "the point
should not be unsettled, except for very weighty and conclusive reasone).
We conclude appellant has not demonstrated compelling reasons to
overturn Brown and deny his request.
Having considered appellant's claims and concluded no relief is
warranted, we
ORDER the judgment of the district court AFFIRMED.
Al4C4,0 , J.
Stiglich Silver
cc: Hon. Douglas W. Herndon, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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