IN THE SUPREME COURT OF THE STATE OF NEVADA
PRESTON EMERSON, No. 80749
Appellant,
VS.
THE STATE OF NEVADA, FILED
Respondent.
APR 1 6 2021
ELIZABETH A. BROWN
CLERK OF 1:1PREME COURT
BY
DEPUTY CLER.1
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; Carolyn Ellsworth, Judge. Appellant Preston
Emerson argues that the district court erred in denying his claims of
ineffective assistance of trial and appellate counsel 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
Strickland); see also Kirksey v. State, 112 Nev. 980, 998,
923 P.2d 1102, 1113
(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 v. State, 120 Nev. 1001, 1012,
103
P.3d 25, 33 (2004), and both components of the inquiry must be shown,
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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.
We defer to the district court's factual findings that are supported by
substantial evidence and not clearly wrong, but we review its application of
the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686,
120
P.3d 1164, 1166 (2005). 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).
Emerson first argues that trial counsel should have challenged
the admission of firearms and ammunition that were not used in the
shooting as impermissible prior-bad-act evidence. NRS 48.045(2) provides
that evidence of a defendant's prior bad acts may not be used to establish
the defendant's character and that the defendant acted in conformity with
that character. The State here presented evidence of ammunition and
several firearms seized in the apartment where Emerson was arrested. The
evidence did not implicate Emerson in a crime or bad act or provide
character evidence and therefore was not inadmissible under NRS
48.045(2). See U.S. Const. amend. II (guaranteeing the right to bear arms);
Lamb v. State, 127 Nev. 26, 41,
251 P.3d 700, 710 (2011) (providing that
NRS 48.045 is not implicated where the conduct referenced is not a bad act
or crime). Insofar as Emerson relies on Bean v. State, 81 Nev. 25,
398 P.2d
251 (1965), his reliance is misplaced for several reasons. First, Bean
predated the enactment of NRS 48.045, see 1971 Nev. Stat., ch. 402, § 30,
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at 781 (enacting NRS 48.045), and Emerson has not addressed its
application to current evidentiary statutes. Second, unlike in Bean, the
record does not show that the State sought to impermissibly establish that
the defendant was "the sort of person who carries deadly weapons." Bean,
81 Nev. at 35,
398 P.2d at 257 (internal quotation marks omitted). Because
a prior-bad-act objection lacked merit, Emerson did not demonstrate
deficient performance. See Ennis v. State, 122 Nev. 694, 706,
137 P.3d 1095,
1103 (2006) ("Trial counsel need not lodge futile objections to avoid
ineffective assistance of counsel claims."). He also did not demonstrate
prejudice given that there was overwhelming evidence of his guilt and the
record was clear that the other firearms were not connected to the shooting.
See Bean, 81 Nev. at 35,
398 P.2d at 257 (concluding that it was
"inconceivable that the weapons affected the outcome given the weight of
evidence of guilt and that the weapons were plainly unrelated to the crime);
see also Emerson v. State, Docket No. 70606 (Order of Affirmance, January
18, 2018) (finding overwhelming evidence of guilt). The district court
therefore did not err in denying this claim without an evidentiary hearing.
Emerson next argues that trial counsel should not have
stipulated to admitting the firearm and ammunition evidence. As Emerson
has not shown that the evidence was not admissible, he has not shown that
the evidence would not have been admitted absent the stipulation.
Emerson thus has not shown deficient performance or prejudice in this
regard. The district court therefore did not err in denying this claim without
an evidentiary hearing.
Emerson next argues that trial counsel should have challenged
testimony that there was a stolen vehicle located outside of the apartment
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building where the police found him. This fleeting comment did not suggest
any bad act related to Emerson, and it falls squarely beyond the scope of
NRS 48.045(2). Emerson has not shown that counsel omitted a meritorious
objection and thus has shown neither deficient performance nor prejudice.
The district court therefore did not err in denying this claim without an
evidentiary hearing.
Emerson next argues that trial counsel should have called Mr.
Nkombengnondo to testify or requested a continuance to secure his
attendance. Emerson acknowledges that counsel unsuccessfully attempted
to locate and subpoena Nkombengnondo before trial and has not shown that
counsel's efforts in this regard were objectively unreasonable. Further,
Emerson has not shown deficient performance or prejudice in counsel's not
requesting a continuance when counsel could not locate the witness at that
time and thus would not have been able to assure the trial court that a
continuance might yield the witness's appearance. The district court
therefore did not err in denying this claim without an evidentiary hearing.
Emerson next argues that trial counsel should have called
Detective Ivie to testify. He argues that Ivie would have testified about
material information Ivie learned during witness interviews that was not
otherwise presented at trial. Barring an exception that Emerson has not
identified, such testimony would have been inadmissible hearsay. See NRS
51.065 (providing that hearsay is generally inadmissible). Emerson
accordingly has not shown deficient performance or prejudice in this regard.
Emerson also argues that this testimony would have established that Ivie
was confrontational and unprofessional during witness interviews. Ivie's
purportedly unprofessional demeanor at the early stages of the
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investigation was not probative of Emerson's guilt or innocence, and
Emerson has not shown deficient performance or prejudice based on
counsel's failure to present testimony relevant to the credibility of a nontestifying investigator. The district court therefore did not err in denying
this claim without an evidentiary hearing.
Emerson next argues that trial counsel should have retained a
video surveillance expert. Emerson does not specifically allege how an
expert would have assisted the defense in a way that would have led to a
different outcome. As a result, Emerson has not shown deficient
performance or prejudice. See Molina v. State, 120 Nev. 185, 192,
87 P.3d
533, 538 (2004) (concluding that habeas petitioner had not demonstrated
prejudice for ineffective-assistance claim where he did not address "the
quality of evidence that [trial counsel] would have developed with additional
preparation"). The district court therefore did not err in denying this claim
without an evidentiary hearing.
Emerson next argues that trial counsel should have
investigated his lease agreement and presented it as evidence to rebut the
State's representation that he lived at another location. He argues that this
would have cast doubt on the State's theory of the case. Emerson has not
demonstrated deficient performance or prejudice. That Emerson leased an
apartment elsewhere held little relevance given evidence and witness
testimony that supported the State's theory. The district court therefore
did not err in denying this claim without an evidentiary hearing.
Emerson next argues that trial counsel should have objected to
improper closing arguments. In the identified instances, the State argued
that the jury may reach certain conclusions based on evidence produced at
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trial. These are permissible inferences for the State to argue in closing. See
Miller v. State, 121 Nev. 92, 100,
110 P.3d 53, 59 (2005) ("[T]he prosecutor
may argue inferences from the evidence and offer conclusions on contested
issues." (internal quotation marks omitted)). Because an objection therefore
would have been futile, Emerson has not shown deficient performance or
prejudice. Insofar as Emerson raises a trial-error claim based on these
instances of alleged prosecutorial misconduct, such a claim should have
been raised, if at all, on direct appeal, and Emerson has not argued good
cause and actual prejudice to excuse the applicable procedural bar. See NRS
34.810(1)(b)(2); NRS 34.810(3). The district court therefore did not err in
denying this claim without an evidentiary hearing.
Emerson next argues that trial counsel should not have played
an audio recording containing the sound of gunshots during closing
argument because the ensuing admonishment jeopardized his credibility
before the jury. The audio recording was not evidence that had been
produced at trial. The trial court promptly recognized that the recording
was not evidence and admonished the jury to disregard it. Counsel arguably
performed deficiently in referencing materials not in evidence in closing.
Emerson, however, was not prejudiced by the lone chastisement of trial
counsel because it was brief and not extreme. See Randolph v. State, 117
Nev. 970, 985,
36 P.3d 424, 434 (2001) (concluding that the defense was not
prejudiced by the district court's expressions of annoyance with counsel that
"numbered only two and were not extreme"); cf. Rose v. State, 123 Nev. 194,
209,
163 P.3d 408, 418 (2007) (concluding that the defendant was not
prejudiced by a prosecutor's improper reference in closing argument to
materials not in evidence where the trial court sustained the defense
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objection and admonished the jury). The district court therefore did not err
in denying this claim without an evidentiary hearing.
Emerson next argues that appellate counsel inadequately
challenged the admissibility of the firearm evidence. This court rejected
Emerson's firearm-evidence claim on direct appeal on two grounds: he
stipulated to its admission, and he did not identify the challenged evidence
in his appellate brief. Emerson, Docket No. 70606, Order of Affirmance at
4-5. Our review of the prior appeal leads us to question whether our prior
conclusion regarding the adequacy of the appellate brief on direct appeal
was correct. Cf. Hsu v. Cty. of Clark, 123 Nev. 625, 630-31,
173 P.3d 724,
729 (2007) (recognizing that the doctrine of the law of the case may not
apply where the prior determination is clearly erroneous). And, Emerson
has not shown prejudice because the appellate claim also failed on an
alternative basis (trial counsels stipulation). The district court therefore
did not err in denying this claim without an evidentiary hearing.
Emerson next argues that appellate counsel should have
argued that the stipulation to admit the firearm evidence constituted
ineffective assistance of trial counsel. And he argues that trial counsel's
ineffectiveness was so plain as to warrant relief without an evidentiary
hearing, such that the ineffective-assistance claim could have been raised
for the first time in the direct appeal. Cf. Archanian v. State, 122 Nev. 1019,
1036,
145 P.3d 1008, 1020-21 (2006) ("This court has repeatedly declined to
consider ineffective-assistance-of-counsel claims on direct appeal unless the
district court has held an evidentiary hearing on the matter or an
evidentiary hearing would be needless."). Because this ineffective-assistance-of-trial-counsel claim lacks merit as discussed above, Emerson
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has shown neither deficient performance nor prejudice based on appellate
counsel's failure to raise the claim. The district court therefore did not err
in denying this claim without an evidentiary hearing.
Emerson next argues that appellate counsel should have shown
that the evidence was not overwhelming because the record contained
conflicting evidence of guilt. Appellate counsel, however, raised this
argument, identifying the same portions of the record that Emerson now
invokes to assert ineffectiveness. Emerson thus has not shown deficiency
or prejudice. The district court therefore did not err in denying this claim
without an evidentiary hearing.
Emerson next argues that appellate counsel should have
challenged the jury instructions on reasonable doubt, express and implied
malice, and equal and exact justice. As this court has upheld the language
used in those instructions, see, e.g., Evans v. State, 112 Nev. 1172, 1190-91
& n.19,
926 P.2d 265, 277-78 & n.19 (1996) (reasonable doubt instruction);
Leonard v. State,
117 Nev. 53, 78-79,
17 P.3d 397, 413 (2001) (express- andimplied-malice instruction); Leonard v. State,
114 Nev. 1196, 1209,
969 P.2d
288, 296 (1998) (equal-and-exact-justice instruction), we conclude that
Emerson has not shown deficient performance or prejudice. The district
court therefore did not err in denying this claim without an evidentiary
hearing.
Emerson next incorporates by reference the claims raised in the
pro se petition filed below. We decline to address those claims for two
reasons: it is improper to incorporate claims by reference, NRAP 28(e)(2),
and Emerson has not provided cogent argument or supporting authority,
Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987).
8
Lastly, Emerson argues 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), Emerson has not demonstrated
multiple instances of deficient performance to cumulate.
Having considered Emerson's contentions and concluded that
relief is not warranted, we
ORDER the judgment of the district court AFFIRMED.
J.
Cadish
Piad,
Pickering
, J.
Herndon
CC: Chief Judge, Eighth Judicial District Court
Department 5, Eighth Judicial District Court
Law Office of Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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