Opinion
84823-COA
02-21-2023
MALIK TYRELL KENDRICK, Appellant, v. THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
Malik Tyrell Kendrick appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus filed on May 4, 2021, and a supplement filed on January 18, 2022. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
Kendrick claims the district court erred by denying his claims of ineffective assistance of trial counsel. To demonstrate ineffective assistance of trial counsel, a petitioner must show counsel's performance was deficient in that it fell below an objective standard of reasonableness and 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). Both components of the inquiry must be shown. Strickland, 466 U.S. at 687. A petitioner must raise claims supported by specific factual allegations that are not belied by the record and, if true, would entitle him to relief. See Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). 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).
First, Kendrick claimed that trial counsel were ineffective for failing to move to suppress statements obtained during his first police interview because he was in custody but not informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). "Miranda warnings are required when a defendant is subjected to a custodial interrogation." Carroll v. State, 132 Nev. 269, 281, 371 P.3d 1023, 1032 (2016) (internal quotation marks omitted). A defendant is in custody and entitled to Miranda warnings if a reasonable person in the circumstances would not believe he was free to leave. Silva v. State, 113 Nev. 1365, 1370, 951 P.2d 591, 594 (1997). Courts consider the totality of the circumstances to determine whether a defendant is in custody, including the interrogation site, the length and form of the questioning, and any objective indicia of arrest. Belcher v. State, 136 Nev. 261, 264, 464 P.3d 1013, 1021 (2020). Objective indicia of arrest include:
(1) whether the suspect was told that the questioning was voluntary or that he was free to leave; (2) whether the suspect was not formally under arrest; (3) whether the suspect could move about freely during questioning; (4) whether the suspect voluntarily responded to questions; (5) whether the atmosphere of questioning was police-dominated; (6) whether the police used strong-arm tactics or deception during questioning; and (7) whether the police arrested the suspect at the termination of questioning.State v. Taylor, 114 Nev. 1071, 1082 n.l, 968 P.2d 315, 323 n.l (1998). "An individual is not in custody for Miranda purposes if the police are merely asking questions at the scene of the crime or where an individual questioned is merely the focus of a criminal investigation." Carroll, 132 Nev. at 282, 371 P.3d at 1032 (citing Taylor, 114 Nev. at 1082, 968 P.2d at 323).
The interrogation site, the length and form of questioning, and the lack of objective indicia of arrest indicated that Kendrick was not in custody during the first interview. A police report generated before trial indicated that the interview took place at the crime scene-Kendrick's workplace-and was less than 20 minutes long. Kendrick was told he was not under suspicion and was allowed to leave at the conclusion of the interview. Accordingly, Kendrick failed to demonstrate counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome at trial but for counsel's failure to file a motion to suppress Kendrick's statements made during the first interview. Therefore, we conclude the district court did not err by denying this claim.
Second, Kendrick claimed that trial counsel were ineffective for failing to move to suppress statements obtained during his second un-Mirandized police interview because his "actions and statements," including his "responses to taking a gunshot residue test," were improperly used against him at trial. The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V. However, "the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a Testimonial Communication that is incriminating." Fisher v. United States, 425 U.S. 391, 408 (1976).
The police report provided that Kendrick agreed to voluntarily submit to DNA and gunshot residue testing but then engaged in conduct that would undermine the accuracy of the gunshot residue testing. The report also provided that Kendrick told detectives that he was "becoming sick" and later that "he had vomited on the [bathroom] floor."
Kendrick failed to allege how his verbal statements were compelled or incriminating and how counsel's failure to suppress those statements affected the outcome of his trial. In addition, Kendrick failed to demonstrate that his nonverbal conduct was a testimonial communication that should have been excluded due to lack of Miranda warnings. Accordingly, Kendrick failed to demonstrate counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome at trial but for counsel's failure to file a motion to suppress Kendrick's statements made during the second interview. Therefore, we conclude the district court did not err by denying this claim.
Third, Kendrick claimed that trial counsel were ineffective for failing to challenge juror misconduct. Kendrick alleged that a family member saw a then-prospective juror speak to a member of the victim's family. Only certain types of extraneous influence, such as jury tampering, are presumptively prejudicial to the jury's verdict while the other types "must be analyzed in the context of the trial as a whole." Meyer v. State, 119 Nev. 554, 564-65, 80 P.3d 447, 455-56 (2003). Kendrick did not describe the respective family members nor the substance of the conversation and thus failed to allege specific facts demonstrating that a juror misconduct challenge would have been successful. Accordingly, Kendrick failed to demonstrate counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome at trial but for counsel's inaction. Cf. Kirksey v. State, 112 Nev. 980, 990, 923 P.2d 1102, 1109 (1996) (providing that a petitioner claiming ineffective assistance of counsel for failure to file a motion to suppress must demonstrate that the motion would have been meritorious); see also Ennis u. 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."). Therefore, we conclude the district court did not err by denying this claim.
Fourth, Kendrick claimed that trial counsel were ineffective for failing to investigate a possible alternative suspect who may have committed the offense and fled to a nearby 7-Eleven store. In support of his claim, Kendrick pointed to the testimony of a defense witness whose description of the person fleeing the crime scene differed from descriptions given by other witnesses. Kendrick also pointed to a midtrial conversation he had with counsel in which counsel asked if anyone had been "beefing with" the victim, Kendrick briefly described someone who had been and offered information on where that person may have lived, but counsel dismissed this information without looking into it further. Kendrick failed to allege any specific facts to indicate that the two people referred to are the same person. In particular, Kendrick offered no physical description of the person who allegedly had been beefing with the victim. Accordingly, Kendrick failed to demonstrate counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome at trial but for counsel's inaction.
On appeal, Kendrick also points to a report of a shoplifter in the area and speculates that perhaps that person would match the description of the person described by the defense witness. Kendrick did not raise this argument below, and we decline to consider it for the first time on appeal. See McNelton v. State, 115 Nev. 396, 415-16, 990 P.2d 1263, 1275-76 (1999).
Fifth, Kendrick claimed that trial counsel were ineffective for failing to discover Kendrick's recorded jailhouse calls and to advise him about their admissibility. Kendrick alleged this resulted in counsel's failure to properly advise him regarding the State's plea offer, which Kendrick claims he would have accepted had he known the inculpatory statements within the calls were admissible. He also alleged that counsel's inaction led to the presentation of a defense theory that was rebutted by the phone calls when the defense could have instead pursued a theory of self-defense.
Before trial, counsel inquired of the State whether "any telephone recordings were to be used" and explained in a posttrial hearing that counsel's inquiry was based on the fact that the use of jailhouse phone calls had been "coming up more and more in cases." Kendrick failed to allege facts that would cause counsel to know to further investigate the existence of inculpatory jailhouse phone calls where an officer of the court represented that no such calls would be used. Kendrick thus failed to demonstrate counsel's performance fell below an objective standard of reasonableness.
The State was in possession of a recording of the jailhouse phone calls prior to trial but did not disclose them until after the defense rested its case in chief. See Kendrick v. State, No. 78352, 2020 WL 2575745, at *1 (Nev. May 20, 2020) (Order of Affirmance).
Kendrick also failed to demonstrate prejudice related to the outcome of his trial. While Kendrick alleged the victim had assaulted him shortly before the date of the offenses, Kendrick failed to allege specific facts indicating he acted in self-defense. He did not allege that he fired his gun because he maintained a reasonable belief he was in imminent danger of death or great bodily harm and self-protection was absolutely necessary. See Culverson v. State, 106 Nev. 484, 487, 797 P.2d 238, 239 (1990) (providing requirements for justifiable homicide to apply); see also NRS 200.200 (providing the requirements for self-defense to apply); NRS 200.275 (applying the self-defense requirements beyond homicide). Kendrick thus failed to demonstrate a reasonable probability of a different outcome at trial but for counsel's inaction.
Finally, Kendrick claimed that his conviction should be reversed due to the cumulative effect of trial counsel's errors. Even assuming that any such errors may be cumulated, see McConnell v. State, 125 Nev. 243, 259 n.17, 212 P.3d 307, 318 n.17 (2009), Kendrick failed to demonstrate multiple errors to cumulate. Accordingly, we conclude the district court did not err by denying this claim. See Burnside v. State, 131 Nev. 371, 407, 352 P.3d 627, 651 (2015) (noting cumulative error claims require "multiple errors to cumulate").
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
Gibbons, C.J., Westbrook, J.
BULLA, J., concurring in part and dissenting in part:
Although I concur in the majority's decision in large part, I write separately to dissent in part because I am troubled by the district court's decision to not conduct an evidentiary hearing on one of Kendrick's ineffective assistance of counsel claims. As the Nevada Supreme Court recently indicated, "We have long recognized a petitioner's right to a postconviction evidentiary hearing when the petition asserts claims supported by specific factual allegations not belied by the record that, if true, would entitle him to relief." Thomas v. State, 138 Nev., Adv. Op. 37, 510 P.3d 754, 764 (2022) (internal quotation marks omitted). One reason for this is to provide a "more comprehensive picture" of the issue to be resolved. Id.
In this case, Kendrick claims that his trial counsel were ineffective for failing to discover the existence of his jailhouse calls, and the substance thereof, before proceeding to trial. Kendrick argues that his counsel had the burden to follow up on these calls.
I note that Kendrick suggests that his counsel should have asked him whether he made any jailhouse calls, which of course raises the question of why didn't Kendrick inform his counsel about any such calls he may have made? But even if Kendrick should have done so, this does not negate the need for an evidentiary hearing to determine the reasonableness of counsel's conduct.
Indeed, the record supports that Kendrick's counsel during the pretrial conference asked the State if "telephone recordings were to be used" at trial and later explained that he had asked the question because jailhouse phone calls had been "coming up more and more in cases." Before either party had presented their respective cases to the jury, the State indicated that it was not going to introduce into evidence any recordings of jailhouse calls. No further follow up was undertaken by Kendrick's counsel, and it is unclear as to whether this was for a strategic reason or if the State's representation satisfied counsel's concerns.
On appeal, Kendrick asserts the claim of ineffective assistance of counsel supported by the following facts that are not belied by the record, namely that his counsel failed to ask him if he had made any jailhouse calls, inquire about the substance of any such calls, and advise him of the admissibility of jailhouse calls. I would point out that asking the State if it was going to "use" jailhouse calls is not the same as asking if such calls exist. Finding out if such calls existed and, if so, the substance of those calls before presenting a defense to the jury might be considered a reasonable undertaking. An evidentiary hearing would help determine the reasonableness of defense counsel's conduct under the circumstances presented.
Further, in my view, Kendrick also sufficiently pleaded the prejudice prong of Strickland by arguing that had he known the calls could have been used against him at trial, he would have accepted the State's plea deal. Thus, he argues he was prejudiced by not being fully informed about the calls before rejecting a plea and proceeding to trial.
For these reasons, I would reverse the ineffective assistance of counsel claim related to the jailhouse calls and remand for an evidentiary hearing to resolve Kendrick's claim.
Hon. Michelle Leavitt, District Judge