Petition for Writ of Certiorari — Thomas Richardson, Petitioner v. Nevada

IN THE SUPREM E COURT OF THE STATE OF NEVADA

No. 77176

THOMA S RICHAR DSON,

Appellan t,

FILED

vs.

THE STATE OF NEVADA ,

Res ondent.

FEB 2 ~ 2021

ELIZABETH IL BROWN

Cl.ERK 9f~MBAE COURT

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ORDER OF AFFIRM ANCE

This is an appeal from a district court order denying appellan t

Thomas Richards on's postconv iction petition for a writ of habeas corpus.

Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Richards on and his girlfriend 's 18-year-o ld son, Robert

Dehnart, robbed and beat to death Steve Folker and Estelle Feldman at

Feldman 's home in Las Vegas. They had agreed to murder the victims in a

scheme to rob Folker. A jury convicted Richards on of conspirac y to commit

murder, two counts of first-deg ree murder with the use of a deadly weapon,

burglary while in possessio n of a deadly weapon, conspirac y to commit

robbery, and robbery with the use of a deadly weapon and sentence d him to

death for each murder. Richards on's convictio ns and sentence s were

affirmed on appeal.

Richards on v. State, Docket No. 54951 (Order of

Affirman ce, Novembe r 9, 2012). Richards on filed a timely postconv iction

petition for a writ of habeas corpus, which the district court denied after

conducti ng an evidentia ry hearing. In this appeal, Richards on contends

that the district court judge should have been disqualif ied from the

postconv iction proceedi ng and that the district court erred in denying his

claims of ineffectiv e assistanc e of trial and appellate counsel and trial error.

We affirm.

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Disqualification

Richardson argues that the chief judge erred in denying his

motion to disqualify Judge Leavitt. He argues that he demonstrated bias

and the chief judge applied the incorrect standard in evaluating his claim

of bias.

Judges have a "duty to preside . . . in the absence of some

statute, rule of court, ethical standard, or other compelling reason to the

contrary." Goldman u. Bryan, 104 Nev. 644,649, 764 P .2d 1296, 1299 (1988)

(internal quotation marks omitted), disavowed on other grounds by

Halverson u. Hardcastle, 123 Nev. 245, 266, 163 P.3d 428, 443 (2007). "A

judge is presumed to be impartial, and the party asserting the challenge

carries the burden of establishing sufficient factual grounds warranting

disqualification." Rippo v. State, 113 Nev. 1239, 1248, 946 P.2d 1017, 1023

(1997).

Under Nevada law, a judge must be disqualified whenever her

"impartiality might reasonably be questioned," NCJC Rule 2.1 l(A), which

presents an objective inquiry: "whether a reasonable person, knowing all

the facts, would harbor reasonable doubts about [the judge's] impartiality,"

Ybarra u. State, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011) (quoting PETA v.

Bobby Berosini, Ltd., 111 Nev. 431, 438, 894 P .2d 337, 341 (1995)).

Additionally, the Fourteenth Amendment's Due Process Clause requires

disqualification "when, objectively speaking, 'the probability of actual bias

on the part of the judge ... is too high to be constitutionally tolerable."'

Rippo v. Baher, 137 S. Ct. 905, 907 (2017) (quoting Withrow v. Larliin, 421

U.S. 35, 47 (1975)).

The chief basis for Richardson's allegation of bias was an

adverse ruling during his trial that this court concluded was erroneous

when presented with the issue on direct appeal. A judge's errors during the

course of a trial, however, are not evidence of personal bias warranting

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disqualification. See In re Petition to Recall Dunleavy, 104 Nev. 784, 789,

769 P.2d 1271, 1275 (1988) ("[R]ulings and actions of a judge during the

course of official judicial proceedings do not establish legally cognizable

grounds for disqualification."). See generally Richard E. Flamm, Judicial

Disqualification: Recusal and Disqualification of Judges 104 7-60 (3d ed.

2017) (discussing general agreement that a judge's erroneous rulings do not

provide grounds for seeking to disqualify that judge absent evidence that

the errors were attributable to judicial bias). Accordingly, the fact that this

court concluded on direct appeal that Judge Leavitt abused her discretion

with respect to one ruling at trial is not sufficient to show bias or an

appearance of bias. Similarly, Judge Leavitt's alleged errors in other cases

are insufficient to show bias or an appearance of bias.

Accordingly,

Richardson did not carry his burden of demonstrating that disqualification

was warranted based on any erroneous rulings Judge Leavitt made during

the course of his trial or any other judicial proceeding.

The second basis for Richardson's disqualification motion was

Judge Leavitt's alleged bias against his postconviction counsel based on

events related to counsel's representation of the defendant in another case

(State v. Ross) where counsel allegedly attacked Judge Leavitt's integrity in

his appellate briefing, and the Judicial Discipline Commission's related

reprimand of Judge Leavitt.

Although Nevada law provides for

disqualification where "[t]he judge has a personal bias or prejudice

concerning ... a party's lawyer," NCJC Rule 2.ll(A)(l), a judge's bias or

animosity toward a party's attorney requires disqualification "only in

extreme situations," Las Vegas Downtown Redeu. Agency v. Hecht, 113 Nev.

644,649, 940 P .2d 134, 137 (1997). Here, it does not appear that Richardson

established bias where Judge Leavitt disavowed a ny such bias and

Richardson does not point to any specific comments or conduct by Judge

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Leavitt that show such ill will toward Richardson's postconviction counsel

that Judge Leavitt's impartiality could be reasonably questioned.

See

Sonner, 112 Nev. 1328, 1335, 930 P.2d 707, 712 (1996) ("[T]his court has

always accorded substantial weight to a judge's determination that he can

fairly and impartially preside over a case"). And the simple fact that counsel

successfully argued on appeal in another case that Judge Leavitt erred

would not lead an objectively reasonable person to harbor doubt about

Judge Leavitt's impartiality or present a situation where the probability of

actual bias on the judge's part is too high to be constitutionally tolerable. A

conclusion otherwise would undermine the general rule observed above that

a judge's erroneous rulings do not provide grounds for disqualification.

Similarly, the mere fact that Judge Leavitt's conduct in another proceeding

resulted in a disciplinary reprimand also does not create an intolerably high

probability of actual bias in this case nor would it lead an objectively

reasonable person to harbor doubt about Judge Leavitt's impartiality. For

these reasons, we conclude that the chief judge did not err in denying the

motion to disqualify Judge Leavitt from the postconviction proceedings.

Ineffective assistance of counsel

Richardson contends that the district court erred in denying his

claims that trial and appellate counsel provided ineffective assistance.

Under the two-part test in Strichland v. Washington , a petitioner must

show (1) that counsel's performance fell below an objective standard of

reasonableness and (2) prejudice. 466 U.S. 668, 687-88, 694 (1984); Kirhsey

v. State, 112 Nev. 980, 987-88, 998, 923 P .2d 1102, 1107, 1114 (1996)

(applying Strickland to appellate-counsel claims).

For purposes of the

deficiency prong, counsel is strongly presumed to have provided adequate

assistance and exercised reasonable professional judgment in all significant

decisions. Stricldand, 466 U.S. at 690; Ennis v. State, 122 Nev. 694, 704SuPAa.COURT

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05, 137 P.3d 1095, 1102 (2006). For purposes of the prejudice prong with

respect to appellate counsel, a petitioner must demonstrate that any issues

omitted by appellate counsel would have had a reasonable probability of

success on appeal.

Kirksey, 112 Nev. at 998, 923 P.2d at 1114. The

petitioner bears the burden of proving the facts underlying his

postconviction claims by a preponderance of the evidence. Means v. State,

120 Nev. 1001, 1012, 103 P .3d 25, 33 (2004). A court need not consider both

prongs of the Strickland test if a petitioner makes an insufficient showing

on either prong. Strickland, 466 U.S. at 697.

An evidentiary hearing is only required if the claims are

supported by specific factual allegations that are not belied by the record

and, if true, would have entitled the petitioner to relief. Hargrove v. State,

100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). "A claim of ineffective

assistance of counsel presents a mixed question of law and fact, subject to

independent review," Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508

(2001), but the district court's purely factual findings are entitled to

deference, Lara v. State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004).

Failure to challenge delay in appointing counsel

The State of Nevada filed a criminal complaint against

Richardson while he was in jail in California on unrelated charges. Nevada

counsel was not appointed until Richardson appeared in a Nevada court

over one year later.

Richardson argues that trial counsel should have

challenged the delay in appointing counsel because it violated his

fundamental rights. 1

Richardson principally asserts this issue as a claim of trial error. As

such, it could have been raised on direct appeal. Richardson has not alleged

good cause to overcome the procedural default under NRS 34.810(1)(b)(2).

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We conclude that Richards on has not demonst rated deficient

performa nce or prejudice .

The Sixth Amendm ent right to counsel is

triggered at the outset of judicial proceedin gs, Dewey u. State, 123 Nev. 483,

488, 169 P.3d 1149, 1152 (2007), and requires the assistanc e of counsel at

all critical stages of the proceedin gs, Brinhley v. State, 101 Nev. 676, 678,

708 P .2d 1026, 1028 (1985). Even if the filing of the criminal complain t

started judicial proceedi ngs in Nevada, it was not itself a critical stage that

warrante d the presence of counsel. See Rothgery v. Gillespie Cty., 554 U.S.

191, 198 (2008) (recogniz ing that commencement of prosecut ion has been

tied to "formal charge, prelimin ary hearing, indictme nt, informat ion, or

arraignm ent" (quotatio n marks omitted)) ; McCarty v. State, 132 Nev. 218,

223, 371 P.3d 1002, 1005 (2016) (conclud ing that r ight to counsel attaches

when defendan t is brought before judicial officer where he is informed of

charges against him and his rights). Richards on does not allege that he was

compelle d to participa te without counsel during any interroga tion or

adversar ia l proceedi ng after the complain t was filed. S ee United States v.

Gouveia, 467 U.S. 180, 190 (1984) (recogniz ing that right to counsel p rotects

"accused during trial-type confront ations with the prosecuto r"). Instead,

Richards on was represen ted by counsel when he ultimate ly appeared before

a judicial officer in Nevada. As Richards on has not demonst rated that the

failure to appoint counsel earlier amounte d to a Sixth Amendm ent

violation , he did not demonst rate that trial counsel should have raised an

objection or that an objection would have had merit or somehow affected the

outcome at trial. Therefor e, the district court did not err in denying this

claim.

SuPflEMECDURT

To the extent that Richards on sufficien tly asserts a related claim of

ineffectiv e assistanc e of counsel, we address this issue in that context.

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Failure to effectively litigate challenge to evidence found at the crime

scene

Richards on contends that trial counsel did not effectivel y

litigate his objection to testimon y about the "Autoclu b 500" hat that was

found at the crime scene and used as evidence that he was at the scene of

the killings. At trial, Richards on argued that the police acted in bad faith

by not collectin g the hat when they saw it at the crime scene. That

argumen t was unsucces sful, and he now asserts that counsel should have

made better argumen ts to demonst rate inadequa cies in the police

investiga tion and that the hat was material .

Richards on failed to demonst rate deficient performa nce or

prejudice . He still has not demonst rated that the officers understo od the

hat's significa nce when they saw it at the scene-i. e., that it might have

belonged to a suspect- such that further investiga tion or efforts to impeach

the law enforcem ent witnesse s would have bolstered the defense motion

regardin g the officers' failure to collect the hat. See Kirhsey, 112 Nev. at

990, 923 P.2d at 1109 (recogniz ing that to prove ineffectiv e assistanc e of

counsel a petitione r must show the motion would have been meritorio us and

that there was a reasonab le probabili ty of a different outcome at trial if the

evidence had been excluded ).

First, it does not appear that further

investiga tion to determin e when officers saw surveilla nce video of appellan t

wearing a hat would have bolstered the defense motion at trial. In

particula r, testimon y establish ed that the logo was obscured on the hat that

appellan t was seen wearing in a Taco Bell surveilla nce video such that

officers could not identify the hat from the video as the same hat

photogra phed at the crime scene. Second, it does not appear that the

detective s viewed the crime scene photogra phs before visiting the Riverside

home where they saw a picture of Richards on wearing a similar hat.

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Although defense counsel's examina tion of Detective Vacarro at a pretrial

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hearing suggested the detective viewed the crime scene photographs in

September, evidence logs show they were developed in October and no

actual testimony supports the assertion that detectives viewed them before

going to the Riverside home. 2

Third, Richardson did not allege what

manner of technology the police department could have used to enhance the

photographs or demonstrate that it was possible to do so. Fourth, the record

of the pretrial hearing shows that counsel explored whether the detectives

sought to obtain any photographs taken by the company that cleaned the

crime scene and learned that detectives did not seek those photographs, the

cleaning company did not retain the photographs for more than a year, and

the photographs taken by the cleaning company were unlikely to be more

comprehensive than those taken by investigators.

Finally, Richardson's

argument that counsel should have asserted that access to the hat itself

would be the only way to confirm that it was the same hat in the Riverside

photograph is subject to the same infirmities as the arguments advanced in

prior proceedings. The contention that the hat found at the crime scene

might not be identical to the hat shown in the Riverside photo is still

"merely a hoped-for conclusion." Sheriff, Clari?, Cty. v. Warner, 112 Nev.

1234, 1240, 926 P.2d 775, 778 (1996).

Richardson has not identified any evidence or proffered any

argument that trial or appellate counsel could have offered that had a

reasonable probability of convincing the trial court or this court that the hat

was material when the detectives handled it at the scene. 3 See Daniels v.

~The hat appears in photographs taken on September 14, 2005, by

Crime Scene Analyst Marnie Carter. The record indicates that these

photographs were taken with a film ca mera.

Richardson also contends that counsel should have challenged the

detectives' narrative of how they observed the hat in a photograph at his

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State, 114 Nev. 261, 267, 956 P .2d 111, 115 (1998) (recognizing that the

failure to gather evidence only amounts to a due process violation where the

evidence is material and the failure to gather evidence was the result of

gross negligence or bad faith). Therefore, the district court did not err in

denying this claim.

Failure to effectively challenge admission of hammer and related

evidence

Richardson argues that trial and appellate counsel did not

adequately object to or impeach evidence about a hammer and sales record

introduced at trial. Based on Dehnart's testimony about purchasing the

hammer used in the crime, the State introduced a sales record from Home

Depot and a hammer with the same UPC code as indicated on the record.

The court admitted the sales record, and the defense did not object. Counsel

did object, however, to the admission of the hammer.

The trial court

overruled that objection, and that ruling was subsequently affirmed.

Richardson, Docket No. 54951, Order of Affirmance at 7.

Richardson

asserts that counsel should have challenged the admission of the hammer

and sales record based on the failure to notice the witness and relevance.

Richardson did not demonstrate that trial counsel acted

unreasonably in not more aggressively challenging the admission of the

hammer as there was a strategic reason for not doing so and that decision

Sul'REMECOURT

home and should have investigated whether they a ctually returned to the

crime scene after viewing that photograph. These arguments lack merit

because he does not point to any evidence that counsel failed to uncover that

would undermine the testimony. See Hargrove, 100 Nev. at 502, 686 P .2d

at 225. Richardson also does not provide cogent argument or relevant

authority as to how counsel should have impeached testimony about

detectives returning to the crime scene. See Maresca v. State, 103 Nev. 669,

673, 748 P.2d 3, 6 (1987) (holding that it is appellant's responsibility to

provide cogent argument).

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"is virtually unchalle ngeable absent extraord inary circumst ances." Lara,

120 Nev. at 180, 87 P.3d at 530 (internal quotation marks omitted).

Although the hammer incidenta lly bolstered Dehnart' s testimon y, it did not

implicate Richards on any further as a participa nt in the crime than any

other evidence consisten t with Dehnart' s testimon y. The hammer did not

corrobor ate Dehnart' s testimon y any more than the surveilla nce video

showing Folker, Dehnart, and Richards on together; the medical examine r's

testimon y that the injuries were caused by a hammer; the descripti on of the

hammer strikes; and testimon y about Richards on throwing away new work

boots. Instead, the sales record put the murder weapon in Dehnart' s hand.

This was consisten t with Richards on's theory of defense -that Dehnart

acted on his own. Therefor e, the district court did not err in concludin g that

trial counsel did not perform deficient ly with respect to this evidence .

Even assumin g counsel should have further challeng ed the

evidence , Richards on did not demonst rate that had trial counsel objected to

the testimon y on the basis that the witness was not noticed, there is a

reasonab le probabil ity that the result of the trial would have been different.

The failure to notice a witness does not necessari ly require the exclusion of

the witness's testimon y. See Burnside v. State, 131 Nev. 371, 384, 352 P.3d

627, 637 (2015); see also NRS 174.234( l)(a)(2) (requirin g the State to serve

and file notice of witnesse s at least five judicial days before trial). The court

would have only been required to prohibit T . Trenholm's testimon y if it

conclude d that the failure to provide notice was the result of bad faith. NRS

174.234(3 )(a). Trial counsel were not aware of any circumst ances that

would show bad faith, and Richards on has not alleged any circumst ances of

which counsel should have been aware. Notably, the State did not need to

corrobor ate Dehnart' s testimon y until he pleaded guilty arid agreed to

testify less than a month before Richards on's trial. Thereaft er, detective s

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attemp ted to recover the actual murder weapon based on Dehnar t's proffer

and when unsucce ssful in that endeav or, had to deduce the location of the

store Dehnar t visited based on other evidenc e. Thus, Richard son did not

demons trate a motion to exclude the evidenc e based on the failure to notice

would have been success ful. And even if the evidenc e had been exclude d,

Richard son did not demons trate a reasona ble probabi lity that the result of

the trial would have been differen t because the hamme r was not the only

evidenc e corrobo rating Dehnar t's testimo ny or showin g that Richard son

was involve d in killing the victims with a hamme r. Therefo re, the district

court did not err in denying this claim .

Richard son further argues that trial counsel should have

objecte d to the introdu ction of the hamme r and sales record on the basis

that they were irreleva nt and improp erly corrobo rated Dehnar t's testimo ny.

We disagre e. A relevan ce objectio n to the hamme r would have been futile

because the hamme r, introdu ced as a replica weapon , was relevan t to

demons trate the manner in which the victims died.

See NRS 48.015

("'[R]el evant evidenc e' means evidenc e having any tendenc y to make the

existen ce of any fact that is of consequ ence to the determ ination of the

action more or less probabl e than it would be withou t the evidenc e.");

Richard son, Docket No. 54951, Order of Affirma nce at 7. And even if an

objectio n would have been success ful, the1·e is no reasona ble probabi lity it

would have affected the outcom e at trial. Althoug h the hamme r may have

corrobo rated Dehnar t's testimo ny, other testimo ny and evidenc e provide d

more compel ling corrobo ration, includi ng the medica l examin er's testimo ny

about the injuries , observa tions of hamme r strikes at the scene, the

surveill ance video showin g Folker with Richard son and Dehnar t, evidenc e

that Richard son had discard ed new boots, and Richard son's bank deposit

on his return. See Cheath am v. State, 104 Nev. 500, 504-05, 761 P.2d 419,

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422 (1988) (recognizing that corroborating evidence need not be sufficient

to establish guilt and may be taken from the evidence as a whole). Also,

contrary to Richardson's assertion, some evidence connects the sales record

to Dehnart. The record memorializing the purchase of a single hammer was

from the store generally identified by Dehnart and the time printed on the

record is consistent with the testimony and the Taco Bell video. Considering

this evidence, Richardson did not demonstrate a reasonable probability of a

different result at the suppression hearing or trial had counsel challenged

the introduction of this evidence in the manner he now asserts. Nor did he

demonstrate appellate counsel was ineffective in this regard. Therefore, the

district court did not err in denying these claims.

Failure to introduce character evidence relating to Dehnart

Richardson argues that trial counsel should have introduced

evidence that Dehnart had threatened another individual with a hammer

or shown that Dehnart resorted to threats with a hammer as a matter of

habit.

Richardson did

not demonstrate

deficient

performance.

Dehnart's prior violent conduct was not admissible to prove that he acted in

conformity therewith at the time of the murders.

NRS 48.045(2); see

Mortensen v. State, 115 Nev. 273, 281, 986 P.2d 1105, 1110 (1999).

Richardson's argument that the evidence was admissible under the identity

exception to the general rule excluding prior bad act evidence is without

merit for two reasons. First, Dehnart's identity as the perpetrator was not

an issue in this case because he admitted his involvement and his

fingerprint was found at the scene. See Roshy v. State, 121 Nev. 184, 197,

111 P .3d 690, 698 (2005) (recognizing that evidence of a signature crime

may be admissible where identification of the perpetrator has not been

made). Second, a single prior incident in which Dehnart threatened another

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person with a hammer is insufficient to establish a "signature crime." See

Mortensen, 115 Nev. at 279-80, 986 P .2d at 1109-10 (concluding that two

incidents of "hot-headed, impulsive and brutish behavior" were not

sufficiently similar to charged shooting to introduce as modus operandi

evidence). Contrary to Richardson's arguments, a hammer is not a "unique

weapon" that makes the prior incident sufficiently similar to the charged

homicides. See, e.g., Conner v. State, 130 Nev. 457, 461, 327 P.3d 503, 506

(2014) (noting injuries consistent with hammer on victim's body);

Archanian v. State, 122 Nev. 1019, 1032, 145 P.3d 1008, 1018 (2006) (noting

hammer used in double homicide); Calambro v. State, 114 Nev. 106, 111,

952 P.2d 946, 949 (1998) (describing victim beat to death with a hammer);

Smith v. State, 110 Nev. 1094, 1097-98, 881 P .2d 649, 651 (1994) (noting

hammer used in triple homicide); Beets v. State, 107 Nev. 957, 959-60, 821

P.2d 1044, 1046-47 (1991) (noting hammer used in homicide and other

crimes).

Counsel also cannot be faulted for neglecting to argue that the

prior bad act evidence was admissible as habit evidence. Evidence of a

person's habit may be relevant to prove he acted in conformity therewith,

NRS 48.059(1), but only with a foundation establishing "that specific,

recurring stimuli have produced the same specific response often and

invariably enough to qualify as habit or routine," Thomas v. Hardwick, 126

Nev. 142, 151, 231 P.3d 1111, 1117 (2010). Thus, the single prior incident

at issue is insufficient to lay a proper foundation for the introduction of the

act as evidence of habit. See Wilson v. Volkswagen of Arn., Inc., 561 F .2d

494, 511 (4th Cir. 1977) (requiring that habit evidence demonstrate

systematic conduct in response to a repeated specific situation). Therefore,

the district court did not err in denying this claim.

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Failure to introduce character evidence related to Folker

In his direct appeal, Richardson argued that the district court

erred in excluding testimony about Folker's erratic behavior and financial

condition. We concluded that the evidence was properly excluded because

Dehnart did not allege self-defense and Richardson's defense was that he

was not in the mobile home during the attack. Richardson, Docket No.

54951, Order of Affirmance at 9-10.

Richardson argues that appellate

counsel failed to frame the argument properly to show that the evidence

was admissible as evidence supporting self-defense or evidence of habit.

Richardson did not demonstrate deficient performance or

prejudice. A defendant may "present evidence of a victim's character when

it tends to prove that the victim was the likely aggressor." Daniel v. State,

119 Nev. 498, 514, 78 P .3d 890, 901 (2003). When self-defense is at issue,

"evidence of specific acts showing that the victim was a violent person is

admissible if [the] defendant ... was aware of those acts." Id. at 515, 78

P.3d at 902. But here, the record does not indicate that Richardson knew

Folker or that he (or Dehnart, who worked for Folker) was aware of any

prior acts showing Folker was a violent person. The record also does not

indicate that Folker's alleged prior acts, in which Folker harassed his

former realtor and responded angrily to a newspaper staff member who

would not allow him to place an ad disparaging his realtor, tend to prove

that Folker was a violent person. See Burgeon v. State, 102 Nev. 43, 45-46,

714 P.2d 576, 578 (1986) (permitting admission of "specific acts which show

that the deceased was a violent and dangerous person" provided the accused

knew of those acts). Additionally, these two incidents were insufficient to

establish that Folker had a habit of aggressive behavior. See Wilson, 561

F.2d at 511. And even if trial counsel could have introduced this testimony,

Richardson did not demonstrate that he could have successfully argued self5uPAEME CouAT

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defense given the murder of Feldman. Therefore, the district court did not

err in denying this claim.

Failure to challenge aggravating circumstance

Richardson argues that trial counsel should have impeached

penalty phase testimony supporting the aggravating circumstance based on

his prior conviction for sexual assault.

In particular, he points to

inconsistencies between the sexual assault victim's testimony during the

court-martial proceeding that resulted in the prior conviction and her

testimony during the penalty phase.

We

conclude

that

Richardson

did

not

show

deficient

performance. At the penalty hearing, the victim testified about a sexual

assault Richardson committed over 1 7 years before. Given the passage of

time, inconsistences were to be expected. Nevertheless, the accounts were

largely consistent and Richardson

did not demonstrate that any

inconsistencies were so serious as to affect the outcome of the penalty

hearing. And because the State met its burden of proof solely by introducing

the prior convictions, no amount of cross-examination with the sexual

assault victim's prior inconsistent testimony would have had a reasonable

probability of changing the jury's finding of the aggravating circumstance.

Even if counsel had successfully impeached the victim's testimony that

Richardson later threatened her, it would have only given a slightly less

egregious impression of his actions.

And additional cross-examination

would have resulted in the jury spending more time hearing from a credible,

sympathetic witness. See Silva v. Woodford , 279 F.3d 825, 852 (9th Cir.

2002) (recognizing that limited cross-examination may be reasonable where

more extensive examination could have rendered a

witness more

sympathetic). Therefore, the district court did not err in denying this claim.

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Failure to challenge victim impact testimony

Richardson argues that counsel did not effectively challenge the

prior sexual assault victim's penalty hearing testimony about the

traumatizing effect the assault had on her and her son. He also argues that

counsel should have requested a curative instruction.

Richardson failed to demonstrate deficient performance. Trial

counsel did object to the testimony. On appeal, we recognized that the

testimony was not permissible victim impact evidence and therefore the

district court abused its discretion in allowing the testimony, but we

concluded that the error did not have a substantial or injurious effect on the

verdict given the brevity of the improper testimony. Richardson, Docket

No. 54951, Order of Affirmance at 13. Considering the trial court's ruling

on the objection, we cannot fault counsel for not then requesting a curative

instruction. Beyond that circumstance, counsel's failure to seek a curative

instruction also was not objectively un1·easonable as an instruction could

have drawn unnecessary attention to otherwise brief testimony and

garnered more sympathy for the witness. See Musladin v. Lamarque, 555

F.3d 830, 845-46 (9th Cir. 2009) (holding that the decision not to request a

limiting instruction on damaging evidence may be a strategic tactic to avoid

drawing further attention to damaging testimony). Richardson also cannot

demonstrate a reasonable probability of a different outcome given the

brevity of the improper testimony and the other compelling evidence

presented at the penalty hearing. See Doyle v. State, 116 Nev. 148, 160,995

P.2d 465, 472 (2000) (recognizing that postconviction petitioner must also

show that the result of the trial would probably have been different had

counsel successfully challenged inadmissible evidence).

Therefore,

Richardson failed to demonstrate that the district court erred in denying

this claim.

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Failure to challenge juror misconduct

Richardson argues that trial counsel should have addressed

Juror misconduct by requesting dism issal of the juror and a curative

instruction.

We conclude that Richardson did not demonstrate deficient

performance or prejudice. During penalty phase testimony, a juror was

apparently moved with sympathy toward a prior victim based entirely on

that victim's penalty hearing testimony. The district court questioned the

juror and he averred that he could be fair and impartial. Given this record,

Richardson did not demonstrate that trial counsel failed to lodge a

meritorious objection to the alleged misconduct. See Meyer v. State, 119

Nev. 554, 564, 80 P.3d 447, 455 (2003) ("Prejudice is shown whenever there

is a reasonable probability or likelihood that the juror misconduct affected

the verdict."); Hernandez v. State, 118 Nev. 513, 522, 50 P.3d 1100, 1107

(2002) (recognizing that jury's expression of sympathy toward victim does

not necessarily prejudice defendant).

He further does not state what

instruction counsel should have requested that would have had the desired

effect of both alleviating the juror's reaction and not calling more attention

to it. Therefore, the district court did not err in denying this claim .

Cumulative error

Richardson argues that the district court e1·red in denying his

claim that the cumulative effect of counsel's errors warrants relief.

Assuming that multiple deficiencies in counsel's performance can be

considered cumulatively for pu1·poses of the prejudice prong of Strickland

when the individual deficiencies did not result in prejudice, see McConnell

v. State, 125 Nev. 243, 259 n.17, 212 P.3d 307, 318 n.17 (2009) (assuming,

without deciding, that multiple deficiencies may be cumulated for

Strichland's prejudice prong), Richardson failed to demonstrate any

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instances of deficient performance. Thus, there is nothing to cumulate.

Accordingly, the district court did not err in denying this claim .

Postconviction expert assistance

Richardson contends that

the district court abused its

discretion in denying his request for funding to retain a crime scene

reconstruction expert, a photograph expert to enhance the crime scene

photograph depicting the hat, and a forensic tool mark expert to evaluate

the victims' wounds in comparison to the purported murder weapon. We

discern no abuse of discretion. State u. Second Judicial Dist. Court, 85 Nev.

241, 245, 453 P.2d 421, 423-24 (1969) (reviewing decisions regarding

funding defense experts for abuse of discretion).

Richardson offers no argument in support of his contention that

the district court should have provided funding for a crime scene

reconstruction expert, so we do not address that argument. See Maresca,

103 Nev. at 673, 748 P.2d at 6 (recognizing that appellant must provide

relevant authority and cogent argument).

Although he offers brief

arguments asserting the district court erred in denying his request for

funding to hire a photographic expert and a forensic tool mark expert, those

arguments lack merit. While postconviction counsel represented that he

consulted with a photographic expert, he did not identify the expert or

provide any further detail on what technology the expert would have used

to clarify or enhance the photograph. Based on those omissions, the district

court did not abuse its discretion in declining to authorize funds to hire that

expert. See Hargrove, 100 Nev. at 502, 686 P .2d at 225. With respect to the

tool mark expert, we conclude that the district court did not abuse its

discretion. Both the medical examiner and an expert consulted by trial

counsel concurred that the hammer could have caused the victims' injuries

and the1·efore Richardson cannot demonstrate ineffect ive assistance based

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on counsel's failure to search for another expert who might provide a

different opinion. See Sonner v. State, 112 Nev. 1328, 1340, 930 P.2d 707,

715 (1996) ("[T]he law does not require an unlimited expenditure of

resources in an effort to find professional support for [a petitioner's]

theory."); Dees v. Caspiri, 904 F.2d 452, 454 (8th Cir. 1990) (observing that

counsel does not have a duty to "continue looking for experts just because

the one he has consulted gave an unfavorable opinion"). Accordingly, the

district court did not abuse its discretion in denying postconviction fees to

retain another expert to support that claim.

Having concluded that Richardson's contentions do not warrant

relief, we

ORDER the judgment of the district court AFFIRMED.

'J..t,.,, .A..~

C.J.

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M~GJ)

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Herndon

Hon. Michelle Leavitt, District Judge

The Law Office of Kristina Wildeveld & Associates

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk

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