PAUL MATHEW REVELL v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Paul Mathew Revell appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on December 4, 2017. Second Judicial District Court, Washoe County; Egan K. Walker, Judge.

Revell argues the district court erred by denying his claims that trial counsel were ineffective. 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, and 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). 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, Revell claimed trial counsel were ineffective for failing to properly question the defense experts and present a clear explanation of the defense theory to the jury. The district court found trial counsel adequately examined the witnesses and were able to present a clear theory of defense. This finding is supported by substantial evidence. Therefore, Revell failed to demonstrate counsels’ performance was deficient, and we conclude the district court did not err by denying this claim.

Second, Revell claimed trial counsel were ineffective fox’ failing to call additional pediatric experts at trial to discuss the significance of the victim's early symptoms and to discuss what a pediatrician would be looking for in an evaluation when the victim was brought to the emergency room prior to the instant incident. At the evidentiary hearing, trial counsel both testified they consulted numerous experts in this case, including pediatric experts, and developed their trial strategy based on those consultations. Counsel determined that the experts called at trial were sufficient to present their trial strategy to the jury and that further experts were not necessary. The decision of which witnesses to call at trial is a strategic one and is “virtually unchallengeable absent extraordinary circumstances.” Lara v. State, 120 Nev. 177, 180, 187 P.3d 528, 530 (2004) (internal quotation marks omitted). Revell has not demonstrated extraordinary circumstances, especially given counsels’ testimonies regarding their research and consultations with numerous experts. Therefore, we conclude Revell failed to demonstrate counsels’ performance was deficient, and the district court did not err by denying this claim.

Third, Revell claimed trial counsel were ineffective for having a biomechanical expert testify at trial regarding the victim's fall just prior to the victim exhibiting symptoms. Revell argued this testimony undermined his version of events that the victim fell off the bed. The district court found the biomechanical engineer testified at trial that the fall could not have caused the injuries to the victim. The biomechanical engineer further testified that a person was not capable of exerting such force on a baby to cause the injuries to the victim. The defense at trial was that the victim died from an underlying medical issue, not trauma. Thus, the district court found the biomechanical engineer's testimony did not undermine Revell's version of events and supported Revell's theory of defense that the injuries to the victim were caused by an underlying medical issue rather than by trauma. These findings are supported by substantial evidence, and we conclude Revell failed to demonstrate counsels’ performance was deficient. Therefore, we conclude the district court did not err by denying this claim.

Next, Revell argues the district court erred by denying his claim that appellate counsel was ineffective. Specifically, Revell claimed counsel should have argued the State failed to present sufficient evidence that Revell committed first-degree murder. To demonstrate ineffective assistance of appellate counsel, a petitioner must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that the omitted issue would have a reasonable probability of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). Appellate counsel is not required to raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, appellate counsel will be most effective when every conceivable issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989).

At the evidentiary hearing, appellate counsel testified he considered raising a sufficiency argument but concluded the claim did not have a reasonable probability of success on appeal given the standard of review. Appellate counsel's decision to forgo this claim was thus a tactical one, Lara, 120 Nev. at 180, 187 P.3d at 530, and counsel is not ineffective for choosing not to raise every possible issue on appeal. Thus, Revell failed to demonstrate that appellate counsel's performance was deficient.

Further, Revell failed to demonstrate this issue had a reasonable probability of success on appeal. Revell contends that the evidence presented at trial was insufficient to support the jury's finding of guilt because he presented experts to refute the State's evidence. When reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979): accord Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008). “[I]t is the function of the jury, not the appellate court, to weigh the evidence and pass upon the credibility of the witness.” Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439 (1975). And circumstantial evidence is enough to support a conviction. Washington v. State, 132 Nev. 655, 661, 376 P.3d 802, 807 (2016).

Here the State presented expert witnesses who testified the victim had acute, subacute, and chronic subdural hematomas in the brain and retinal hemorrhaging. The experts opined that the cause of death was nonaccidental head trauma. Revell was the last person with the victim prior to the victim showing symptoms of the injuries. From this evidence, the jury could have reasonably inferred that Revell committed first-degree murder. See NRS 200.030(1)(b). Thus, Revell failed to demonstrate he was prejudiced by appellate counsel's decision not to pursue this claim on appeal, and we conclude the district court did not err by denying this claim.

Finally, Revell argues the district court abused its discretion by denying his motion for fees to retain an expert for the postconviction proceedings. In his motion, Revell requested fees to retain an expert to review the records in this case to determine whether an alternate theory of defense would have been viable and to determine whether further review would be required in this matter by a physician. Here, counsel was appointed to represent Revell in the postconviction proceedings. NRS 7.135(1) provides:

An attorney who is selected pursuant to NRS 7.115 to represent a defendant is entitled, in addition to the fee provided by NRS 7.125 for the attorney's services, to be reimbursed for expenses reasonably incurred by the attorney in representing the defendant and may employ such investigative, expert or other services as may be necessary for an adequate defense.

See also State v. Second. Jud. Dist. Ct., 85 Nev. 241, 245, 453 P.2d 421, 423-24 (1969) (holding “an indigent defendant's constitutional rights require reimbursement to his counsel for out-of-pocket expenses incidental to his defense”). We review a district court's decision to grant or deny fees for an investigator for an abuse of discretion. Id.

We conclude the district court did not abuse its discretion. Trial counsel presented numerous experts at trial and counsels’ testimonies at the evidentiary hearing demonstrated they spoke with numerous other experts and made strategic choices to focus on the chosen defense theory at trial. The presentation of evidence at trial and the extensive research and consultation done by trial counsel in this case demonstrated that counsels’ performance did not fall below an objective standard of reasonableness. Thus, Revell fails to demonstrate the expert was necessary to prosecute the postconviction petition for a writ of habeas corpus. Therefore, we conclude Revell is not entitled to relief on this claim. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.