DEON DONTAE SMALLEY v. BRIAN WILLIAMS WARDEN AND THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Deon Dontae Smalley appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on March 29, 2019. Eighth Judicial District Court, Clark County; Erika D. Ballou, Judge.

Smalley first argues the district court erred by denying his claims of ineffective assistance of trial and appellate 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). 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). 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).

In his brief on appeal, Smalley first argues the district court erred by denying his claim that trial and appellate counsel were ineffective regarding an incident during trial where the jury sent a note to the trial court.¹ Smalley contends that the trial court committed structural error ² when it responded to the note in counsel's absence and that the trial court should have (1) consulted the parties before responding to the jury, and (2) supplemented the jury instructions or otherwise adequately answered the question instead of reaffirming the existing instructions.

Generally, a district court may refuse to answer a jury question that is adequately covered by the jury instructions so long as those instructions are correct. See Tellis v. State, 84 Nev. 587, 591, 445 P.2d 938, 941 (1968). However, the Nevada Supreme Court created a narrow exception to this general rule where the jury's question demonstrates confusion or lack of understanding of a significant element of the applicable law. See Gonzalez v. State, 131 Nev. 991, 996-97, 366 P.3d 680, 683-84 (2015); see also Jeffries v. State, 133 Nev. 331, 337, 397 P.3d 21, 28 (2017). Where a district court responds to a jury's request “to be informed on any point of law arising in the cause,” the parties’ counsel must be present during the court's response or be first notified of the request. NRS 175.451; see also Varner v. State, 97 Nev. 486, 487, 634 P.2d 1205, 1206 (1981). However, any error resulting in the district court's failure to notify counsel or respond to the jury in counsels’ presence is harmless where the district court provides the correct answer to the jury's request. Varner, 97 Nev. at 487-88, 634 P.2d at 1206.

Our review of the record reveals that the jury's question did not fall into the narrow exception articulated in Gonzalez. In Gonzalez, the jury asked if “a person can only be guilty of 2nd degree murder or 1st. Can it be both?” 131 Nev. at 995, 366 P.3d at 683. The district court responded, “You must reach a decision on each count separate and apart from each other count.” Id. The Nevada Supreme Court concluded that, because the jury's question “did not suggest confusion or the lack of understanding of a significant element of first- or second-degree murder, the district court did not abuse its discretion when it refused to answer that question.” Id. at 997, 366 P.3d at 684.

Here, the jury's question did not suggest confusion or the lack of understanding regarding an element of the crimes charged. Instead, the jury was asking whether a finding of guilt on attempted murder with the use of a deadly weapon based on coconspirator vicarious liability and a finding of guilt on the other four counts automatically resulted in a finding that the other four counts were committed with a firearm. Thus, the trial court correctly responded that it was not required to supplement the instructions, which correctly instructed the jury on the pertinent law, and that “[e]ach charge and the evidence pertaining to it should be considered separately.” Further, Smalley fails to argue specific facts regarding how the trial court should have responded or what supplemental instruction it should have provided. Finally, the trial court's response was a correct statement of the law. Thus, any error in responding outside the presence of counsel was harmless. For these reasons, Smalley failed to demonstrate deficient performance or a reasonable probability of a different outcome at trial or on appeal but for counsel's inaction. Therefore, we conclude the district court did not err by denying this claim.

Smalley next argues on appeal that the district court erred by denying his claims that trial and appellate counsel were ineffective for failing to challenge several jury instructions, which he argues erroneously instructed the jury on coconspirator vicarious liability. Smalley first contends that coconspirator vicarious liability does not apply to attempt crimes because they require specific intent and consequently that the jury was instructed on nonexistent “conspiracy to attempt” crimes. Smalley also contends counsel should have challenged the district court's failure to instruct the jury on the elements of conspiracy.

The State did not charge Smalley with the crime of conspiracy, see NRS 199.480, but rather alleged three alternative theories of criminal liability with regard to the challenged attempt counts ³ : (1) that Smalley and/or coconspirators directly committed the offenses, (2) that Smalley and/or unknown coconspirators acted pursuant to a conspiracy with each other, and (3) that Smalley and/or unknown coconspirators aided or abetted each other.⁴

“[J]ury instructions taken as a whole may be sufficient to cure an ambiguity in a challenged instruction.” Tanksley v. State, 113 Nev. 844, 849, 944 P.2d 240, 243 (1997). Conspiracy and aiding and abetting are valid theories of liability for specific intent crimes as long as the defendant also has the requisite intent. See Bolden v. State, 121 Nev. 908, 922, 124 P.3d 191, 200-01 (2005), receded from on other grounds by Cortinas v. State, 124 Nev. 1013, 1026-27, 195 P.3d 315, 324 (2008); Sharma v. State, 118 Nev. 648, 655, 56 P.3d 868, 872 (2002). “Jury instructions relating to intent must be read together, not disconnectedly, and a single instruction to the jury may not be judged in isolation, but must be viewed in context of the overall charge.” Greene v. State, 113 Nev. 157, 167-68, 931 P.2d 54, 61 (1997), receded from on other grounds by Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000).

Here, the jury was instructed on specific intent, the State's burden of proof, and the elements of the crimes. Further, the jury was instructed that attempted murder, attempted home invasion, and attempted burglary were specific intent crimes and that a “defendant cannot be liable under a conspiracy theory of liability for acts committed by a co-conspirator unless the defendant also had the intent necessary for the particular crime.” The jury instructions properly explained that a defendant cannot be liable for a coconspirator's acts unless the defendant also had the requisite intent. Thus, when considered as a whole, the jury instructions properly instructed the jury regarding specific intent crimes and “conspiracy” theory of liability. In light of these instructions, Smalley failed to demonstrate deficient performance or a reasonable probability of a different outcome at trial or on appeal based on counsel's failure to challenge the jury instructions. Therefore, we conclude the district court did not err by denying this claim.

Smalley also contends trial and appellate counsel were ineffective for failing to challenge jury instruction no. 19 because it instructed the jury that defendants may be liable under the natural and probable consequences doctrine, despite the fact that the attempt counts are specific intent crimes. In Bolden, the Nevada Supreme Court held that “a defendant may not be held criminally liable for a specific intent crime committed by a co-conspirator simply because that crime was a natural and probable consequence of the object of the conspiracy,” and thus, the State must prove the defendant possessed the requisite intent to commit the crime. 121 Nev. at 922, 124 P.3d at 200-01. Bolden did not, however, disapprove of the use of the jury instruction insofar as it applied to general intent crimes. See id. at 92 2-23, 124 P.3d at 201.

Smalley was also charged with general intent crimes, for which the challenged jury instruction would have been proper. And, as is discussed above, the jury was instructed that a “defendant cannot be liable under a conspiracy theory of liability for acts committed by a co-conspirator unless the defendant also had the intent necessary for the particular crime.” Therefore, when considered as a whole, the jury was correctly instructed that, for specific intent crimes, Smalley had to have the specific intent to commit the crime to be held criminally liable as a coconspirator. Smalley thus failed to demonstrate deficient performance or a reasonable probability of a different outcome at trial or on appeal based on counsel's failure to challenge the jury instruction on the natural and probable consequences doctrine. Therefore, we conclude the district court did not err by denying this claim.

Smalley next argues on appeal that the district court erred by denying his claims that the trial court erred in its handling of the jury note referenced above and in instructing the jury on coconspirator liability. These claims could have been raised on direct appeal, and Smalley does not argue good cause for the failure to do so. See NRS 34.810(1)(b); NRS 34.810(4). Therefore, he is not entitled to relief.

Finally, Smalley argues trial counsel was ineffective for failing to file a motion to sever his trial from his codefendant's trial. Smalley did not raise this claim below, and we decline to consider it on appeal in the first instance. See State v. Wade, 105 Nev. 206, 209 n.3, 772 P.2d 1291, 1293 n.3 (1989). Accordingly, we

ORDER the judgment of the district court AFFIRMED.⁵

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   During deliberations, the jury sent a note to the trial court stating: “If [Smalley] is guilty of attempted murder with a gun because of conspiracy and guilty of the other four, are the other four guilty with a gun?” The trial court responded, “The court is not at liberty to supplement instructions. Each charge and the evidence pertaining to it should be considered separately.”

2.   Smalley appears to argue the alleged structural error committed by the trial court, paired with trial counsel's inaction, completely denied him his right to counsel during a critical stage of the proceedings—jury deliberations. To the extent Smalley contends these circumstances warrant automatic reversal without a showing of prejudice under Strickland, we disagree. First, the Nevada Supreme Court has determined that harmless error review (not automatic reversal) applies when a district court responds to a jury note “without notifying the parties or counsel or seeking input on the response.” Manning v. State, 131 Nev. 206, 212, 348 P.3d 1015, 1019 (2015). Further, while structural errors generally warrant automatic reversal when the issue was preserved at trial and raised on direct appeal, a petitioner raising an ineffective-assistance-of-counsel claim based on trial counsel's failure to preserve a structural error must still demonstrate prejudice. Weaver v. Massachusetts, 582 U.S. 286, 299, 300-01 (2017) (observing a defendant who presents an unpreserved structural error within an ineffective-assistance-of-counsel claim must still show deficiency and prejudice and analyzing whether prejudice was established by a showing of either a reasonable probability of a different outcome or fundamental unfairness).

3.   Smalley was charged with attempted murder with the use of a deadly weapon, attempted invasion of the home with the use of a deadly weapon, and attempted burglary while in possession of a firearm.

4.   While Smalley acknowledges these three theories of liability, he argues the State focused its closing argument on the conspiracy theory.

5.   Insofar as Smalley raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.