Glover v. Gittere

502 P.3d 1092 (Table)

Shawn Lynn GLOVER, Jr., Appellant,

v.William A. GITTERE, Warden; Charles Daniels, Director, NDOC; and the State of Nevada, Respondents.

No. 82700-COA

Court of Appeals of Nevada.

FILED FEBRUARY 03, 2022

Gaffney Law

Attorney General/Carson City

Clark County District Attorney

ORDER OF AFFIRMANCE

Shawn Lynn Clover, Jr., appeals from an order of the district court denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michael Villani, Judge.

Glover argues the district court erred by denying his September 14, 2020, petition and later-filed supplement without first conducting an evidentiary hearing. In his petition, Glover claimed his trial counsel was 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. To warrant an evidentiary hearing, 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. Hargrove v. State , 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

First, Glover argued that his trial counsel was ineffective for failing to object when testimonial hearsay was presented at trial resulting in a violation of the Confrontation Clause. Glover asserted that a medical examiner testified concerning the victim's cause of death but improperly utilized during her testimony the autopsy reports and photographs that were created by another examiner. Glover contended that the information and conclusions contained within the autopsy reports were improperly presented to the jury in violation of his right to confrontation.

The Nevada Supreme Court has previously held that expert testimony regarding the content of a testimonial statement in a written report may function as the equivalent of a testimonial statement, see Vega v. State , 126 Nev. 332, 340, 236 P.3d 632, 638 (2010), and that another analyst's testimony as to the testimonial statements of a nontestifying analyst violates the Confrontation Clause, see Polk v. State, 126 Nev. 180, 183-84, 233 P.3d 357, 359 (2010). However, an expert witness may testify concerning an independent opinion reached as a result of reliance upon reports generated by others without violating the Confrontation Clause. Vega, 126 Nev. at 340, 236 P.3d at 638 ; see also Flowers v. State, 136 Nev. 1, 9, 456 P.3d 1037, 1046 (2020) ("To the extent [the expert witness] offered his independent opinions and only conveyed to the jury that he generally relied on the autopsy photographs and reports in reaching his opinions, he did not communicate hearsay to the jury.").

The medical examiner that conducted the autopsy of the victim was not available to testify at trial. However, a second medical examiner testified that she reviewed the autopsy reports and photographs that were created by the first examiner. The second medical examiner testified that she utilized the reports and photographs to reach her own independent conclusions as to the cause of the victim's death. The second medical examiner ultimately testified that she concluded that the victim died due to a gunshot wound to the head and the manner of death was homicide. The second medical examiner did not testify as to the conclusions reached by the first medical examiner.

Because the second medical examiner testified that she reached her own independent conclusions, her testimony did not...