Case issues

This is the latter part (2002) of:

APPEAL FROM ORDER DENYING DEFENDANT’S PETITION FOR WRIT OF HABEAS CORPUS (POST-CONVICTION) EIGHTH JUDICIAL DISTRICT COURT

THE HONORABLE JUDGE HARDESTY, PRESIDING

ISSUES PRESENTED FOR REVIEW

I. Mr. Funches was denied his Sixth Amendment right to confront witnesses. in violation of the United States constitution. as well as his Fourteenth Amendment right to due process of law. when denied his constitutional right to cross-examine witnesses.

A. BRUTON

B. The District Court´s ruling regarding the preliminary hearing transcript.

C. Two out of court statements of Mr. Shafer.

D. Ineffective assistance of counsel regarding the Bruton issue.

II. Mr. Funches’s convictions must be reversed based upon the failure of appellate counsel and trial counsel to help Mr. Funches perfect the issue of severance on direct appeal.

III. Mr. Funches’s convictions must be reversed based upon there being no corroboration of the accomplice.

IV. Mr. Funches’s convictions should be reversed based upon the use of perjured testimony.

V. Mr. Funches was denied the reasonable effective assistance of counsel: prior to trial, during trial, and after trial. In violation of Mr. Funches’s Sixth Amendment right to counsel and Fifth and Fourteenth Amendment rights to due process.

A. Failure to investigate facts surrounding the eyewitness’ statement that two white men were the killers.

B. VIDEO TAPE

VI. Mr. Funches’s convictions must be reversed based upon a cumulative effect of the errors at trial.

I. MR. FUNCHES WAS DENIED HlS SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES IN VIOLATION OF THE UNITED STATES CONSTITUTION AS WELL AS HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WHEN DENIED HIS CONSTITUTIONAL RIGHT TO CROSS-EXAMINE WITNESSES

A. BRUTON

In the present case, as required by Bruton v. United States, U.S. 391123; 88 S.Ct. 1620; 20 L.Ed. 476 (1968), the co-defendant Shafer did not waive his Fifth Amendment right, therefore, Mr. Funches had no way of confronting and cross-examining the witnesses against him. Mr. Funches was virtually left with no defense to the statements and accusations of Shafer’s preliminary hearing testimony.

Moreover, what makes this even more devastating was the fact that prior to the preliminary hearing, co-defendant Shafer was not charged with murder. Upon cross-examination at the preliminary hearing, Shafer denied any involvement in the murder, asserting complete ignorance as to Funches’ s possession of a gun that night and the potential occurrence of any crime.

Subsequently, the detective reinterrogated Shafer, a month before Funches’s scheduled trial date. At that time, Shafer admitted that he knew Funches had a gun with him that night and that the driver gave him money at Funches’ s instance, but he denied knowing that Funches would shoot the cab driver. It was then that Shafer was charged with robbery and first degree murder on a felony murder theory.

The jury never heard this information under the process of cross-examination, which gravely affected the defendants ability to effectively present a defense to the accusations and the case of the prosecution. Consequently, the jury acquitted Shafer, but convicted Funches of first degree murder and being an ex-felon in possession of a firearm.

(p 17)

Here, it appears that tainted testimony from the preliminary hearing, plus the silence of co-defendant Shafer during the trial was enough to convince the jury that Shafer was not guilty.

He clearly had placed the blame on Funches and was blanketed with the constitutional protection of the Fifth Amendment right to remain silent. A clear violation of the Bruton Rule.

But because of Shafer’s use of the right to remain silent and not testify, Mr. Funches was clearly unable to either explain away the charges, or in the alternative, defend again the accusation of his co-defendant.

Furthermore, without the right to confront and cross-examine co-defendant Shafer, the Jury concluded that:

1) Mr. Funches committed a crime with 2) Mr. Shafer being present; but believed that Mr. Shafer did not commit the crime with Mr. Funches.

In Bruton v. U.S., 391 U.S. 12488 S. Ct. 1620 (1968), the United States Supreme Court stated,

A defendant may be prejudiced by the admissions in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice can not be dispelled by crossexamination if the co-defendant does not take the stand.” Id. At 1625-1626.

Mr. Funches argues that such was the case herein, “Where the powerfully incriminating extrajudicial statements of a co-defendant, who stands side by side the defendant, was deliberately spread before the jury in a joint trial. Not only are the incrimination devastation to the defendant, but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift the blame onto others. The unreliability of such evidence in intolerable compounded when the alleged accomplice, as here, does not testify and can not be tested by cross-examinations.

(p 18)

Plainly, the introduction of Shafer’ s preliminàry hearing testimony added substantial, perhaps even critical weight to the State’s case in a form not subject to cross-examination, since Shafer did not take the stand.

Thus, Mr. Funches, under Bruton Rule, was denied his constitutional right of confrontation, where it was fundamentally stated,

” .. a major reason underlying the constitutional confrontation rule is to give a defendant charged with a crime an opportunity to cross-examine the witnesses against him.” Id., Bruton v. U. S. at 1623.

Mr. Funches made a timely continuing objection to all the issues in violation of Bruton v. United States. This issue was not raised on appeal by appellate counsel, Mr. Petty. According to Mr. Petty, the issue of Bruton v. United States was not raised on appeal for three apparent reasons in which he testified to at the evidentiary hearing.

Mr. Petty at first testified that he could not explain or remember why he had not raised the Bruton issue. Mr. Petty also explained that the Bruton issue, although a Constitutional violation may have been considered by this Court to be cumulative.

Lastly, Mr. Petty also explained, the reason he did not raise the Bruton issue was because he was absolutely sure that he had won Mr. Funches’ appeal on the issue that preliminary hearing transcript could not be considered admissible based upon the two Nevada Supreme Court cases and the statute he cited.

Apparently, the prosecutor agreed that he believed that Mr. Petty would overturn Mr. Funches´ case on that issue. In the Courts order denying Mr. Funches’s writ, the court noted that Mr. Petty’s performance was reasonable pursuant to the Strickland standard.

The court noted that there were three separate allegations of Bruton violations within Mr. Funches trial.

Specifically, Mr. Funches indicated that two separate out of court statements made by Mr. Shafer were introduced into the trial. These out of court statements clearly incriminated Mr. Funches. There was no cross-examination permitted of Mr. Shafer regarding (p 19) these statements. Additionally, it should be noted that Mr. Shafer’s out of court statement after the preliminary hearing transcript wherein he admitted he had lied, also included his attempts to incriminate Mr. Funches. Yet, exculpitate himself.

These were two issues of Bruton violation that were not raised on direct appeal. (note 2: These issues were all preserved for direct appeal by the continuing objection as to all Bruton issues by trial counsel, Mr. Hylin.)

The third Bruton violation referred to is the preliminary hearing transcript that was introduced in Mr. Funches joint trial with Mr. Shafer.

B. THE DISTRICT COURTS RULING REGARDING THE PRELIMINARY HEARING TRANSCRIPT.

The court determined that Mr. Petty’s failure to raise the Bruton issue regarding the preliminary hearing transcript was not unreasonable under prevailing professional norms.

(7 order). In making such a determination, the court cites three cases in the order. The court stated in pertinent part,

“Petty’s decision to omit, or winnow out, the Bruton claim from the appeal was a considered strategy, settled on after careful review of the legal standards and the record in Funches’s case, and was reasonable under prevailing professional norms. 4.”

The footnote referred to by the court explains, that “Mr. Petty was well aware of the cases decided by the United States Supreme Court and locally they had rejected that assertion.”

The court cited Ohio v. Roberts, 448 U.S. 56; 100 S. Ct. 2531; 65L.E.2d 597 (1988), Power v. State, 102 Nev. 381, 724, P.2d 200 (1986).

Mr. Funches would dispute that Mr. Petty [n]ever testified that he was aware of these cases during the evidentiary hearing. However, assuming arguendo that Mr. Petty was aware of these cases, the cases do not seem to be on point. A review of these cases indicate that the Court should not have relied upon them for the purposes of determining that a preliminary hearing transcript can be used pursuant to a Bruton violation.

In Ohio v. Roberts, the United States Supreme Court considered the issue of whether a witnesses preliminary hearing transcript could be used at trial when the witness was unavailable. Id.(p 20)

A review of this case provides absolutely no indication regarding the admissibility of a preliminary hearing transcript in violation of Bruton. In Ohio v. Roberts the issue was similar to that raised by Mr. Funches on direct appeal. The issue on Mr. Funches’s direct appeal and the issue in Ohio v. Roberts, is the admissibility of a preliminary hearing transcript when a witness is unavailable. The case does not involve a Bruton question in any sense.

However, it is interesting to note that the United States Supreme Court provided that, “The focus of the court’s concern has been to ensure that there are indicia of reliability which have been widely viewed as termative as whether a statement may be placed before a jury so there is no confrontation of the declarant.” Ohio v. Roberts, Id. citing Dutton v. Evans, 400 U.S. 74 (1970). The court explained the purpose of this indicia of reliability is to afford the trier of fact a satisfactory basis for evaluating the proof of the statements.

In the instant case, it is c1ear that Mr. Shafer’s preliminary hearing transcript is not reliab le. In fact, this fact appears to be uncontradicted and approved already by this Court. Areview of the facts enunciated by this Court in Mr. Funches’s direct appeal proves this point.

The facts in the Opinion by this Court indicates that Mr. Shafer testified at the preliminary hearing that Mr. Funches was guilty of shooting the cab driver and Mr. Shafer was unaware that this was going to occur.

This Court then states, that Mr. Shafer was reinterviewed and proceeded to inform authorities that he was aware that a robbery was going to occur. He knew that Mr. Funches had possession of a gun and he was the one who received the money from that cab driver during the robbery. Clearly, a review of this Court’s determination of the facts of this case demonstrates that Mr. Shafer had obviously lied during the preliminary hearing regarding the facts he stated to the authorities after the preliminary hearing.3 (Note 3: 3 Therefore, it is c1ear that was no indicia of reliability in Mr. Shafer’s preliminary hearing transcript.)

The undersigned is aware that the issue before this (p. 21) Court is not whether the preliminary hearing transcript could be used based upon the issue raised on his direct appeal, but Mr. Funches raises the issue under a Constitutional argument of a violation of Bruton v. United States.

The analysis of the Ohio v. Roberts case, is to demonstrate that when the district court denied Mr. Funches’s Writ relying upon Ohio v. Roberts, it had no bearing upon a Bruton issue whatsoever. It is Mr. Funches’s contention that the district court’s reliance is misplaced when citing to this case.

The court also cited the Nevada Supreme Court case of Power v. State, supra. In Power v. State, this Court decided the issue of whether a preliminary hearing transcript was admissible against two defendants when the accusing witness was unavailable. Id. at 381. A review of this case demonstrates that there is no consideration by this Court regarding the Bruton issue. This Court simply determined whether the unavailability of an accusing witness should be found to be admissible at trial.

Mr. Funches is at a loss as to why the district court cited these two cases solely for the proposition that Mr. Petty was not ineffective when he failed to raise the Bruton issue. The court’s statements that Mr. Petty was well aware of these two cases is curious. The court’s determination and reliance upon these two cases is clearly misplaced.

The court also cited a third case for the proposition that a Bruton violation will not necessarily result in the reversal if it can not withstand a harmless error analysis (order 7). For this proposition, the district court cited to Harrington v. Califomia, 395 U.S. 250; 89 S.Ct. 1726; 23 L. E. 2d ;284 (1969). A review of Harrington v. Califomia, demonstrates that a Bruton violation is subject to a harmless error analysis. In Harrington, the United States Supreme Court held that, hearing transcript. (p. 22)

Nevertheless, the error was harmless, because the case against the defendant was so overwhelming that the constitutional violation was harmless beyond a reasonable doubt. Other evidence, including the defendant’s own statement placed him at the scene with the gun. Therefore, the court declines to input reversible weight to the two confessions. Id.

Therefore, the United States Supreme Court has provided that a Bruton violation is subject to the harmless error analysis. However, as the Court noted in Harrington, there was overwhelming evidence against the defendant’s including a confession placing him at the scene of the crime with a firearm. In the instant case, not only was the evidence marginal, it appears that the entire case against Mr. Funches was the two out of court statements and the preliminary hearing transcript used against him.

During the evidentiary hearing, evidence was presented that the only real corroboration of Mr. Shafer’s testimony was that Mr. Funches had a firearm in his possession that was consistent with a shell casing found in the cab. (ROA, pp. 42 prelim trans). It is important to note, that Mr. Shafer had absolute access to this weapon on the night of the murder. In fact, the weapon was stored in Mr. Shafer’s house, where Mr. Funches also stayed.

The purpose of this fact is to demonstrate that Mr. Shafer the man who couldn’t pass a polygraph test regarding whether he shot the cab driver had absolute access to the gun. Relying upon a harmless error analysis, there was no overwhelming evidence in the instant case. Therefore, the United States Supreme Court case of Harrington v. California is of little consequence.

Pursuant to the analysis conducted by the district court regarding the preliminary hearing transcript and the Bruton violation demonstrates that the district court’s reliance on the case law it cited is significantly insufficient. The court did not cite one case permitting a prior transcript being introduced against the defendant even though there was a violation of Bruton.

Mr. Funches’ reliance [on] the Bruton case to establish that his convictions must be reversed based on the admission of the preliminary hearing transcript is sound. The district court’s (p. 23) conclusion that it was not a Bruton violation is based upon irrelevant and misplaced case law.

Mr. Petty stated that he did not raise the Bruton issue because he could not recall the why, it was cumulative, and he thought he had a “dead bang winner.” Surely, it is not reasonable appellate practice to fail to raise Constitutional issues ( i.e. Bruton). To fail to raise such an issue because you believe you are going to win on another issue is unacceptable. The issue as enunciated herein demonstrates that Mr. Funches received a trial in violation of a well accepted United Supreme Court case. The failure of appellate counsel to raise this issue is absolutely ineffective. There was no overwhelming evidence in the instant case. Therefore, based upon ineffective assistance of counsel and a blatant violation of Bruton v. United States, Mr. Funches’ conviction must be reversed.

C. TWO OUT OF COURT STATEMENTS OF MR. SHAFER.

At trial, Mr. Funches was tried with his co-defendant Mr. Shafer. During the trial, Mr. Shafer’s two out of court statements were used against Mr. Funches. Neither of these out of court statements involved any type of cross-examination of Mr. Shafer.

In Mr. Shafer’ s out of court statements, he implicated Mr. Funches and at the same time attempted to exculpate himself. In the district court’s Order Denying the Writ of Habeas Corpus, the court held that there was no failure of Mr. Funches’ of appellate attorney when he failed to raise a Bruton claim in the direct appeal. (order 7-8). In this instance the court cited no case law for this proposition. The court found that there was no reasonable probability that the Nevada Supreme Court would have found anything other than harmless error. (order pp.8).

In Bruton v. United States, 391 U. S. 123; 88 S.Ct. 620; 20 L.E.2d 476 (1968), the United States Supreme Court reversed the conviction of the Petitioner based on the trial judge admitting evidence of the non testifying co-defendant. Id. In Bruton, the United States Supreme Court held that, (p. 24) The court held that despite the limiting instruction, the introduction of the accomplices out of court confession at Petitioner’s trial violated Petitioner’s right protected by the United States Constitution Amendment Six, to cross-examine witnesses.

In the instant case, Mr. Funches falls firmly within a Bruton analysis. Mr. Shafer made two out of court statements specifically incriminating Mr. Funches. In fact, Mr. Shafer actually made an out of court statement, after he had testified at the preliminary hearing. In the subsequent out of court statement, Mr. Shafer admitted that he had provided information that was contrary to his sworn testimony. Mr. Funches attorney was never given an opportunity to cross-examine Mr. Shafer regarding his perjurous statements at the preliminary hearing.

Thereafter, the jury heard testimony that Mr. Shafer had implicated Mr. Funches and at the same time Mr. Shafer had provided information claiming innocence. Mr. Shafer’s statements were successful in obtaining a conviction against Mr. Funches and an acquittal for himself.

The instant case is on point with the legal proposition provided in Bruton v. United States. Mr. Funches had a right to cross-examine his accuser. Mr. Funches’ s only significant accuser was Mr. Shafer. Mr. Shafer went to trial and invoked his right to remain silent pursuant to the United States Constitution. Therefore, Mr Funches was unable to cross-examine Mr. Shafer regarding the out of court statements. Interestingly enough, this Court previously issued a decision affirming Mr. Funches’ s conviction.

In the Court’s statement of facts from the decision, the Court notes that Mr. Shafer specifically changed his story after the preliminary hearing. Obviously, Mr. Shafer had provided false information to the tribunal and arguably committed a significant act of perjury. Yet, Mr. Funches was convicted upon these statements and never given an opportunity to crossexamination regarding his difficulty with telling the truth. If Mr. Shafer had testified the court should be aware that the cross-examination of Mr. Shafer should have been excruciating for Mr. Shafer.

(P. 25)

Clearly, Mr. Shafer had provided false information and the necessary cross-examination in front of the jury would have placed serious doubt to the credibility of Mr. Shafer. The district court in Denying the Writ of Habeas Corpus, determined that there is no indication that this Court would have found that there is anything other than harmless error. Again, the Court cited to Harrington v. California, 395 U.S. 250, 254 (1964), for the proposition that a Bruton violation could be subject to a harmless error analysis. The district court was correct in its citation to Harrington v. California and the legal proposition it provides. However, as was previously noted a harmless error analysis must be conducted with an analysis on whether there was overwhelming evidence.

In the instant case, the only significant evidence against Mr. Funches were the two out of court statements and the preliminary hearing testimony of Mr. Shafer. In Harrington, the United States Supreme Court specifically noted that in that case the defendant had confessed.

Therefore, a reliance upon Harrington v. California, supra, is misplaced.

In essence, it appears that the State of Nevada has no particular argument to defend against the numerous Bruton violations that occurred. During the evidentiary hearing in support of the writ of habeas corpus, one of the attorneys actually testified that the trial judge stated that the Bruton issues was “a tempest in a teapot”. This was an error of Constitutional magnitude and not a “tempest in a teapot”. The United States Supreme Court has provided guidance to determine when a Bruton violation has occurred. Mr Funches case is a text book example of numerous Bruton violations. [emphasis added by webmaster]

The United States Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the confrontation clause:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall (p. 26) have been committed, which District shall have previously ascertained by law, and to be informed of the nature and cause of the accusations; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in favor, and to have the assistance of counsel for the defense. See, United States Constitution, Amendment Six.

In Cruz v. New York, 107 S.Ct. 1714 (1987), at 1717; the United States Supreme Court held that,

“[T]he confrontation clause of the Sixth Amendment guarantees the right of a criminal defendant to be confronted with the witnesses against him.”

The United States Supreme Court further stated,

“[w]e have held that guarantee, extended against the states by the Fourteenth Amendment, includes the right to cross-examine witnesses.” See: Pointer v. Texas, 380 U.S. 400,404,85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

In the instant case, it is Mr. Funches’ contention the he was denied his constitutional right to confront and cross-examine the witnesses against him. When the trial court allowed prior statements into the trial, known to have been tainted with perjury, where a co-defendant, Ed Shafer, at the preliminary hearing gave devastating testimony about the guilt of the defendant Funches. [emphasis added by webmaster]

Subsequently, during the trial, against the Bruton Rule, Infra., the district court judge failed to put the co-defendant Shafer on the stand to be cross-examined. See Cruz v. New York, supra:

Where two or more defendants are tried jointly, therefore, the pretrial confession of one of them that implicates the other is not admissible unless the confessing defendant waives his Fifth Amendment rights so as to permit cross-examination.” Id. at 1717 (Emphasis Added).

Based on Cruz, supra, it is Mr. Funches’ contention that Shafer should have been placed on the witness stand. That the defendant-Mr. Funches should have been give his constitutional right to confront co-defendant Shafer and cross-examine the co-defendant whose statements were read into the record before the jury. See, Ducksworth v. State, 942 P.2d 157 (1997); See also, Bruton v. United States, 88 S.Ct. 1620 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

(p 27)

As in Ducksworth, the District Court allowed a confession of a co-defendant to be introduced at trial.. In the instant case, the statements of the co-defendant were admitted into the trial, in violation of the Bruton Rule, where

1) Co-defendant did not waive his Fifth Amendment right against self incrimination;

2) Defendant Funches was not allowed to confront and crossexamine co-defendant Shafer.

See: Bruton v. United States, supra.

So, even though the District Court did not instruct the jury to weigh carefully the condefendant’s testimony, as was the case in Bruton, Cruz, Pointer, and Ducksworth, still, the Mr. Funches, like Bruton, Cruz, Pointer, and Ducksworth’s co-defendant Martin, was denied his constitutional right to confrontation and cross examination in violation of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment.

In Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.E.2d 117, (1999), the United States Supreme Court considered a Bruton issue similar to the instant case. In Lilly, the U.S. Supreme Court considered the issue of whether Mr. Lilly’s Sixth Amendment Right to confront the witnesses against him was violated by admitting into evidence at trial a non testifying accomplices’ entire confession that contained some statements against the accomplices penal interests and others that inculpated the accused. Id. at 120. In Lilly, three people were accused of several crimes including first degree murder. Id. One of the defendants implicated himself in some of the crimes and stated that Mr. Lilly had instigated the car jacking and that Mr. Lilly was the one who committed the murder. Lilly, 527 U.S. 116 at 125. Mr. Lilly was sentenced to death. Lilly, 527 U. S. 116, 122.

In Mr. Lilly’s trial, the commonwealth called Mark (the man who gave the incriminating statements) to testify in a severed trial against Mr. Lilly. Mark invoked his right to the Fifth Amendment privilege against self incrimination. The commonwealth therefore, introduced the evidence based upon the unavailability of Mark and the fact that the statement was made against (p 28) his penal interest. Id. at 121, 527 U. S. 116, 121. The Supreme Court of Virginia affirmed Mr.Lilly’s sentence of death.

The United States Supreme Court provided that, “[o]ur concern that this decision represented a significant departure from our confrontation clause juris prudence prompted us to grant Certiaori.” 527 U. S. 116, 123.

In Lilly, the United States Supreme Court provides and extensive history regarding the confrontation clause.

In Lilly, the U.S. Supreme Court provides many examples of previous cases to establish the development of the confrontation clause. Citing to Grey v. Maryland, 523 U. S. 185, 194-195-140 L.E.2d 294, 118 S.Ct. 1151 (1998), for the proposition that because the use of an accomplice’s confession creates a special, and vital, need for cross-examination, if a prosecutor desires to offer such evidence must comply with Bruton, hold separate trials, use separate jurys, or abandon the use of the confession. Id. at 200.

In Lilly, the United States Supreme court explained that,

“The third category includes cases, like the one before us today, in which the government seeks to introduce a confession by an accomplice which incriminates a criminal defendant.”

The practice of admitting statements in this category under an exception to the hearsay rule – – to the extent that such a practice exists in certain jurisdictions – – is, unlike the first category or even the second, of quite recent vintage. This category also typically includes statements that, when offered in absence of the declarant functions similarly to those used in the ancient ex pafte affidavit system. 527 U. S. 116, 130-131.

The United States Supreme Court further provided that

“[M]ost important, this third category of hearsay encompasses statements that are inherently unreliable.” Id. “[Consistent with this scholarship and the assumption that underlies the analysis in our Bruton line of cases, we have over the years spoken with one voice in declaring presumptively unreliable accomplices confessions that incriminate defendant.” Citing to Lee v. Illinois, 476 U.S. 530,90 L.E.2d 514,106 S.Ct. 2056 (1986).

In Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 93485 S.Ct. 1074 (1965), the United States Supreme Court held that the confrontation clause was plainly violated when a non testifying accomplice’s confession which shifted the responsibility and implicated the defendant (p. 29) as the trigger man was admitted into evidence. Id. at 419. In Lilly, the United States Supreme Court reversed and remanded based upon a violation of the confrontation clause. Id. In the instant case, this Court held that Mr. Shafer’s preliminary hearing transcript could be introduced into evidence, based upon a hearsay exception. As the Court is aware, two previous Nevada Supreme Court cases were reversed based upon the affirmation of Mr. Funches’s conviction. However, the Bruton issue was not raised.

In Lilly, the Virginia Supreme Court found a hearsay exception which would have permitted Marks statement into evidence based upon his refusal to testify. It is important to remember that this Court noted that Mr. Shafer could not be compelled to testify. Nevertheless, Mr. Funches has raised the issue of Bruton which is separate and part from this issue previously considered by this Court.

It appears in a basically unbroken line of cases that the United States Supreme Court has indicated that this type of admission of an out of court statement by a non testifying declarant violates the confrontation clause.

The Supreme Court in Lilly specifically addresses the historical concern that accomplices’ statements implicating another defendant are inherently unreliable. In the instant case, Mr. Funches can demonstrate that Mr. Shafer’s statements have been unreliable. In fact, Mr. Shafer admitted facts after the preliminary hearing that would implicate him in perjury. Mr. Shafer’s statement’s have been shown to be unreliable. Therefore, the only possible conclusion is that Mr. Funches was unable to properly confront his accusers.

Mr. Funches should have been permitted an opportunity to demonstrate to the jury that Mr. Shafer had lied at the preliminary hearing. Mr. Shafer should have been on the witness stand so the jury could view him while he was being cross-examined regarding his inconsistent statements. In Lilly, United States Supreme Court even addresses the historical problems in English law with attempting convictions by ex parte affidavits. This is the starting point for the (p. 30) confrontation clause.

In the instant case, there can be no argument that statements by Mr. Shafer were introduced against Mr. Funches. There was no separate trial held, there were not separate jurys for both Mr. Shafer and Mr. Funches. The prosecutor did certainly not abandon the use of the confessions. Hence, there is a significant violation of the Sixth Amendment Confrontation Clause.

D. INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING THE BRUTON ISSUE.

The United States Constitution guarantees the Defendant the right to counsel. Whereby, the Nevada Supreme Court adopted the Two Prang Standard of Strickland in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984).

In keeping with the standard of effective assistance of counsel, the United States Supreme Court extended the right to counsel to include a convicted defendant’s first appeal.

See, Evitts v. Lucey, 469 U. S. 387, 105 S.Ct. 830 (1985); See also, Douglas v. Califomia, 372 u.S. 353 (1963).

That counsel at each of the proceedings must be adequate, meaningful, and effective. Strickland, Supra. In the instant case, Mr. Funches contends that appellate counsel failed to raise issues on appeal. Although appellate counsel raised two issues on direct appeal, he failed to raise additional issues, which were of constitutional magnitude. Mr. Funches contends that appellate counsel was advised that Mr. Funches’ s trial counsel had preserved the issues on the trial record and that appellate-Mr. Funches wanted these issues raised on direct appeal.

Therefore, where appellate counsel has failed to raise the issues, Mr. Funches is now forced to contend that appellate counsel was ineffective on direct appeal and failed to raise issues of Constitutional magnitude.

(p. 31)

Furthermore, Mr. Funches is forced to raise these discarded issues in a Petition for Writ of Habeas Corpus or suffer the loss of these issues. Based upon appellate counsel’ s lack of effective assistance on direct appeal, Mr. Funches would have received a new trial.

Since appellant counsel failed to present properly preserved issues on direct appeal, the appeal lacked the degree of merit needed to persuade this Court to reverse the conviction. See, Gunter v. State, 95 Nev. 319, 594 P.2d 708 (1979); Vargo v. Warden, Nevada State Prison, 581 P.2d 855 (1978); Stewart v. Warden, Nevada State Prison, 555 P.2d 218 (1976); Palmer v. Dermitt, 635 P.2d 955 (1981); Townsend v. Sain, 372 U.S. 293 (1963).

Appellate counsel’s failure to raise claims should be found to be ineffective assistance of counsel since counsel’ s assistance

1) fell below a reasonable standard expected of appellate counsel; and also

2) appellate-Mr. Funches was prejudiced.

PERFORMANCE: It appears that appellate counsel failed to research the trial transcripts.

The trial transcript showed that trial counsel properly preserved issues of error, (See Trial Transcript). Error of constitutional magnitude occurred during Funches’s trial, and issues should have been raised by the appellate counsel on direct appeal. Instead, appellant counsel failed to raise meritorious issues.

Had it not been for Funches’ s appellate counsel’ s incompetence, or his lack of skill the Court would have heard the above named issues. Since appellant counsel knew, or should have known that issues preserved by trial counsel on the record were tantamount in protecting Mr. Funches’s Constitutional rights on direct appeal.

Appellate counsel’s assistance on direct appeal fell below a reasonable standard of objectiveness expected of attomeys under similar circumstances. (Strickland, supra. Evitts and Douglas).

PREJUDICE:

(p. 32)

When an appellate attorney fails to make a reasonabie effort to determine whether a convicted person has been given a fair trial, then that convicted person has been given a fair trial, then that convicted person has been denied due process of law in violation of the Sixth,Thirteenth, and Fourteenth Amendments ofthe United States Constitution.

Thus, it was a violation of Mr. Funches’ s statutory right to appeal his conviction with the assistance of ineffective counsel, especially when trial counsel had already properly preserved issues on the trial record. Appellate-Mr. Funches Funches did not receive the assistance of counsel on direct appeal that is guaranteed a convicted person on his first appeal. See, Evitts v. Lucey, and Douglas v. California, supra.

Had Mr. Petty raised the issue on direct appeal as was objected to by trial counsel, the outcome of Mr. Funches case would have been revers al. The issue before the court is one of constitutional magnitude. It appears that there is no viable explanation as to why these Bruton violations occurred other than an argument that perhaps the Bruton issue is simply “a tempest in a teapot.”

There can be no defense to ineffective assistance of counsel that an attorney thought he or she had won the case and therefore they did raise viable constitutional arguments. Based upon the foregoing arguments Mr. Funches would respectfully request that this court reverse his convictions pursuant to Bruton v. United States and in violation of the United States Constitution sections five, six, and fourteen.

MR. FUNCHES’S CONVICTIONS MUST BE REVERSED BASED UPON THE FAILURE OF APPELLATE COUNSEL AND TRIAL COUNSEL TO HELP MR. FUNCHES PERFECT THE ISSUE OF SEVERANCE ON DIRECT APPEAL.

In the instant case, trial counsel for the co-defendant, Ed Shafer, made numerous request for the court to severe the trial, stating (p. 33):

Mr. Shafer’s attorney: Your Honor, I would move to sever the trial again, as I have on the previous motion. I believe I am now facing two prosecutors.

Thank you, your Honor.

The Court: Motion denied. Go ahead.

Mr. Shafer’s attorney: If I might quickly, Your Honor. I’m going to renew my motion for severance and going to base it upon prejudice – – I’m not going to reargue the whole thing, Your Honor, just lay a quick record here– the Bruton. (AA, Vol. 3 pp., 525)

Mr. Shafer’s attorney: I believe the court’s been correct in Bruton and me not being allowed to bring out the statements of Mr. Funches regarding Bruton. But I do also believe that they would help my case as far as duress and as far as the State not being able to prove beyond a reasonable doubt that my client joined in on the robbery. I’m not sure what theory they’re going to go on when they get there: He joined in the robbery prior to when it happened, or he joined in the robbery midway through, after the gun was pulled out. I’m not

trying to limit them.

But there are statements Mr. Funches made, and they’re contained in the January 14, 1992, statement, and I believe they would aid my client in being able to say and aid me being able to argue to the jury, “Gosh, this guy was in total control. It’s obvious from all the things he said.” (AA, Vol. 5 pp.891, at line 18).

Clearly from co-defendant’s counsel’s belief that, “I am now facing two prosecutors.” And the renewal of the motion, basing it on “prejudice”, there was a problem with the joint trial. Mr. Funches submits, the Court also recognized that there were problems:

I think that the lawyers, the prosecutor, and the defense counsel, have done an admirable job in recognizing the Court’s rulings and recognizing the difficulty the court had had with this case with joint defendants with clearly antagonistic defenses. That is obvious. Now, I don’t see any reason to compound a problem we already have.

Recognizing the problems, still, the Court refused to sever the trial. But was willing to exclude Funches; statements, while allowing preliminary hearing testimony of co-defendant, Mr. Shafer against the defendant.

The district court abused its discretion when it failed to sever the trials. It was clear that the jury believed the testimony of Shafer. Since, he was found not guilty and Mr. Funches was found guilty by way of perjured testimony.

See, United States v. Sherlock, 865 F.2d 1069 (p. 34) (9thCir. 1989), explained, ” … that the joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trail.” Citing from United States v. Abushil, 682, F.2d 1289,1296 (9th Cir. 1983), cert. denied, 499 U.S. 856,101 S.Ct. 154,66 L.Ed. 2d 71 (1980); See also, United States v. Rameriz, 710 F.2d 535 (1983).

Mr. Funches submits, NRS 174.165 allows the district court to sever ajoint trial, “[I]f it appears that a defendant. .. is prejudiced by joinder. .. of defendant’s … for trial together.” See Ducksworth v. State, 942 P.2d 157 (1997).

In the instant case, Mr. Funches and Mr. Shafer were tried together. Both trial counsel and appellate counsel were fully aware that Mr. Shafer had made two out of court statements incriminating Mr. Funches. Both attorneys were aware the Mr. Shafer had provided swom testimony implicating Mr. Funches. Mr. Funches was convicted. Mr. Shafer was acquitted. On direct appeal, Mr. Petty failed to raise the issue of severance. At the evidentiary hearing, Mr. Petty had difficultly enunciating why this issue was raised. Again, it appears that Mr. Petty was so confident that this Court would reverse Mr. Funches’ s conviction on the issue he raised on direct appeal that he failed to raise issues of constitutional magnitude that would have required reversal.

In Ducksworth and Martin v. State of Nevada, 113 Nev. 780,942 P.2d 157 (1997), this Court reversed the conviction of Carl Lee Martin based upon the failure of the district court to sever the trials. Id. In Martin, this Court held that, “because the defendant did not testify, the admission of his confession violated co-defendant’s right to cross-examination under the Sixth Amendment.” Id. In Martin, both Mr. Martin and Mr. Ducksworth were accused of the sexual assault and murder of a Las Vegas couple. Id. 783.

During the trial, Mr. Martin was specifically damaged by the testimony of Kenya Hall and Al Shuald. Both of these witnesses testified conceming Ducksworth’s confession which mentioned both directed and by inference that (p. 35) Ducksworth had acted with an accomplice. Id. at 794. The district court provided a limiting instruction before both Hall’s and Shuaid’s testimony, that the testimony was only to be considered to Ducksworth. This Court concluded that because Mr. Ducksworth did not testify, the introduction of his confession probab1y inculpated Mr. Martin in vio1ation ofMr. Martin’s right to confront and cross-examine witnesses pursuant to the Sixth Amendment of the United States Constitution. Id. 795. This Court relied upon Stevens v. State, 97 Nev.443, 444-445,634 P.2d 662,663-664 (1981) and Bruton v. United States, 391 U.S. 123,12620 L.E2d. 476, 88 S. Ct. 1620(1968), for the proposition that Mr. Martin had not received a fair trial in vio1ation of his Sixth and Fourteenth Amendment rights under the United States Constitution. Id.

In Ducksworth, supra, this Court reversed Martin’s murder conviction and remanded the matter to the district court for a new trial. The Court concluded, “[T]he evidence against Martin was largely circumstantial and was much less convincing that was the evidence against Ducksworth.” Id. At 166.

Following the testimony of prosecution witnesses, Martin made motions to severe, which were denied.

Furthermore, the co-defendant’ s prior confession was allowed into the trial, without Ducksworth taking the stand. Martin was convicted. But, when the matter came on appeal before the Nevada Supreme Court concluded, ” … that because Ducksworth did not testify, the introduction of his confession, which probably inculpated codefendant Martin, vio1ated Martin’s right of cross-examination secured by the confrontation clause of the Sixth Amendment.” Stevens v. State, 97 Nev. 443, 444-445, 634 P.2d 662,663-664 (1981) (citing Bruton v. United States, 391 U.S. 123, 126,88 S. Ct. 1620, 1622-1623,20L.Ed.2d 476 (1968)).

In the instant case, it is defendant-Mr. Funches’s contention that the district court abused its discretion for failure to sever the case.

In the instant case, Mr. Shafer’s incriminating statements against Mr. Funches were not by inference. Mr. Shafer’ s statement specifically incriminated Mr. Funches over and over (p. 36) again. Mr. Shafer’s out of court statement implicated Mr. Funches. Mr. Shafer’s preliminary hearing transcript incriminated Mr. Funches. The State relied almost exclusively on these statements to convict Mr. Funches.

If Mr. Martin failed to receive a fair trial, how can an argument be made that Mr. Funches received a fair trial. Mr. Martin was apparently convicted with the help of Mr. Ducksworth confessions which by inference implicated Mr. Martin. Whereas, in the instant case, Mr. Funches was convicted by direct accusations by Mr. Shafer.

In Martin, the district court attempted to redact certain porti ons of Mr. Ducksworth’ s statement so that Mr. Martin would not be specifically mentioned. Id. 795. This Court determined that the jury would most like applied Mr. Martin’s name into the blanks of the statement. Id. 795. In the instant case, there was no speculation for the jury, the Bruton violations were clear. The non testifying co-defendant’s statement were used almost exclusively to convict Mr. Funches.

Therefore, Mr. Funches is entitled to a reversal of his convictions as was Carl Lee Martin. It appears that Mr. Funches was much more devastated by the statements of his non testifying co-defendant than Mr. Martin was by the statements of Mr. Ducksworth. Severance should have been mandated. As was previously noted the district court even stated that there appears to be antagonistic defenses in the case. Hence, the district court was fully aware that there were Bruton issues that were apparently considered to be a “tempest in a teapot” by the district court and also severance issues, yet, the court did nothing.

Appellate counsel failed to raise this issue on direct appeal. Appellate counsel was more confident that his issue that he raised on appeal would be successful, to the detriment of Mr. Funches and the obligation to raise issues of Constitutional magnitude which require reversal.

Had appellate counsel raised this issue Mr. Funches convictions would have been reversed. (p.37)

Additionally, the district court, in its ruling denying the writ of habeas corpus, failed to address the issue of severance.

Mr. Funches would respectfully request that his convictions be reversed based on the failure to sever his trial from Mr. Shafer in violation of Carl Lee Martin v. State, supra, and the Fifth, Sixth, and Fourteenth Amendment to the United States Constitution.

III. MR. FUNCHES’S CONVICTIONS MUST BE REVERSED BASED UPON THERE BEING NO CORROBORATION OF THE ACCOMPLICE.

NRS 175.291, states:

A conviction shall not be had on the testimony of an accomplice unless his is corroborated by other evidence which itself, and without aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.

In the instant case, there was limited independent evidence, aside from the accomplice’s statement, that linked Mr. Funches to the commission of the murder. There was no forensic evidence. No DNA, finger prints, or hair fibers found at the crime scene that belonged to Mr. Funches.

Although the Defendant was found to have in his possession a firearm, .25 caliber handgun, that may have been used in the commission of the murder, there as no evidence, except that the co-defendant’s uncorroborated testimony, to suggest that Mr. Funches was at the crime scene and was the individual who pulled the trigger. (A.A., Vol. 6 pp. 1320). A subsequent investigation of Mr. Shafer revealed that he had sworn falsely at the preliminary hearing, when stating that he had no idea that a gun was at the crime scene. He also stated the he was not aware that a robbery was going to be committed against the cab driver. Therefore, when he later informed the detective that he had made false and misleading statements during Mr. Funches’ preliminary hearing, then the statements and testimony became perjured testimony and should not have been able to stand alone in the conviction of Mr. Funches. (p.38)

Mr. Funches was convicted on the perjury-tainted testimony of an uncorroborated witness, a co-defendant. This clearly goes against the provisions of NRS 175.291.

This is the very reason why the statute requires the corroboration of a co-defendant’s accomplice testimony, to deny him the opportunity to place blame on his co-defendant at the interest of self preservation. However, in this particular case, Shafer was given free-reign to false swear, use his testimony as a safety net of lies, remain silent during the trial, while being blanketed with the safeguards of the right to remain silent.

Therefore, because co-defendant Shafer’s preliminary hearing testimony was tainted with perjury, and the statements were uncorroborated, Mr. Funches should not be made to suffer the consequence of a murder conviction. See, Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971), cited, Babich v. Sheriff, Lander County, 89 Nev. 474, at 475,514 P.2d 1293 (1973); Wellman v. Sheriff, Clark County, 90 Nev. 174, at 175,521 P.2d 365, (1974); Eckert v. State, 91 Nev. 183,at 186, 533 P.2d 468 (1975); Marquette v. State, 91 env. 696, at 698,541 P.2d 1099 (1975); O’Donnell v. Sheriff, Washoe County, 91 Nev. 754, at 755, 542 P.2d 733 (1975); Heglemier v. State, 111 Nev. 1244, 903 P.2d 799 (1995).

At the evidentiary hearing in support of the writ of habeas corpus, Mr. Funches’ attorney indicated that there was little if no corroboration of Mr. Shafer’ s allegations. Counsel noted that the only possible corroboration was the seizure of the gun from Mr. Funches that apparently matched a shell casing in the cab of the taxi.

Even though Mr. Funches prior attorneys were not aware of any significant corroboration of Mr. Shafer, Mr. Petty failed to raise this issue on direct appeal. The district court in denying the writ of habeas corpus determined that Mr. Petty’s failure to brief this issue under prevailing professional norms and that there was no probability of this Court would reverse on that basis. (p.39)

The prevailing case on point in the State of Nevada is Heglemeier v. Nevada, 111 Nev. 1244,903 p.2d 799 (1995), In Heglemeier, Steven Becker explained that he along with Heglemier met at Becker’s father’s home on December 14, 1998. Id. 1247. During this meeting the defendant agreed to rob the Kopper Keg lounge. Becker brought his fathers 357 magnum and Heglemeier had possession of a .9mm handgun. During the robbery a struggle ensued where in both Becker and Heglemeier discharged. During the struggle, Mr. Earl was fatally wounded.

Becker testified that he told Heglemeier to change the barrel of his 9mm gun. Id. Eventually police located a 9 mm handgun that belonged to Heglemeier’s former girlfriend Elizabeth Wilmarth. Apparently, Mr. Heglemeier had access to the gun during the period of time that Wilmarth was away in Paris. Id. 1248. The gun shop owner testified that to the best of his knowledge that Wilmarth and Heglemeier were together when she sold the gun bought from the store on December 28, 1998.Id.

The State’s expert testified that he believed that the 9 mm barrel had been changed from the original barrel. Id. Based primarily on the testimony of Becker, Mr. Heglemeier was convicted of murder in the first degree. Id. at 1250. At trial, the independent corroboration introduced was as follows:

1) a cartridge case was recovered from the crime scene came from Wilmarth’s gun;

2) Heglemeier had a close relationship with Wilmarth, accompanied Wilmarth when she purchased the gun, and was familiar with it;

3) Heglemeier knew where the gun was usually kept;

4) one witness thought that Heglemeier may have accompanied Wilmarth when she returned the gun;

5) Heglemeier was acquainted with Becker for several years and was on the list of persons who could visit him in prison;

6) an eyewitness described the gunman as approximately five foot ten inches or five foot eleven inches and the other gunman as approximately five foot five inches or five foot six (p. 40) inches: Becker is five foot eleven inches tall and Heglemeier five foot eight inches tall. Id. at 1251.

In this Courts analysis, the Court explained that this was a particularly close issue with regard to corroboration. The Court explained that,

Although the State did introduce some evidence that might be construed as tending to connect Heglemeier with the crime, we conclude that the evidence is insufficient, as a matter of law, to corroborate Becker’s testimony. Although Heglemeier was familiar with Wilmarth’s gun, both Wilmarth and Heglemeier testified that he had never borrowed it and that he had not gone with Wilmarth when she sold it back to gun store. In addition although Wilmarth’s testimony was less than a model of clarity regarding the gun’s whereabouts during the relevant period, her testimony did not tend to connect Heglemeier with the crime. Any number of people, including Becker could have had access to the gun.” Id. at 451. (emphasis added).

In the instant case, there was absolutely no physical evidence connecting Mr. Funches to the crime. More importantly, Mr. Shafer specifically stated just prior to the crime he was present in the Circus Circus Casino with Mr. Funches. Mr. Shafer specifically told police where they were in the casino. The police obtained video tape to corroborate Mr. Shafer. During trial, as has been previously noted, the defense stipulated with the prosecution that there was no evidence on the video that was relevant. (or tended to connect Mr. Funches). In essence, the one time the State had an opportunity to prove that Mr. Shafer was anything other than a lying murderer, was when they had an opportunity to corroborate him with video tape. What the State ultimately should have leamed was that Mr. Shafer was lying about being present with Mr. Funches at the Circus Circus.

This particular fact raises many difficulties with this case. First, the fact that there was nothing on the video to corroborate Mr. Shafer should have the appearance to this Court and to everyone involving in this case, that perhaps Mr. Shafer was simply blaming Mr. Funches for this crime. It is uncontradicted that casinos have amazing abilities to spot cheaters. It is amazing that Mr. Funches was allegedly in a casino with Mr. Shafer shortly before the shooting. Yet, the video did not show Mr. Funches present at the casino. (p. 41)

There was no physical evidence whatsoever in the taxi cab to link Mr. Funches. In sum, the corroboration of Mr. Shafer’s accusations come from the fact that Mr. Funches was located with the firearm. As was previously stated, this gun was located in Mr. Shafer’s house on or about the time before and after the murder. Therefore, Mr. Shafer had absolute access to the murder weapon. As the Court noted in Heglemeier, Becker had access to the murder weapon. In Heglemeier the Court found that there was insufficient corroboration even though an independent eyewitness testified regarding the rough estimates (heights) of the perpetrators. The eyewitnesses estimates of the perpetrator height were roughly similar to that of Mr. Becker and Mr. Heglemeier.

In the instant case, Mr. Funches specifically raised in his pro per writ of habeas corpus the failure of trial counsel to bring forth a witness who had provided information to the police that he had seen two white males leaving the area in question at approximately the time of the murder. This fact is important because Mr. Funches is black while Mr. Shafer is a white man. This evidence was not introduced at the trial. (Note 4: It is important to note that there appears to be no evidence presented at the evidentiary hearing regarding this issue. However, counsel would note that Mr. Funches specifically raised this issue in his pro per writ of habeas corpus).

Based upon a careful analysis of the Heglemeier case as compared to Mr Funches’s case demonstrates that there was a considerable amount of corroboration against Heglemeier as compared to Mr. Funches. There was little if no evidence to link Mr. Funches other than the firearm which Mr. Shafer had access to at the time of the murder.

Prior to the Heglemeier case this Court considered this identical issue in Eckert v. State, 91 Nev. 183,533 P.2d 468, (1975). In Eckert, an accomplice, Hilt, had allegedly given Eckert money for a 9 mm and a 38 hand gun. Eckert had signed the required federal forms for these guns. Id. Eckert, Hilt and a third individual decided to drive from Kansas to Las Vegas, at some point, they picked up a victim who had just left a bar. According to the third defendant, Eckert (p. 42) shot the victim for no apparent reason. Id. at 184-185,533 P.2d at 469- 470. At trial, the only evidence connecting Eckhart to the murder was the signed federal form for one of guns identified as a murder weapon. This Court concluded that this evidence was not sufficient to corroborate the accomplice’s testimony. Id. at 186,533 P.2d at 471.

In the instant case, there seems to be less corroboration of Mr. Shafer than there was in the Eckert case.

In Heglemeier, this Court concluded that “the dangers are too great in view of the sole purposed to be served by (Becker) to suggest that the contents of this record supply the needed corroboration to hold this conviction.” 111 Nev. 1244, 1252 (citations and quotation omitted).

The failure of Mr. Petty to raise this issue on direct appeal is ineffective assistance of counsel. Both trial counsel and appellate counsel should have worked together to perfect this issue for direct appeal. Mr. Funches’s case is firmly rooted in this case. Mr. Funches was similarly situated to both Eckert and Heglemeier. Yet, trial and appellate counsel failed to make sure this issue was raised and perfected on appeal. There is no excuse that Mr. Petty believed that he had a “dead bang winner” and therefore didn’t need to raise legitimate issues of significance. Had this issue been raised on direct appeal, Mr. Funches would have had his convictions reversed. Therefore, based on the failure of counsel to properly raise this issue, Mr. Funches received ineffective assistance of counsel. But for the failures of counsel, Mr. Funches would have had his convictions reversed. Based on the foregoing Mr. Funches respectfully requests that this Court reverse his convictions based upon the arguments above.

IV. MR. FUNCHES’S CONVICTIONS SHOULD BE REVERSED BASED UPON THE USE OF PERJURED TESTIMONY.

In Mr. Funches writ of habeas corpus, he specifically complained that he had been convicted on tainted and perjured testimony. Mr. Funches makes this allegation numerous times in this petition. Therefore, this argument follows. In a long line of cases, the United States Supreme Court has recognized that the presentation of false evidence by the prosecution (p.43) to convict a defendant violates the due process cIause. See: Napue v. IIlinois, 360U.S. 264,269 (1959); Pyle v. Kansas, 317 U.S. 213, 215-216 (1942); Mooney v. Holohan, U.S. 103,112(1935).

The focus of the inquiry is not the prosecution’s conduct but the effect on the jury of the failure to reveal the tainted evidence.

The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor, but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of administration of justice suffers when any accused is treated unfairly. Brady v. Maryland, 373 U.S. 83, 87 (1963).

In Mooney , it was alleged that the conviction was based on perjured testimony “which was knowingly used by the prosecuting authorities in order to obtain that conviction, and also that these authorities deliberately suppressed evidence which would have impeached and refuted the testimony thus given against him” Mooney, 294 U.S. at 110. The Court held that such allegations, if true, would establish such fundamental unfaimess as to justify an attack on the conviction.

It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court andjury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. Id., at 112.

In the instant case, Mr. Funches was convicted with perjured testimony. This fact appears to be uncontraverted. In the Supreme Court’s decision affirming Mr. Funches conviction on direct appeal, this Court provided a statement of facts for the decision. A review of the statements of facts from Mr. Funches facts on direct appeal demonstrates that the Court (p. 44) outlined Mr. Shafer’s testimony at the time of the preliminary hearing. Thereafter, the Court provided that:

“The State reintterogated Shafer in January 1992, a month before Funches’ scheduled trial date. At that time, Shafer admitted he knew Funches had a gun with him that night and that and the Funches wanted to rob the cab driver. Shafer stated that the cab driver gave him money at Funches insistence, but he denied knowing that Funches would shoot the cab driver. After this statement, the State charged Shafer with robbery and first degree murder on a felony murder theory.” (Court’s decision pp.2).

The Court has previously noted that Mr. Shafer had testified at the preliminary hearing, that he had no involvement in the murder and asserted complete ignorance as to Funches’ possession of a gun that night and the potential occurrence of any crime. A basic review of this Court’s determination ofthe facts demonstrates that Mr. Shafer had obviously lied under oath at the time of the preliminary hearing.

At the preliminary hearing Mr. Shafer denied any knowledge that Mr. Funches had a gun or that any crime was going to occur. However, after the preliminary hearing, we learn that Mr. Shafer is a liar. We learn that Mr. Shafer had involvement in the crime. It is Mr. Funches’ position that he is not only an innocent man but that Mr. Shafer killed the cab driver and has blamed Mr. Funches. Mr. Funches has been incarcerated for numerous years based upon the perjured testimony of Mr. Shafer.

Remembering that Mr. Shafer was extremely deceptive when during the polygraph examination; and Mr. Shafer had access to the murder weapon; Mr. Shafer received money from the cab driver. The video tape that was investigated to support Mr. Shafer’s allegation did nothing but prove that Mr. Shafer could not be corroborated; perhaps, because Mr. Shafer is a liar and committed first degree murder and blamed it on Mr. Funches.

It appears that everyone can agree that portions of Mr. Shafer’s testimony at the preliminary hearing are false. We know the State agrees with that position. based upon their (p. 45) charging Mr. Shafer with murder after he provided a statement after the preliminary hearing.

This Court enunciated a statement of facts in Mr. Funches’ s direct appeal that demonstrates that this Court is aware that Mr. Shafer had lied at the preliminary hearing. Yet, the State successfully admitted the preliminary hearing at trial. The trial judge ruled the preliminary hearing transcript to be admissible. This Court in a three to two decision overruled two Nevada Supreme Court cases in order to sustain Mr. Funches’s conviction. Vet, no one but Mr. Funches in his pro per writ of habeas corpus has complained that he was convicted upon perjured testimony.

Mr. Funches is aware he was convicted on perjured testimony. This Court is aware that the preliminary hearing transcript of Mr. Shafer was introduced even though Mr. Shafer later admitted to facts that demonstrate that he perjured himself at the preliminary hearing. The State of Nevada had Mr. Shafer testify at the preliminary hearing and then reinterviewed him and determined he should be charged with first degree murder. Mr. Shafer had denied at the preliminary hearing having any involvement in the crime. Yet, the State determined that he must be lying because they attempted to convict him beyond areasonabIe doubt of first degree murder. What argument can be made that Mr. Funches was not convicted with tainted andperjured testimony.

The United States Supreme Court has recognized that the presentation of false evidence by the prosecution to convict a defendant violates the due process clause of the United States Constitution. The focus of the inquiry is not on the prosecutions conduct, but the effect on the jury on the failure to reveal the tainted evidence. In the instant case, there was no instruction given to the jury that they should disregard the preliminary hearing transcript of Mr. Shafer because it was tainted with perjury. In fact, the preliminary hearing transcript along with two out of court statements seem to be the basis for Mr. Funches’ s convictions.

(p. 46).

Neither Mr. Funches’ trial attomey nor his appelIate attomey raised this issue. Had this issue been raised on direct appeal, Mr. Funches would have had his conviction reversed.

Therefore, based upon the failure of trial and appellate counsel, Mr. Funches was unable to reverse his conviction. Apparently, Mr. Funches’s appellate attomey decided that these type of issues were not important to raise because he knew he had won the case on the issue he raised on direct appeal. This is unacceptable. Mr. Funches has had numerous issues discarded based upon the ineffective assistance of counsel in violation ofthe Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Based upon the foregoing Mr. Funches would respectfully request tat his convictions be reversed.

V. MR. FUNCHES WAS DENlED THE REASONABLE EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO TRIAL, DURING TRIAL, AND AFTER TRIAL, IN VIOLATION OF MR. FUNCHES’S SIXTH AMENDMENT RICHT TO COUNSEL AND FIFTH AND FOURTEENTH AMENDMENT RICHTS TO DUE PROCESS.

Mr. Funches contends that he was denied a fair trial as a resuIt of the ineffective assistance of counsel. Mr. Funches contends that he received ineffective assistance of counsel prior to trial, during trial, and after trial.

In the instant case, Mr. Funches’s counsel’s representation feIl below areasonable standard of objectiveness, due to his failure to adequately investigate. In that counsel failed to present evidence to the jury conceming the truthfulness of the co-defendant, Mr. Shafer. In the instant case, evidence existed, that could have been presented to the jury conceming Mr. Shafer’s truthfulness. However, defense counsel failed to establish the basis by which to enter these statements into the trial. Therefore, Mr. Funches suffered the negative consequences of an uniformed jury.

(p. 47)

It was clear, or should have been clear to defense counsel, that co-defendant Shafer had provided false testimony prior to trial. Further, defense counsel should have fully investigated Mr. Shafer and his mental and psychological stability.

It appears that defense counsel failed to investigate whether Shafer had a past that consisted of a history of mental and psychological disorder that would affect his ability to tell the truth. (psychological reports were attached as exhibits to Mr. Funches’ writ).

Consequently, Mr. Funches received no consideration from defense counsel, when seeking to have the case severed. Based on the co-defendants’ s history of mental, emotional, and psychological problems that would cause him to false swear and shift the blame of the murder on Mr. Funches.

Moreover, had defense counsel presented the records of Mr. Shafer’s past psychological history to the court, as evidence to substantiate severance. Mr. Shafer suffered from attention deficit disorder, hyperactivity and the possibility of childhood depressive episodes. He had also been engaging in satanic rituals and setting cats on fire. (See, psychological reports).

Mr. Funches contends that had defense counsel presented this evidence to the court at the time that the defendant was seeking severance. Because of defense counsel’s failure to establish the mental, emotion, and psychological state of Mr. Shafer and present these facts to the jury, Mr. Shafer was denied effective assistance of counsel.

A. Failure to investigate facts surrounding the eyewitness’ Statement that two White men were the killers.

Mr. Funches submits this was critical to the defense. Mr. Funches had informed defense counsel that he was not with Shafer at the time ofthe crimes. Further, there was no forensic evidence, no fingerprints, hair samples, no independent witnesses linking Mr. Funches to the crime scene, absent the testimony of Mr. Shafer. In Strickland, supra, (p. 48)

” … counsel has a duty to make reasonable investigations or to make a reasonable investigations or to make areasonabIe decision that makes particular investigations unnecessary.” Id. Strickland, at 2066.

Consequently, there can be no reasonable explantation for counsel’s failure to present the testimony of William Margrave. In Mr. Margrave’ s statement, he identified the two individuals as being “two white men”. It is important to note, that Mr. Funches is a black man, and was not identified by this eyewitness. Clearly, Mr. Funches’s counsel was ineffective for failure to investigate.

B. Video Tape

Mr. Funches submits that along with defense’s counsel’s failure to bring forth the testimony of eyewitness Margrave, counsel also failed to bring forth evidence that Mr. Funches was not on the video obtained from Circus Circus.

This video tape was vital to the defense, so Mr. Funches could disprove Mr. Shafer’s statement that Mr. Funches had been present with Mr. Shafer on the night of the murder. Further, this would have discredited Mr. Shafer’s statements. Mr. Funches’s counsel was ineffective for failing to investigate the above stated arguments.

VI. MR. FUNCHES’S CONVICTIONS MUST BE REVERSED BASED UPON A CUMULATIVE EFFECT OF THE ERRORS AT TRIAL.

In Dechant v. State, 10 P.3d 108 116 Nev. Ad. Op. Number 100 (2000), this Court reversed the murder conviction of Amy Dechant based upon the cumulative effect of the errors at trial. In Dechant, this Court provided, “[W]e have stated that if the cumulative effect of errors committed at trial denies the appellant his right to a fair trial, this Court will reverse the conviction. Id. at 113 citing Big Pond v. State, 101 Nev. 1,3,692 P.2d 1288, 1289 (1985).

This Court explained that there are certain factors in deciding whether error is harmless or prejudicial (p. 49) including whether 1) the issue of guilt or innocence is close, 2) the quantity and character of the area and 3) the gravity of the crime charged. Id. Without a recitation to the previous arguments, Mr. Funches specifically argued that there was no corroboration of Mr. Shafer’s statements incriminating Mr. Funches.

In essence, Mr. Funches was convicted upon the perjured testimony at the preliminary hearing by Mr. Shafer combined with two out of court statements made by Mr. Shafer. The issue of Mr. Funches’s innocence is not only close is should be of great concern for this Court. [emphasis by webmaster]

A review of the entire record on appeal should leave an individual wondering how Mr. Funches was convicted and how the State has sustained that conviction for so many years.

There have been facts alleged by Mr. Funches in his writ of habeas corpus that should cause this Court concern. For example, why his trial attorney’s did not introduce the testimony of witness who had seen two white men at the approximate time and location of the murder.

Mr. Funches is a black man and Mr. Shafer is a white man. The fact that there was no physical evidence tying Mr. Funches to the crime. The fact that the video tape from the Circus Circus did not corroborate Mr. Shafer’s testimony. It is difficult to argue that this case was anything other than very close.

The next consideration is the quantity and the character of the error. In the instant case, Mr. Funches did not receive a fair trial based on numerous errors of Constitutional magnitude.

The errors in this case were significant. There are three serious Bruton violations that occurred.

Mr. Funches was convicted upon uncontraverted perjured testimony by Mr. Shafer. There was no corroboration of Mr. Shafer’s false allegations. Mr. Funches was entitled to severance. Yet, he was convicted in a joint trial with his main accuser. Mr. Funches complained of numerous instances of ineffective assistance of counsel. Mr. Funches has successfully argued that his (p 50) … appellate attorney was woefully inadequate when he failed to raise these issues based upon the fact he thought he won the appeal on a single issue.

Mr. Funches successfully argues that his trial attorney was ineffective based upon the failure to have the jury view the video tape from the Circus Circus, so that they could see for themselves that Mr. Shafer’s so called allegations could not be corroborated. Mr. Funches complained that his trial attorney failed to put forth a witness who had seen two white males at the time of the crime. Mr. Funches complained that his attorneys completely neglected to raise the appropriate issues in his case. As the above arguments demonstrate the quantity and character of the error is significant.

Lastly, Mr. Funches was convicted of the first degree. Undoubtedly, murder of the first degree is the highest gravity of crime charged in the State of Nevada. Therefore, Mr. Funches meets that factor enunciated by this Court in Dechant. Id. Mr. Funches is able to demonstrate that all three factors enunciated in Dechant have been met by the defense. The cumulative errors in Mr. Funches’ s case are bordering on outrageous. Each of the issues raised by Mr. Funches are grounds for reversal. However, the cumulative effect of each and every one of these errors are staggering.

Based on the foregoing arguments Mr. Funches would respectfully request that this Court reverse his convictions based upon the cumulative errors at his trial.

(p. 51)

CONCLUSION

Mr. Funches is entitled to reversal based upon numerous Constitutional errors.

DATED this __ day of JuIy, 2002.

Respectfully submitted by:

CHRISTOPHER R. ORAM, ESQ.
Nevada Bar No. 004349
520 South Fourth Street, Second Floor
Las Vegas, Nevada 89101

Attorneys for the Petitioner
MARRITTE FUNCHES

(p 52)

CERTIFICATE OF COMPLIANCE

I hereby certify that I have read this amended appellate brief, and to the best of my knowledge, information, and belief, it is not frivolous or interposed for any improper purpose.

I further certify that this brief complies with all applicable Nevada Rules of Appellate Procedure, in particular NRAP 28( e), which requires every assertion in the brief regarding matters in the record to be supported by appropriate references to the record on appeal I understand that I may be subject to sanctions in the event that the accompanying brief is not in conformity with the requirements of the Nevada Rules of Appellate Procedure.

DATED this __ day of July, 2002.

Respectfully submitted by,

CHRISTOPHER R. ORAM, ESQ.
Nevada Bar No. 004349
520 S. Fourth Street, 2nd Floor
Las Vegas, Nevada 89101
(702) 384-5563

Attorney for Appellant
MARRITTE FUNCHES

(p 53)

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