Cuzdey v. State

747 P.2d 233, 103 Nev. 575, 1987 Nev. LEXIS 1872
CourtNevada Supreme Court
DecidedDecember 22, 1987
Docket17681
StatusPublished
Cited by22 cases

This text of 747 P.2d 233 (Cuzdey v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cuzdey v. State, 747 P.2d 233, 103 Nev. 575, 1987 Nev. LEXIS 1872 (Neb. 1987).

Opinion

OPINION

Per Curiam:

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of second degree murder with use of a deadly weapon. Appellant received a life sentence in prison with the possibility of parole for the second degree murder conviction, and a consecutive life term for the use of a deadly weapon. Twelve witnesses testified at appellant’s six day jury trial. The trial transcript is 705 pages in length, and the complete record on appeal consists of six volumes.

Because of the severity of appellant’s conviction and sentences, the apparent complexity of the appeal, and the length of the record, on November 19, 1986, this court remanded this matter to the district court for the appointment of counsel to represent appellant in this appeal. On January 16, 1987, this court was notified that the firm of LePome, Willick & Associates had accepted the appointment.

On May 8, 1987, after the opening brief was one week overdue, this court issued an order directing appellant either to file the opening brief within 15 days or to show cause why the appeal should not be dismissed. Counsel for appellant subsequently moved for an extension of time within which to prepare the opening brief. Counsel (Robert LePome) stated that “prior to my appointment from the Court, I undertook certain cases, including a criminal case which is now in jury trial, which case requires approximately 12 hours of my time per day,” and that it was “not possible” for counsel to prepare the opening brief and do a competent job prior to June 15, 1987. Accordingly, counsel requested an extension of time to and including June 15, 1987, *577 within which to file the opening brief. This court subsequently granted counsel’s motion, and allowed appellant an additional two weeks, to and including June 30, 1987, within which to file the opening brief.

On June 30, 1987, this court received appellant’s opening brief. Respondent’s answering brief was filed shortly thereafter, and appellant’s counsel did not file a reply brief. Having preliminarily reviewed the briefs and the record on appeal, we conclude that the opening brief is seriously deficient in several respects. First, we note that the opening brief is only three pages in length. Despite the fact that the trial transcript in this appeal is over 700 pages long, the statement of facts in appellant’s opening brief consists of only one-half page. The entire statement of facts reads:

At trial, the State of Nevada presented eye-witness identification of the Appellant which was not 100% certain. ROA 375. It was quite dark at 4:50 A.M. on April 4, 1986. The street lights were just going off. ROA 746, ROA 807. There was other circumstantial evidence such as blood on the sneakers of the Appellant, ROA 869 and blood on the trousers that Appellant may have been wearing, ROA 874, and blood on some wooden boards which may have been used in the murder, ROA 963. The State could not show that the blood was that of the alleged victim, Mickey DeJegger, ROA 870.
The prosecution in its argument, suggested that Appellant had some obligation to ask certain questions, ROA 1043, and made disparaging remarks about Appellant’s counsel, ROA 1048, and again commented upon the failure of Appellant to present evidence, ROA 1052. The jury was initially deadlocked (ROA 1067, 1068) but after Court prompting, returned a verdict.

Clearly, this statement does not summarize the testimony or evidence presented at trial. As noted above, twelve witnesses testified, yet not a single witness’s testimony is described in appellant’s brief.

Second, appellant’s brief raises two issues on appeal: (1) whether the evidence was sufficient to support the findings of guilty of murder in the second degree; and (2) whether prosecu-torial misconduct deprived appellant of a fair trial. The brief does little more, however, than state these issues. Indeed, the entire argument section of the brief consists of the following:

1. SUFFICIENCY OF THE EVIDENCE
The evidence was not sufficient. The jury was split (ROA 1067 and 1068). In view of the above, we must carefully *578 examine whether there was sufficient evidence. The record does not support any more than a conjecture that Defendant committed the murder. The standard of review is whether the jury, acting reasonably, could have been convinced of Defendant’s guilt beyond a reasonable doubt by the evidence that it had a right to consider.
State v. Rhodig, 101 Nev. 608 at 610 (1985); Citing Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980).
The eye witnesses were not certain and the blood could have come from anyone with a similar type as the alleged victim.
2. PROSECUTORIAL MISCONDUCT
The prosecutor in his closing argument repeatedly tried to shift the burden of proof, ROA 1043, ROA 1068 and made disparaging remarks about Appellant’s counsel, ROA 1048. Such conduct warrants reversal. McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984). The effect of prosecutorial misconduct on a close case such as this was to deprive appellant of his right to a fair trial. The conviction must be reversed.

Clearly, these statements are conclusory, and are unsupported by any argument, reasoning, or application of the law to the facts. Additionally, despite the clear mandate of NRAP 28(a)(4), appellant’s argument on the first issue fails to provide any citations to the six volume record on appeal or the 700 page trial transcript. 1 Moreover, although the state’s answering brief directs our attention to various portions of the recora, counsel for appellant failed to file a reply brief to distinguish\(he state’s arguments or to otherwise rebut them. Although there rnay have been overwhelming evidence of appellant’s guilt presented during the trial below, we simply cannot discern from the opening brief presently on file whether there are any issues of arguable merit in this appeal.

We have previously stated that we expect that all appeals brought in this court will be pursued in a manner meeting high standards of diligence, professionalism, and competence. See State, Emp. Sec. Dep’t v. Weber, 100 Nev. 121, 676 P.2d 1318 (1984). When attorneys fail to brief a case adequately, this court is forced to divert its limited resources to the task of compensating for counsel’s derelictions in order to reach and resolve the merits of the appeal properly. Because the purpose of briefing is *579 to inform this court of all authorities relevant to the issues raised in the appeal, a deficient performance by counsel may alter the outcome of an appeal. See State, Emp. Sec. Dep’t v. Weber, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
747 P.2d 233, 103 Nev. 575, 1987 Nev. LEXIS 1872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuzdey-v-state-nev-1987.