GLORIA M. NAVARRO, District Judge.
This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by James Michael Biela, a Nevada prisoner sentenced to death. Biela filed a pro se habeas corpus petition (ECF No. 2) on January 15, 2020.
Biela paid the $5 filing fee for this action, but also filed an application for leave to proceed in forma pauperis (ECF No. 1). It appears from the information provided in that application that there is good cause to grant Biela in forma pauperis status for this capital habeas corpus action. The Court will grant Biela's application to proceed in forma pauperis for all purposes other than payment of the filing fee.
In addition, Biela filed a motion for appointment of counsel (ECF No. 4). The information provided in Biela's application for leave to proceed in forma pauperis shows that he lacks the resources necessary to employ counsel for this capital habeas corpus action. Therefore, pursuant to 18 U.S.C. § 3599, and in the interests of justice, the Court will appoint the Federal Public Defender for the District of Nevada to represent Biela. If the Federal Public Defender is unable to represent Biela, due to a conflict of interest or other reason, then alternate counsel will be appointed. Biela's appointed counsel will represent him in all subsequent proceedings, pursuant to 18 U.S.C. § 3599(e), unless and until allowed to withdraw.
The Court has examined Biela's petition for writ of habeas corpus pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and will direct the Clerk of the Court to serve the petition upon the respondents.
1. Name and location of court, and name of judge, that entered the judgment of conviction you are challenging:
2. Full date judgment of conviction was entered:
3. Did you appeal the conviction?
4. Did you file a petition for post-conviction relief or petition for habeas corpus in the state court?
5. Is this the first federal petition for writ of habeas corpus challenging this conviction?
6. Do you have any petition, application, motion, or appeal (or by any other means) now pending in any court regarding the conviction that you are challenging in this action?
7. Case number of judgment of conviction being challenged:
8. Length and terms of sentence:
9. Start date July 30, 2010 Projected release date N/A
10. What were the offenses for which you were convicted:
11. What was your plea?
12. Who was the attorney that represented you in the proceedings in state court? Identify whether the attorney was appointed, retained, or whether you represented yourself pro se.
State every ground on which you claim that the State court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action. Mr. Biela hereby expressly incorporates by reference all the facts, claims, transactions, and occurrences raised in the documents, pleadings, and orders attached to this Petition as Exs.1-97. See Ross v. Williams, 896 F.3d 958, 966 (9th Cir. 2018); Dye v. Hofbauer, 546 U.S. 1, 2-3 (2005). To the extent that any claims contained within the instant petition were adjudicated on the merits in state court, the adjudication of those claims was contrary to, or involved an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). To the extent that any claims contained within the instant petition were procedurally defaulted in state court, Biela can overcome that default based on the ineffective assistance of first state post-conviction counsel, suppression of evidence, actual innocence, or some other showing of good cause and prejudice.
On January 9, 2009, trial counsel for Biela filed a Request, Stipulation and Order Re Pre-Preliminary Hearing and Pre-Trial Reciprocal Discovery. Ex. 1. In the pleading, defense counsel, Deputy Public Defender Richard P. Davies, requested "results or reports. . . scientific tests and scientific experiments made in connection with the particular case; and. . . tangible objects that the prosecuting attorney intends to introduce during the case in chief of the State." Id. at 2. At a January 28, 2009 status hearing before district judge Robert H. Perry, Davies addressed Biela's request for DNA evidence, requesting the trial court:
01/28/2009, Status Hearing at 7. Deputy District Attorney Elliot A. Sattler responded by noting he "would like [defense counsel] to actually file a written motion regarding that, and then the State could have an opportunity to look at it, and we can — that can be one of the things that we brief." Id. at 8. Sattler explained he would like to "confer with the Washoe County Crime Laboratory (WCCL) to see what the process is for [providing DNA samples]." Id. In response to trial court's suggestion that defense counsel and the State stipulate to the discoverable evidence, Sattler further noted that he "[didn't] know how exactly how much [DNA] is left or whether it was consumed." Id. at 9.
At a March 19, 2009 status hearing, Davies once more addressed his request for DNA evidence, noting:
03/19/2009 Status Hearing at 17. Sattler responded by noting the parties would request "at some point" the trial court get involved and assist "in crafting an order that. . . [provides] how the evidence is going to be dealt with when it goes and if it goes, from the Washoe County Lab to the independent lab that the defense is going to choose." Id. at 17.
Reports detailing DNA analysis conducted by WCCL on swabs obtained from Emma C. and Denison were eventually obtained by defense counsel; they are: L-7060-07-2, 4, pertaining to swabs collected from Emma C., and L-0366-08-21, 24, 29, 31, 32, 36, pertaining to swabs collected from Dennison. 09/21/2009 Mtn to Suppress at 2. Both reports note that extracted material "will be preserved in the Washoe County Sheriff's Office Section." Id.
On March 30, 2009, Davies delivered an e-mail communication to Sattler and Washoe County District Attorney Richard A. Gammick listing the various DNA samples they "would like to test" and requesting that the State advise as to the "status of [those] samples." Ex. 2. Specifically, Davies requested the following items:
Id. The materials identified with the case number Q-72319 relate to two DNA swabs/samples obtained from Denison's body while materials identified with case number P-149804 relate to three DNA swabs/samples obtained from Emma C. At trial, Jeffrey Rolands, Criminalist with the Washoe County Sheriff's Office Crime Laboratory,
On April 8, 2009, Sattler responded to the March 30, 2009 request to test the DNA samples, also via e-mail. Ex. 3. In the communication, Sattler provided the following details as to each requested item:
Id. Defense counsel Jay Slocum responded on April 10, 2009. Id. Slocum noted the laboratory retained by defense counsel had been consulted regarding the April 8, 2009 communication. Id. Slocum further requested notes, data, and communications generated by the State's laboratory to ascertain why some DNA samples had been "consumed." Id.
At a May 1, 2009 hearing on Biela's motion to sever his criminal charges, Davies once more raised the requested DNA sample evidence. 05/01/2009 Transcript of Oral Proceedings Motion to Sever Counts at 65. Davies noted:
Id. Davies further noted there was, presumably, a "package on the way" from WCCL, but clarified no materials had been transmitted as of that date. Id. at 65. He further noted that he was seeking "all e-mails regarding this case between the [State lab's] analyst, the technical leader of the lab to the Prosecutor and Investigator" as well as "bench notes, electropherograms. . . and results, including statistical calculations." Id. at 67. Davies explained he was seeking a court order directing the transmission of the information. Id. The trial court, in light of Davies' representations and the State's apparent willingness to provide the materials, declined entering an order and directed Davies to attempt to resolve the issue by speaking to Sattler and Gammick. Id. at 66. Sattler, noted "certain items were consumed during the testing process in an attempt to find out who the perpetrator was." Id. at 70.
On September 4, 2009, defense counsel Maizie W. Pusich delivered an email to the WCCL requesting certain information, including "[t]he original volume and remaining volume data on the [DNA] samples." Ex. 6. Pusich explained that "[t]he extraction information provided includes only a remaining percentage." Id. On September 10, 2009, Rolands responded to Pusich and Dr. Vince Miller, Vice-President and Chief Technical Officer of Chromosomal Labs — the company retained by Biela to test the State's DNA samples. Id. Rolands noted his lab had "utilize[d] all of the swabs for the vaginal, perianal, and anal samples based on the presumptive results" and indicated that examination reports would be forwarded to Dr. Miller. Id.
On September 21, 2009, trial counsel filed a motion to suppress "evidence of any DNA tests in which the entire suspect sample has been consumed[] and cannot be retested. . . ." 09/21/2009 Mtn to Suppress at 15. Defense counsel argued that, by consuming the DNA swabs and extract, "the State destroyed material evidence which had a reasonable chance of exculpating Biela." Id. at 5. Defense counsel further argued the loss or destruction of evidence had been undertaken by the State in bad faith. Id. at 11-15. The State filed its opposition on October 22, 2009. 10/22/2009 Opp. to Mtn. to Suppress. In its opposition, the State conceded "[s]ome of the evidence collected has been `consumed' in testing." Id. at 3. However, the State explained that "[t]his does not mean that nothing remains to be tested. There may be extracted material left to test. . . ." Id. The State also falsely claimed "[t]he defendant ha[d] never requested that the WCCL send any of the items in question to an independent lab for testing." Id. at 4.
On October 19, 2009, defense counsel Jay Slocum contacted Rolands via e-mail to inform him Chromosomal Labs had yet to receive "the screening data" previously requested from the WCCL. Ex. 8. The same day, Renee L. Romero, Director for the Washoe County Sheriff's Office Forensic Science Division, responded. Romero noted the lab had "screening reports, requested [quality control] data," and other pertinent information and was ready to mail the information directly to Chromosomal Labs. Id.
On November 6, 2009, the trial court held a hearing on Biela's motion to suppress. 11/06/2009 Transcript of Proceedings Pretrial Motions. Dr. Miller testified for the defense. Id. at 24-94. Dr. Miller testified the WCCL had provided him with an electropherogram,
Id. at 41. Dr. Miller further explained that testing the swab sticks and empty tubes that contained the swabs "would not be a useful endeavor." Id. at 45. He noted the amount of DNA on the stick and empty tubes would be too small to present a "representative sample." Id. He further explained that, with respect to the swab sticks, contamination would be an additional concern. Id. Dr. Miller noted that, during his interactions with Romero and Rolands, he was never advised the WCCL had extract remaining with respect to the DNA samples tested by the State. Id. at 93. He further clarified that the reports obtained from the WCCL were similarly silent as to the retention of extract. Id. at 94.
Romero testified at the November 6, 2009 suppression hearing that DNA extract, as the term was used by the State, referred to "[t]he remaining liquid in the tube after the DNA has been processed, so the extracted DNA from the original evidentiary material." Id. at 112. She represented extract remained for the perineum/perianal swab pertaining to Dennison and for the vaginal and lip swabs pertaining to Emma C. Id. at 121-23. With respect to the perineum/perianal sperm extract, she noted 1 microliter remained, which would be sufficient to develop a male DNA profile. Id. at 122. Further, she acknowledged that evaporation was a possible factor by stating "there's been some evaporation." Id. Defense counsel did not ask and Romero did not state what steps WCCL was taking to prevent further evaporation, if any. See id.
Romero further noted the WCCL had performed hundreds of thousands of DNA tests throughout its history, but only once had resorted to testing a swab stick. Id. at 110, 120. Romero explained she did not recall testing empty test tubes. Id. at 111, 121. At the conclusion of the hearing, Judge Perry engaged in the following dialogue with Sattler:
Id. at 137. Sattler then falsely represented defense counsel had not requested the DNA extracts that supposedly remained. Id. at 137-38. In response, Judge Perry inquired: "My point being, though, that if a request is made, that request would be reasonably considered and honored?" Id. at 138. Sattler responded, "that request would be honored immediately, your Honor." Id.
The trial court denied Biela's motion to suppress on November 9, 2009. 11/09/2009 Order Denying Defendant's Motion to Suppress Evidence. In its order, the court noted:
Id. at 1. In a footnote, the trial court further noted, "It further appears that there may be some test worthy material available which can be given to the defense." Id. at fn. 1.
On December 9, 2009, the parties entered into a Stipulation and Order Regarding Independent DNA Testing through which the State agreed to provide the DNA samples listed in the March 30, 2009 e-mail "to the defense laboratory for possible testing." 12/09/2009 Stip. and Order Re. Independent DNA Testing. The stipulation further noted that the "defense requests that the stick portions of swabs listed [in the March 30, 2009 e-mail] be provided, [along with] the apparently empty test tubes used." Id. at 2. Moreover, the stipulation specifies that the requested items shall be sent to Chromosomal Laboratories, Inc. at their facilities in Phoenix, Arizona. Id.
At trial, Rolands explained the process for obtaining DNA extract samples from swab sticks. He noted he would remove the cotton tip of the swab first, extract the DNA from that cotton tip, and maintain the liquid containing the DNA extract in a test tube. 05/24/2010 TT at 2811.
DNA extract retrieved from swab samples collected from Denison and Emma C. were diluted by the WCCL prior to testing. Rolands further testified dilution of DNA samples occurs when there is "too much DNA" in a sample, to prevent DNA instruments from being overwhelmed. 05/21/2010 TT at 2740-41. He explained the dilution process as "using a small portion from the high concentration of extract and putting it into a buffer or water that will obviously dilute that sample." Id. at 2743. He further explained: "So I still have that small concentration of extract remaining and that is preserved." Id. at 2743.
When asked how it was possible that DNA samples, so rich in DNA as to require dilution, had been fully consumed, Rolands explained: "The consumption issue is not, if I'm understanding this correctly, with regard to the actual extract amount; it was with regard to the swab." Id. at 2742. Rolands further stated "none of the extract []was actually consumed" by the WCCL. Id. at 2743 (emphasis added). He explained that, "if there is anything that's diluted, I would expect there would be some extract remaining on that sample." Id. Slocum then asked, "And what you told me is that you didn't believe that there was any extract that couldn't be tested in this case." Id. at 2744. Rolands responded: "That there should be extract remaining, yes." Id. During re-cross, Rolands reiterated "there was extract remaining [for all DNA samples] at the time when the tests were performed. There was a liquid in those tubes." 05/24/2010 TT at 2825. Rolands then corrected his testimony by noting there was no extract remaining for the DNA sample obtained from the west door handle. Id. at 2827.
Rolands, during subsequent trial testimony, conceded that extract may have evaporated because "the tubes don't seal properly or all the way" and noted that such a situation would pose a problem to independent testing of DNA samples. 05/21/2010 TT at 2744-45. However, during re-direct, Rolands maintained that extract remained to be independently tested. 05/24/2010 TT at 2816.
Further, at trial, Rolands failed to provide any justification for his consumption of DNA samples. Rolands testified he tested the perineum/perianal and the anterior pubic to vaginal introitus swabs retrieved from Denison's body. 05/21/2010 TT at 2707. With respect to the perineum/perianal swab, Rolands testified he performed a differential extraction and developed a DNA profile for an unknown male. Id. at 2709. Rolands was asked, "[s]o as a result of your differential, you actually get DNA and you get a sperm fraction; is that right?" Id. at 2709. After noting that was the case, Rolands was asked, "How many? Do you know that?" Id. During cross-examination, Rolands once more reiterated he did not know "how many sperms were on the swab before [he] consumed all of it[.]" Id. at 2745. Despite having performed the differential extraction and consumed the entire DNA sample, Rolands noted he did not know how many sperms were present following the extraction. Id.
Defense DNA expert, Dr. Vince Miller, testified that, as DNA technical leader of Chromosomal Laboratories, Inc., he reviewed the WCCL's bench notes detailing their DNA tests. 05/24/2010 TT at 3018. Dr. Miller noted that, based on the notes, the State had used "one hundred percent" of each DNA sample swab, "preclud[ing] [his laboratory] from being able to retest the[m] at least from the starting point, which is from doing the extractions and so forth." Id. Dr. Miller explained the importance of conducting such tests from the starting point, describing the process of extracting DNA as "critical. . . because that is often times where contamination may enter into the picture and you []may have reagents that are expired." Id.
Dr. Miller further noted that, based on the notes, "there was zero percent left to be tested" for the extract itself. Id. at 3019. He explained he tested "empty test tubes and swab sticks" sent to Chromosomal Laboratories by the State. Id. at 3023. He noted that, due to the lack of DNA materials in the tubes and sticks, he was not able to "draw any conclusions" from his testing. Id. at 3026. He noted, "I mean, we can't repeat this." Id. Dr. Miller explained he had not been able to obtain a DNA profile for the "male component" in the samples. Id. 3090-91. With respect to the test tubes, he noted the same were empty and could not be tested. Id. at 3098, 3142. He further noted his testing of the perineum swab stick had revealed DNA material-allele 17-which belonged to neither Denison nor Biela. Id. at 3025-26.
On July 13, 2016, Dr. Miller testified at the evidentiary hearing held during Biela's first state post-conviction proceedings. 07/13/2016 Transcript of Proceedings Volume III — Morning Session — Hearing on Post-Conviction Relief. With respect to consumption of the DNA swabs and extract, he noted they had been given "the [swab] sticks" and "one [test] tube pertaining to the perianal/perineum swab, "which was actually devoid of any liquid in it." Id. at 23. With respect to the test tube, he noted "[i]t was dry. . . any liquid that had been in the tube had evaporated off. . . ." Id. at 26. He further noted the evaporation would result in degradation and losing genetic information. Id. at 27. He explained his lab, Chromosomal Laboratories, had "put the deionized water back into it and tried to recover some DNA from that." Id. at 23. Dr. Miller testified the level of DNA was too low to constitute a profile. Id. at 44. Referring to allele 17, he further explained "the sperm fraction [of the DNA extract] ha[d] DNA that is foreign to [Biela]." Id. at 32.
Defense DNA expert Dr. Donald Riley testified he had reviewed a "large volume of pages" from the WCCL and Chromosomal Laboratories, including scientific bench notes, electropherograms, and statistical analyses, as well as police reports and transcripts of prior proceedings in state court. 07/13/2016 Transcript of Proceedings Volume III — Afternoon Session — Hearing on Postconviction Relief at 9.
With respect to consumption of the DNA swabs, Dr. Riley noted the WCCL should have saved "at least half the swabs for retesting" and added he saw "no reason" not to do so. Id. at 10. Dr. Riley also testified regarding the consumption of DNA extract. Id. at 18-20. He noted his laboratory employed several methods that effectively prevent evaporation of extract, including the use of frost-free freezers. Id. at 19. During cross-examination, Dr. Riley further explained the lack of a legitimate basis for consuming the entirety of the swab as well as DNA extract:
Id. at 35. With respect to the perineum/perianal DNA sample, Dr. Riley testified that allele 17, found by Chromosomal Laboratories' testing, served to exclude Biela "from the whole [DNA] profile and [Chromosomal Laboratories'] results." Id. at 43.
Biela's conviction and death sentence are invalid under the federal constitutional guarantees of due process, equal protection, trial before an impartial jury, and a reliable sentence due to a consistent pattern of prosecutorial misconduct and overreaching which distorted the fact-finding process and rendered the trial and sentencing hearing fundamentally unfair. U.S. Const. amends. V, VI, VIII, XIV.
1. As detailed above, the State unnecessarily consumed all swabs used to retrieve DNA samples from Denison, Emma C., and the 1395 Mackay Court residence. With respect to the DNA extracted from those swabs, the State consumed the entirety of the genetic material or, at the very least, failed to preserve the same. The State knew as early as January of 2009 that Biela intended to conduct independent tests on the DNA samples. Further, the State knew that evaporation was a factor possibly affecting the amount of DNA extract remaining. See 11/06/2009 Transcript of Proceedings Pretrial Motions at 122. Therefore, it was imperative that Biela be able to examine the DNA extract remaining at the earliest possible time. The State's delay in disclosing and submitting exculpatory evidence for over a year following Biela's arrest despite the aforementioned threat of evaporation and degradation is indefensible.
2. Through its actions, the State denied Biela the ability to conduct independent re-testing of the DNA evidence, a critical process necessary to the preparation of his defense. Further, the State suppressed DNA evidence favorable to Biela. As noted by both Dr. Miller and Dr. Riley, at least one of the swab sticks provided to defense counsel-containing a DNA sample from the perineum/perianal area of Denison's body-contained genetic material excluding Biela from the DNA profile found by WCCL. The State's suppression of exculpatory evidence violated Biela's due process rights under the Fifth and Fourteen Amendment to the U.S. Constitution.
3. As noted by Dr. Miller at trial, there was no adequate justification for the State's consumption of all DNA swab sticks or for its failure to preserve DNA extract. During state post-conviction proceedings, Dr. Riley likewise opined the WCCL should have saved "at least half the swabs for retesting" and added he saw "no reason" not to do so. 07/13/2016 Transcript of Proceedings Volume III — Afternoon Session — Hearing on Post-Conviction Relief at 10. He described full consumption of swabs as "very rare." Id. at 35. He further explained evaporation of DNA extract is unjustified, given available methods to effectively prevent evaporation of extract, including the use of frost-free freezers. Id. at 19.
4. Even if WCCL did not intentionally consume all DNA extract during its testing, as represented by state officials at trial, the State allowed the DNA extract to become so deteriorated as to preclude independent testing.
5. As evidenced by Romero's testimony at the November 6, 2009 hearing on Biela's motion to suppress, the State was aware that evaporation was a factor affecting the DNA extract and Biela's ability to test the same. At the hearing, Romero noted "there[] [had] been some evaporation" of the DNA extract, but assured the trial court sufficient genetic material remained for independent testing. 11/06/2009 Transcript of Proceedings Pretrial Motions at 122. Defense counsel did not ask, and Romero did not state, what steps WCCL had taken to prevent further evaporation, if any. See id. The trial court, in turn, relied upon the State's representations that extract remained in denying the motion to suppress. See 11/09/2009 Order Denying Defendant's Motion to Suppress Evidence. During his trial testimony, DNA analyst Jeffrey Rolands, like Romero, agreed evaporation was a factor to consider, noting "the tubes don't seal properly or all the way" and conceding that such a situation would pose a problem to independent testing of DNA samples. 05/21/2010 TT at 2744-45. However, during re-direct, Rolands maintained that extract remained to be independently tested. 05/24/2010 TT at 2816.
6. At a hearing on Biela's state post-conviction habeas petition, Dr. Riley described available methods employed by laboratories, such as his own, to prevent evaporation, including the use of frost-free freezers. 07/13/2016 Transcript of Proceedings Volume III — Afternoon Session — Hearing on Post-Conviction Relief at 19.
7. The State purposely, without justification, and in bad faith, consumed all swab sticks containing DNA samples collected from victims Emma C. and Denison. In addition, despite being knowing Biela desperately sought to conduct independent testing of the DNA extract, the State failed to preserve the same. The State knew evaporation was a factor causing the loss or degradation of the DNA extract and yet refused to implement any remedial measures to prevent it from occurring. As a result, by the time Dr. Miller at Chromosomal Laboratories sought to conduct independent testing, insufficient genetic material remained to corroborate or disprove the State's results. See 05/25/2010 TT at 3090-91.
8. The evidence the State consumed was potentially useful, as it might have exonerated Biela. The alleged presence of Biela's DNA on the victims or at the crime scenes may have been the result of contamination or bad analysis by the WCCL, but it is impossible to make such a determination now because the State consumed all of the raw evidence. As a result, Biela is entitled to a new trial where the State should be prohibited from using any of the DNA evidence against him.
9. Over twenty swabs were used to collect DNA samples from Emma C. and Denison's body during the course of the investigation. As evidenced by the State reports and e-mail communications, every single swab collected from both victims was fully consumed to obtain DNA extract. See Ex. 3. At trial, the State misled the jury regarding the number of swabs collected and consumed by the WCCL. Thus, the State sought to validate their consumption of all swabs collected from Emma C. and Denison and to suggest Biela had the opportunity, but refused, to conduct independent DNA tests.
10. Deputy District Attorney Sattler knowingly presented false testimony from DNA analyst Rolands' that only some of the samples had been consumed. 05/21/2010 TT at 2724. Sattler likewise presented false testimony regarding the number of swabs collected from each area of Denison and Emma C.'s body that resulted in a DNA profile. Id. 2724, 2645-46. Contrary to Sattler's assertions, at least two and up to four swabs were used to collect DNA samples from each relevant area of both Denison and Emma C.'s body. See Ex. 26. Sattler knowingly presented false testimony in order to mislead the jury to validate the otherwise unjustifiable consumption of all twenty-plus swabs used upon Denison and Emma C. to collect genetic material.
11. The State also misrepresented the amount of DNA extract that remained following the WCCL's tests as well as Biela's ability to conduct his own tests. Rolands testified: "The consumption issue is not, if I'm understanding this correctly, with regard to the actual extract amount; it was with regard to the swab." 05/21/2010 TT at 2742. Rolands further stated "none of the extract []was actually consumed" by the WCCL. Id. at 2743 (emphasis added).
12. Rolands, during subsequent trial testimony, conceded that extract may have evaporated because "the tubes don't seal properly or all the way" and noted that such a situation would pose a problem to independent testing of DNA samples. 05/21/2010 TT at 2744-45. However, during re-direct, Rolands maintained that extract remained to be independently tested. 05/24/2010 TT at 2816.
13. Rolands' fellow DNA analyst, Dr. Smyth-Roam, similarly testified DNA extract remained and was available for independent testing. When asked whether there "[w]as []any remaining extracted material that could have been tested once [she] was done" with the testing of swabs collected from Emma C, she noted "from some of the extract, no, and some, yes. . . ." 05/14/2010 TT at 1101. She specified the amount of extract left pertaining to the vaginal swab — 6.7 microliters — was "sufficient" for retesting. Id. at 1102. During cross-examination of defense expert Dr. Miller, Sattler referred to the State reports to once more falsely claim DNA extract remained to be independently tested. 05/25/2010 TT at 3092-93.
14. Contrary to the State's representations, no DNA extract remained by the time Chromosomal Laboratories received the test tubes. As explained by Dr. Miller: "there was zero percent left to be tested" for the extract itself. 05/24/2010 TT at 3019, 3023, 3026. Dr. Miller explained he had not been able to obtain a DNA profile for the "male component" in the samples. 05/25/2010 TT at 3090-91. With respect to the test tubes, he noted the same were empty and could not be tested. Id. at 3098, 3142; see also 07/13/2016 Transcript of Proceedings Volume III — Morning Session — Hearing on Post-Conviction Relief at 23 (he received "the [swab] sticks" and only "one [test] tube pertaining to the perianal/perineum swab, "which was actually devoid of any liquid in it."); Id. at 26, 44.
15. Here, the State, rather than ascertaining whether DNA extract did in fact remain available for independent testing at the time it was transferred to Chromosomal Laboratories, made numerous false representations to the jury with a single purpose: suggesting Biela was able, but had elected not to conduct testing. During cross-examination of Dr. Miller, Sattler insisted that DNA extract had been delivered to Chromosomal Laboratories in sufficient quantities to conduct independent testing. For example, he noted, "Actually, there's extract remaining to test, true?" 05/25/2010 TT at 3093.
16. The State knew or should have known that insufficient DNA extract remained by the time the sample test tube and swab sticks were delivered to Chromosomal Laboratories. By suggesting the opposite was true and arguing Biela elected not to conduct independent tests, the State engaged in flagrant and egregious misconduct that violated Biela's due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution.
17. During closing statements, Deputy District Attorney Sattler argued Biela's DNA expert had never attempted to conduct an independent test of the DNA samples collected by the State. Specifically, Sattler, referring to the empty DNA test tubes or vials, made the following representation:
05/26/2010 TT at 3398. However, contrary to Sattler's statements, Dr. Miller had in fact attempted to test the empty vials. Trial counsel knew that to be the case, as he noted during his opening argument when he stated, "You're going to learn that we were left with some tubes where the DNA was extracted that are dry, and you're going to hear about how we tried to rehydrate those tubes to get the results that the [WCCL] had said the results were." 05/12/2010 TT at 562. Dr. Miller testified during Biela's case-in-chief regarding this very subject. 05/24/2010 TT at 3023-24. He acknowledged receiving the empty vials and noted "[the empty test tubes] were sent to us. . . and so we went ahead and tested these." Id. at 3023. Dr. Miller went on to detail his laboratory's findings based on the tests performed. See id. at 3023-24. During cross-examination, Dr. Miller once more noted that he had been provided "empty tubes" to test that had not "retain[ed] extract." 05/25/2010 TT at 3098. Sattler acknowledged that the test tubes were empty by inquiring whether the lack of extract could be adduced to evaporation. Id.
18. Likewise, during Biela's 2016 state post-conviction proceedings, Dr. Miller reiterated his laboratory had attempted to conduct tests on the swab sticks and single test tube received from the State prior to trial. 07/13/2016 Transcript of Proceedings Volume III — Morning Session — Hearing on Post-Conviction Relief at 26. He explained his lab, Chromosomal Laboratories, had "put the deionized water back into it and tried to recover some DNA from that." Id. at 23. Dr. Miller testified the level of DNA was too low to constitute a profile. Id. at 44.
19. Sattler knew that Biela had attempted to conduct independent tests upon those materials provided by the State. Sattler further knew that Biela had not been able to generate DNA profiles from those tests on account of the State's bad faith consumption of both the DNA swabs and the extract. Still, Sattler blatantly misled the jury by asserting Dr. Miller had received more than one empty test tube and by further asserting Dr. Miller had not tried to test the same.
20. On January 9, 2009, defense counsel filed a Request, Stipulation and Order Re Pre-Preliminary Hearing and Pre-Trial Reciprocal Discovery requesting "results or reports. . . scientific tests and scientific experiments made in connection with the particular case; and. . . tangible objects that the prosecuting attorney intends to introduce during the case in chief of the State." Ex. 1 at 2. On April 10, 2009, defense counsel Jay Slocum contacted Deputy District Attorney Elliot A. Sattler via e-mail requesting information pertaining to the WCCL's testing of DNA samples, including "all data files used and created in the course of performing tests and analyzing data in this case" and "all data necessary to independently reanalyze the raw data." Ex. 3. At a May 1, 2009 hearing, Davies requested:
05/01/2009 Transcript of Oral Proceedings Motion to Sever Counts at 67. Sattler indicated he had directed Davies to speak with WCCL directly and "would be more than happy. . . to assist counsel for the [d]efense in resolving [any issue with missing discovery]." Id. at 71. Despite Sattler's assurances, and repeated subsequent requests for the materials, Ex. 6; 11/06/2009 Transcript of Proceedings Pretrial Motions, the State never provided pre-screening notes from WCCL. At trial, Dr. Miller noted he "actually never got the records from Suzanne Harmon. . . we did not get to actually look at the initial data. We requested that, and we never did receive it. . . ." 05/25/2010 TT at 3102-03. Despite the State's unequivocal discovery obligations, Sattler effectively blamed Dr. Miller for not requesting the notes. See id. at 3107-08.
21. The prescreening notes from Suzanne Harmon are of critical importance. Harmon testified she was the WCCL analyst charged with conducting pre-screening of the DNA swabs collected from Emma C. and Denison for the presence of seminal fluid. 05/21/2010 TT at 2615. With respect to the perineum/perianal swab collected from Denison, she testified that four spermatozoa had been found. Id. at 2651. DNA analyst Rolands, in turn, testified he elected to consume the entirety of the swabs, thus preventing independent testing, based on Harmon's findings. 05/24/2010 TT at 2812.
22. The State failed to disclose Harmon's prescreening reports, which would presumably reproduce her findings as to tests performed on the swabs. By failing to provide the subject discovery, Biela was precluded from examining and impeaching the State's purported basis for consuming the swabs. The State's actions amounted to egregious misconduct that precluded Biela from putting forth an adequate defense and violated his due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution
23. The trial court entered an order regarding other bad acts evidence. 04/26/2010 Order Regarding Other Bad Acts Evidence. In the order, the trial court noted that it was concerned about the potential prejudicial effect of some of the evidence, and explicitly directed the parties that "[n]o witness, counsel or other person speaking on the record is to use the word `porn' or similar characterization to reference this evidence. Neither may the internet materials be described in any way without the use of actual examples." Id. at 7-8. During trial, defense counsel asked whether the trial court was upholding its earlier ruling. 5/20/2010 TT at 2299-2300. The trial court replied in the affirmative and the State noted that it had informed all witnesses that they could not use the word "pornography." Id. at 2300.
24. The trial court spent considerable time explaining what witnesses could and could not say when testifying. See, e.g., 5/20/2010 at 2300 (Witnesses could "say that they show pictures of females wearing thong underwear," rather than use the term adult images); Id. at 2305 (detectives could not testify that thong underwear were found on top of "an adult magazine"); Id. at 2307 (Pictures were not to be characterized. They could be described as, for example, a woman wearing a thong, but could not be characterized as "an adult picture" or "a pornographic picture" or "a dirty picture" or "a sexual picture"). The trial court further warned the State on several different occasions to "be very careful, very careful", "be very, very careful," and "be very, very, very careful," in how pictures were described. Id. at 2309-11.
25. The State violated the trial court's order on several occasions. In the opening statement, the State alleged two pairs of thong underwear were found on top of a Playboy magazine. 5/12/2010 TT at 555. The State also commented that Biela's computers "revealed hundreds of adult images, many of which depicted young women in poses displaying their thong underwear." Id. at 555-56.
26. Detective Roya Mason testified that she examined Biela's computers and found 1164 instances of the word "thong." 5/20/2010 TT at 2404. She further specified that she found several instances that included "dirty thongs," "used thongs," "dirty thongs and asses," and "fetish thongs." Id. at 2405-06. The following exchange between the State and the detective occurred:
Id. at 2407-08. The detective went on to describe a list of links that she found in her computer search, which included at least 14 separate instances of the phrase "thong fetish" followed by a number, and the following phrases: "Thong fetish 14, very high quality," "Thong fetish 13," Coming on mom's thongs," "Sexy candid girls in thongs and see-through," "Mother's dirty thongs," "dirty comments about my slutty mom. Thongs and butts. Thongs. Bree Olson, sexy thongs/sexy string." Id. at 2413-14.
27. Detective Wygnanski testified that he received a secret witness tip from someone stating Biela was looking at pornographic websites. 5/21/2010 TT at 2557. Outside of the presence of the jury, defense counsel objected to the detective's reference to pornography. Id. at 2582-83. The State contended that that referring to "pornography" was an inadvertent slip, but then admitted Detective Wygnanski may not have been notified that he could not to use the word "pornography." Id. at 2583-84. The State conceded that this was a clear violation of the trial court's order, stating that it "acknowledges that [the pornography reference] is a violation of the Court's order. . . . I understand that Counsel would not want to object to it at the time and draw more attention to the fact that he said it. . . . I don't know if they want [ ] a curative instruction. Obviously, that would draw more attention back to [the pornography reference], but I think that is the appropriate remedy, if a remedy is required." Id. at 2584. The State further conceded that it had not instructed Detective Wygnanski to refrain from referring to pornography and acknowledged that it was "a joint mistake on both our parts." Id. at 2584.
28. The State committed misconduct by failing to properly instruct its witness and eliciting prejudicial testimony. Detective Wygnanski considered the Secret Witness tip a critical break in the investigation and recalled the contents of that tip "[l]ike it was. . . yesterday," including the pornography allegation. Id. at 2557-58. The State's failure to anticipate that the Detective would testify to the contents of the tip, including the use of the term "pornography" is not justified. Because any reference to pornography in this case was highly prejudicial, Detective Wygnanski's reference to it should have triggered a mistrial.
29. The State violated the trial court's specific orders on several occasions during the trial. The trial court categorically banned other bad acts testimony, including photographs and the Internet websites found during the search of Biela's computer, to be characterized as pornography or as sexual in nature. However, the State clearly violated the trial court's order in both comments and testimony prompted from witnesses.
30. The specific websites elicited by the State in its questioning of Detective Mason included language that characterized those websites as sexual in nature, including the words "fetish," "sexy," "slutty," and "coming." These descriptions clearly convey the exact inference that so concerned the trial court. In fact, these particular terms are much more controversial and inflammatory than the characterization of a photograph or website as "adult." Further, the State went out of its way to elicit testimony from Detective Mason to show that these websites were not non-controversial "shopping-type" websites.
31. The erroneous admission of this evidence affected Biela's substantial rights. The trial court specifically found that the danger of unfair prejudice from such characterization was too great to permit admission at trial. The State's deliberate contravention of the trial court's order was a calculated effort to prejudice Biela.
32. Biela's constitutional rights were violated by the pervasive prosecutorial misconduct that permeated his trial. The State acted in bad faith in failing to preserve potentially exculpatory evidence, therefore, it should not have been able to use the DNA evidence against Biela at trial. In addition, there is a reasonable probability of a more favorable outcome if material exculpatory and impeachment DNA and crime lab evidence had not been suppressed by the State, and if the State had not knowingly presented false testimony. The prosecutorial misconduct in argument had a substantial and injurious effect on the jury. Biela is entitled to a new trial based on this pervasive misconduct.
Biela's conviction is invalid under the federal constitutional guarantees of due process, a fair trial, and the effective assistance of counsel at trial due to the failure of his trial counsel to perform within the range of professional conduct expected in capital cases. U.S. Const. amends. V, VI, VIII, XIV.
1. On September 21, 2009, defense counsel filed a motion to suppress "evidence of any DNA tests in which the entire suspect sample has been consumed[] and cannot be retested. . . ." 09/21/2009 Mtn. to Suppress at 15. The State filed its opposition on October 22, 2009. 10/22/2009 Opp. Mtn. to Suppress. In the same, the State conceded "[s]ome of the evidence collected has been `consumed' in testing." Id. at 3. However, the State explained that "[t]his does not mean that nothing remains to be tested. There may be extracted material left to test. . . ." Id. The trial court held a hearing on November 6, 2009 where the State again assured the court that DNA extract remained to be independently tested. 11/06/2009 Transcript of Proceedings Pretrial Motions at 137.
2. The trial court, in its November 9, 2009 Order Denying Defendant's Motion to Suppress Evidence notes, "there are some samples which are still available and which can be provided. There may also be sufficient materials on the swab sticks to allow testing." 11/09/2009 Order Denying Defendant's Motion to Suppress Evidence at 1. In a footnote, the trial court further noted, "It further appears that there may be some test worthy material available which can be given to the defense." Id. at fn. 1.
3. Contrary to the false representations made by the State to the trial court, no DNA swabs or extract remained that was capable of independent testing, as subsequently explained by Dr. Miller 07/13/2016 Transcript of Proceedings Volume III — Morning Session — Hearing on Post-Conviction Relief at 23; 05/24/2010 TT at 3023, 3026; 05/25/2010 TT at 3090-91. He further noted his testing of the perineum swab stick had revealed DNA material-allele 17-which belonged to neither Denison nor Biela. Id. at 3025-26.
4. Despite the State's pre-trial misrepresentations regarding the amount of DNA extract remaining, trial counsel failed to renew their motion to suppress DNA evidence. As evidenced by his testimony at trial and Biela's post-conviction proceedings, Dr. Miller had verified prior to trial that insufficient DNA extract remained. Trial counsel was ineffective in failing to renew their motion to alert the trial court regarding the State's misrepresentations at the November 6, 2009 hearing on pretrial motions. As shown by the November 9, 2009 order, the trial court had placed significant weight upon the State's representations and Biela's purported ability to conduct independent testing. Thus, a renewed motion to suppress would have likely compelled the trial court to rules that suppression of the evidence was appropriate.
5. At trial, Rolands testified to performing a "straight DNA extraction" on swab number 3, retrieved from the exterior door knob at 1395 Mackay Court. 05/21/2010 TT at 2693. Rolands explained his test indicated there was a dominant and a minor DNA profile on the swab. Id. With respect to the dominant profile, Rolands explained he developed a "male dominant DNA profile," which matched the DNA reference sample obtained from Biela as well as DNA profiles obtained from swabs taken from Denison and Emma C. Id. at 2697, 2710-20.
6. During cross-examination, Rolands, in response to defense counsel's questioning regarding allele drop-out, described the male, dominant DNA profile as "a nice, full DNA profile. . . ." Id. at 2772. However, during subsequent questioning, Rolands also noted that certain marker locations or "locus" were missing in the male, dominant DNA profile. Id. at 2775-76. In other words, swab number 3 contained not a "full DNA profile," but rather a partial profile. Still, Slocum failed to impeach Rolands' significant misrepresentation regarding the nature of the critical DNA sample. Finally, trial counsel failed to impeach Rolands with the Reno Police Department's report dated December 3, 2008 wherein Detective Jenkins noted Rolands referred to the dominant DNA profile obtained from swab three as a "nearly complete DNA profile." Ex. 18.
7. During post-conviction proceedings, counsel for Biela presented testimony from Dr. Riley regarding the DNA tests conducted by the WCCL. 07/13/2016 Transcript of Proceedings Volume III — Afternoon Session — Hearing on Post-Conviction Relief at 7-23. Dr. Riley testified the DNA profile obtained from the exterior west door handle was a "partial profile, and it's a mixture of at least three different people." Id. at 15. He further explained, "I seriously doubt there's a reliable protocol for interpreting a three-person mixture. I mean, even two-person mixture, that's not resolved within the forensic DNA community." Id. at 15-16. Trial counsel were ineffective for failing to present similar testimony at trial in order to impeach Rolands' testimony.
8. Rolands' testimony regarding the DNA profile obtained from the west door handle of Mackay Court, which purportedly matched Biela's reference sample, was not supported by existing scientific methodology, was unreliable, and was thus inadmissible. Trial counsel were ineffective for failing to move to suppress testimony concerning the same. In the alternative, trial counsel was ineffective for failing to object to Rolands' testimony that the subject DNA profile was a "full profile." 05/24/2010 TT at 2772.
9. At trial, Rolands testified he performed DNA tests on cuttings from two pair of women's underwear provided by Suzanne Harmon under case number P140929. 05/21/2010 TT at 2712-13. The cuttings-labeled L1, L2, L3, M1 and M2-were obtained from pink and black pairs of underwear found "underneath Denison's right knee." Id. at 2646. Rolands testified he performed straight DNA extractions upon the cuttings. Id. at 2713.
10. Rolands indicated stains on the L1 and L3 cuttings "indicated at least two sources of DNA" one of which matched "the same unknown male DNA profile" obtained from swabs performed upon Denison's body. Id. However, Rolands testified the M1 cutting showed "an unknown Y chromosomal DNA profile" that did not match the unknown, male DNA profile obtained from the L1 and L3 samples. Id. at 2715. Rolands conceded that the unknown, male DNA profile obtained from the M1 cutting "[didn't] match anything else [tested] in th[e] case." Id. When asked whether the M1 male DNA profile would be "run through the database in the chance it might hit on somebody," Rolands replied: "With regard to the female profile." Id. at 2716. Rolands did not clarify whether the M1 male DNA profile had been run through the WCCL database at any point or whether it had been merely compared to DNA samples obtained in the Emma C. and Denison investigations.
11. Despite the above-referenced evidence, trial counsel failed to request the M1 cutting for independent DNA testing despite knowing the sample-obtained from women's underwear found underneath Denison's body-contained a "mystery" male DNA profile. Id. There was no valid strategic reason for trial counsel to conduct, or attempt to conduct, DNA tests on swabs collected from Denison, but not from articles of clothing purportedly found along with the deceased victim.
12. As described in Ground 2(III), above, the State's DNA testing of women's underwear found alongside Denison's body revealed the DNA profile of an unknown male. See id. at 2715-16. Despite the existence of such patently exculpatory DNA evidence, uncovered as early as February 15, 2008, the State failed to provide the sample to defense counsel for independent testing. Moreover, the State failed to disclose whether the unknown, male DNA profile was run through DNA databases—in addition to being compared with DNA profiles obtained through the course of the investigations—and whether a DNA match resulted from any such effort. Per the parties' stipulation, the State agreed to provide "tangible objects that the prosecuting attorney intends to introduce during the case in chief of the State." Ex. 1 at 2. In addition, per the trial court's orders, the State was under an obligation to provide discoverable evidence to Biela within ten business days. See 01/28/2009 Transcript of Proceedings Status Hearing at 10-11.
13. Despite the above-referenced discovery obligations, the State failed to produce an evidentiary sample—identified as "M1" at trial—from which it extracted the DNA profile of an unknown male. Trial counsel was ineffective for failing to object to the State's discovery violation, conduct an independent DNA test of the M1 sample, and seeking to ascertain the identity of the unknown individual.
14. At trial, the State played a video for the jury depicting a conversation between Biela and his former girlfriend, Carleen Harmon, that took place on November 25, 2008 at the Reno Police Department shortly after Biela's arrest. 05/19/2010 TT at 2111-12. As detailed below, trial counsel were ineffective in failing to move to suppress Biela's statements in the recording.
15. David Jenkins described transporting Biela to the Reno Police Department and placing him in an interview room equipped with video cameras and microphones hidden from view. Id. at 2094-95. He explained the room was electronically monitored and observed from another room. Id. at 2095. He explained he observed and listened to Biela from the other room in real time. Id. at 2096. Jenkins stated he did so to guarantee Biela's security. Id. at 2099. Upon Jenkins interviewing him, Biela first waived his Miranda rights and answered some questions. Id. at 2102. Shortly thereafter, Biela invoked his constitutional right to counsel, ending the interview. Id. at 2106.
16. Jenkins further testified that "almost immediately upon [Mr.] Biela being taken into custody[,]" he called Carleen Harmon to notify her that Biela's son Joshua's DNA had "come[] back as a match" for DNA samples retrieved from Emma C. and Denison. Id. at 2107. Harmon was then "invited []to come down" to the Reno Police Department by Jenkins and Wygnanski. Id. at 2106. Upon arriving at the station, Jenkins reiterated to Harmon the DNA was a match and stated he was "very sorry." Id. at 2108. According to Jenkins, Harmon and Biela at some point purportedly "express[ed] interest in seeing and speaking with [each other]." Id. at 2109. Jenkins described his efforts in having the two meet in the interview room as follows:
Id. at 2010. Contrary to Jenkins' testimony at trial, Biela was never warned he was being recorded. See Ex. 57. The transcript of Biela's interrogation shows he asked if he was being videotaped. Id. at 3, ¶25. Jenkins responded: "We have the capabilities to do that, I don't think it's working right now." Id. at 3, ¶27. Biela asked again if he was being recorded to which Jenkins responded: "Maybe, maybe, we were having some technical difficulties, they just came in and said the recorder wasn't working right so I don't know if are or not. . . ." Id. at 3, ¶¶31-32. Jenkins then continued interrogating him.
17. At trial, Jenkins explained the conversation between Harmon and Biela was recorded. 05/19/2010 TT at 2111. The State then played the tape of the conversation for the jury. Id. at 2111-12. Following the recording, Jenkins, at Sattler's request, repeated a statement from Biela to Harmon heard during the recording. Specifically, Jenkins quoted Biela as stating that in the days prior to his arrest, he had tried to purchase a gun because "[h]e was going to kill himself." Id. at 2113.
18. Jenkins testified that, following the meeting with Harmon, they drove Biela to Washoe County Jail. Id. at 2113. Neither Jenkins nor Wygnanski re-administered Miranda warnings while on the way to Washoe County Jail. While in the car, Wygnanski and Jenkins began talking to Biela regarding the statement to Harmon indicating he wanted to harm himself. Id. at 2114. Jenkins and Wygnanski tried to convince Biela not to harm himself. Id. In response to Jenkins and Wygnanski's unsolicited advice, Biela "spontaneous[ly]" told them "he was evil and that he hoped his son wouldn't grow up to be f'ed up like him." Id. at 2114. Jenkins and Wygnanski uttered the above-referenced statements to Biela knowing that he would likely incriminate himself in response. Their statements, meant to elicit statements from Biela, were made despite his having earlier invoked his right to speak to counsel.
19. Trial counsel were ineffective for failing to move to suppress his statements to Harmon as well as Jenkins and Wygnanski as involuntary and taken in violation of his Miranda rights. There was no valid strategic reason for trial counsel's failure to move to suppress the above-referenced statements, which were portrayed by the State as admissions of guilt.
20. On March 11, 2008, Robert McDonald, Lieutenant with the Reno Police Department, faxed a letter to Renee Romero, wherein he made an "official request to have the extracted DNA specific to the suspect in the Denison homicide case. . . analyzed at DNA Print Genomics in Sarasota, Florida, to determine a physical profile." Id. (emphasis added); Ex. 10. The letter contains notations from Romero on the margin wherein she directs Rolands to mail the samples to the Florida laboratory. Id. Rolands responds with his own notation: "sample not sent — not enough for testing." Id. (emphasis added).
21. The March 11, 2008 letter indicates that, as of that date, contrary to Rolands' trial testimony, they developed a male DNA profile and the State did not have a suspect DNA profile. The letter undermines the reliability of the DNA tests performed by Rolands in the days following the discovery of Denison. Further, it contradicts Rolands' testimony regarding the results of those tests, through which the State allegedly obtained a DNA profile belonging to an unknown male subsequently identified as Biela.
22. The March 11, 2018 letter also contradicts Rolands' trial testimony that extract remained to be tested by an independent laboratory, such as Chromosomal Laboratories, Inc., which was retained by Biela for that specific purpose. See 05/21/2010 TT at 2744; 05/24/2010 TT at 2825. In his handwritten notation within the letter's margin, Rolands notes there is not enough DNA samples remaining to be tested. See Ex. 10. Rolands' notation also contradicts Romero's statements at Biela's November 6, 2009 suppression hearing during which she assured the trial court that "a number of different extracts [ ]still remain[ed] in the case[,]" including extract on the "perineum swabs," and that those extracts were available for independent testing. 11/06/2009 Transcript of Proceedings Pretrial Motions at 112-13.
23. Despite the relevance and critical importance of the March 11, 2008 letter, trial counsel failed to use the same to impeach Romero at the November 6, 2009 suppression hearing as well as DNA analyst Rolands at trial. There can be no valid strategic reason for failing to call into question the reliability of the DNA tests conducted by the WCCL. Had trial counsel represented Biela competently and impeached Romero and Rolands with the March 11 letter, the trial court would not have denied Biela's motion to suppress.
24. As part of its pre-trial discovery obligations, the State provided Biela's trial counsel with a document titled "Crime Lab Department Case Submission Evidence Summary." Ex. 11. The document, prepared by the Washoe County Sheriff's Office, lists the various DNA samples submitted for testing as part of the Denison investigation. The document shows that critical DNA swabs collected from Denison-"introitus, vag ec, vag sc, perineum ec, perineum sc, anal ec and anal sc" — were submitted for testing by "JMR," i.e., WCCL DNA analyst Jeffrey Rolands, on February 11, 2008.
25. At trial, despite the submission date indicated in the above-referenced document, the State presented testimony from Rolands that he did not receive DNA samples from his colleague, Marci Margritier, until shortly after February 15, 2008, the date Denison's body was discovered. 05/21/2010 TT at 2706. Despite this glaring inconsistency, trial counsel failed to use the same to impeach state witnesses, including Rolands and Margritier, and call into question the reliability of the DNA tests conducted by the WCCL.
26. At the suppression hearing, and also at trial, Romero and Harmon testified that Harmon identified four sperm in a sample recovered from Denison's body. Pretrial Motions, 11/06/2009 Transcript of Proceedings Pretrial Motions at 100-03; 05/21/2010 TT at 2615, 2651-52. Defense counsel Leslie posed no questions to Harmon concerning the DNA samples collected from Denison's body during cross-examination. Id. at 2659-60.
27. Reasonably competent trial counsel would have cross-examined both witnesses concerning Harmon's written reports on the matter, which indicated
Ex. 12 (emphasis added). Notably, the report is silent as to any purported amount of spermatozoa found. Id. The omission is significant as the supposed mere "four spermatozoa found in the perineum/perianal swab" were provided as the primary basis for consuming the swabs in their entirety, which in turn prevented independent testing by Biela. Further, the report is significant as it undermines the testimony of Harmon, who ultimately provided the DNA samples to Rolands for DNA examination. Despite the existence of the above-referenced report, defense counsel Pusich failed to use it to impeach Romero at the November 6, 2009 suppression hearing. Likewise, defense counsel Leslie failed to impeach Harmon with the report at trial.
28. Trial counsel's failure to impeach Harmon was particularly egregious given WCCL analysts' inability at trial to corroborate the low number of sperm purportedly found in the swab. Specifically, on cross-examination, Rolands was asked, "[s]o as a result of your differential, you actually get DNA and you get a sperm fraction; is that right?" Id. at 2709. After noting that was the case, Rolands was asked, "How many? Do you know that?" Id. Rolands responded: "No. I do not know." Id. During cross-examination, Rolands once more reiterated he did not know "how many sperms were on the swab before [he] consumed all of it[.]" Id. at 2745.
29. Official state records provided during the course of pre-trial discovery show that, as early as January 30, 2008, the Reno Police Department suspected the same individual was responsible for the assaults involving victims Emma C., Denison, and an individual identified as Anna P. Ex. 18. This potential link was developed following DNA tests by the WCCL of items of clothing obtained from Anna P. Id.; see also Ex. 21. The Incident Report by the Reno Police Department notes the subject DNA test comprises an "additional possible DNA link" connecting all three assaults. Id.
30. Information pertaining to the potential DNA link and details of Anna P.'s attempted rape were disseminated to the public in the context of the larger investigation also concerning Emma C. and Denison. Ex. 19; see also Ex. 20. Further, the particulars of Anna P.'s assault were cited, along with facts pertaining to the Emma C. and Denison investigation, in support of applications for search warrants executed by the Reno Police Department. Ex.22. In fact, as late as November of 2008, detectives with Reno police were falsely claiming, while interviewing potential witnesses, that there was a DNA match linking the Anna P., Emma C., and Denison assaults. See Ex. 35 at 22, ¶¶30-39. Moreover, on December 5, 2008, the State of Nevada charged Biela via an Amended Criminal Complaint with Battery with Intent to Commit Sexual Assault upon the person of Anna P. Ex. 23. Ultimately, the State did not pursue any charges against Biela respecting Anna P.'s assault. See Ex. 24.
31. The State engaged in the aforementioned actions based on the DNA test conducted on January 28, 2008 by Rolands. See Ex. 21. However, as evidenced by Rolands' executed report, identified as Laboratory Number L0499-08-0, the January 28, 2008 test did not establish any link whatsoever nor did it inculpate Biela. See id. As noted in the document, the results showed "two sources of DNA." Id. The test further showed a minor DNA profile containing too low a level of DNA for the WCCL to interpret. Id. Irrespective, no data from the test—or any other information gathered by the Reno Police Department-demonstrated a "possible DNA link" connecting Anna P.'s assault with the assaults committed upon Emma C. and Denison. Nevertheless, Romero and Rolands—the same individuals ultimately charged with conducting the DNA tests in the Emma C. and Denison cases—asserted "a potential link" between all three incidents. See Ex. 18. Based on the faulty or false analysis conducted by Rolands and Romero, the media reported the three matters as linked, the Reno Police Department investigated all three cases as related and sought search warrants, and the Washoe County District Attorney charged Biela with Anna P.'s attempted rape. See Exs. 18-23.
32. At trial, WCCL analysts Dr. Smyth-Roam and Rolands, testified to their laboratories' standards and the minimum levels of DNA needed to validate and report DNA tests. Smyth-Roam noted, "we may get results that are too low below the thresholds — the validated thresholds that we have in our laboratory, to be confident that a result is a real result, and we will not interpret those and we will not draw any conclusions." 05/13/2010 TT at 1088. Likewise, Rolands, during his testimony, agreed the WCCL has "thresholds that [it] has to meet in order to make a report." 05/21/2010 TT at 2673 (emphasis added). Rolands added, "we have a reporting threshold on how high the actual amount of DNA, the peaks that we obtain. . . if they go past that threshold then we will report out statistics. . . ." Id. He explained if the laboratory "start[s] reporting things that are below th[e] [threshold] level, then the lab could lose its accreditation[ ]." Id. at 2674. Despite the above-referenced standards and protocols, Rolands and Romero reported and published the Anna P. DNA results-which did not meet the lab's minimum threshold-as providing a link to results obtained in the Emma C. and Denison DNA examinations.
33. The WCCL has policies in place to review analysts' work. In addition, it has a policy for correction action. See Ex. 25. In light of the aforementioned false match of DNA test results, Rolands should have completed new proficiency tests per Section 14.1.7 of the Washoe County Forensic Science Division Corrective Action standards. See Ex. 25. The same standards should have precluded Rolands and/or Romero from conducting or supervising any further examinations in the Emma C. and Denison investigations. See Id.
34. Trial counsel was ineffective at trial in failing to impeach Rolands with his breach of standard practices as set forth in the WCCL's protocols. Trial counsel was likewise ineffective in failing to call into question the State's DNA results with the false report and match of Anna P's DNA tests with DNA test results conducted in the Denison and Emma C. investigations. Finally, trial counsel was ineffective in failing to exclude or suppress DNA evidence obtained during the course of the Emma C. and Denison investigations in light of WCCL's false match and report and its corrective action protocol.
35. As detailed above, Rolands indicated that for "West Door Handle #3 swab. . . [t]here is no swab remaining, only the stick. There is no extract remaining. All has been consumed." Id. (emphasis added). On numerous occasions throughout pre-trial proceedings the State indicated the basis for the full consumption of DNA samples was to ensure they could obtain a full DNA profile from swabs, which contained limited genetic material. At trial, however, Rolands characterized the amount of DNA the State was able to retrieve from the west door handle quite differently. At trial, Rolands noted, on several, occasions "[t]he extract had a lot of DNA in it." 05/21/2010 TT at 2742. Rolands further indicated the substantial amount of DNA had been "saved." Id.; see also id. at 2743-44. During re-direct, Rolands reiterated, as a matter of standard practice, he maintained DNA extract "for people to test later." 05/24/2010 TT at 2811.
36. During re-cross examination, Rolands was asked, "Is it your testimony that there is extract remaining for all the samples that you ran tests on?" Rolands responded, "That there was — there was extract remaining at the time when the tests were performed. There was liquid in those tubes." Id. at 2825. Rolands conceded during subsequent re-cross that no extract remained for some swabs, including swab number 3 obtained from the west door handle. However, rather than admitting he had consumed the same, Rolands noted he had only been alerted to the lack of consumption subsequent to his testing during an inspection of the samples. Id. at 2827. Rather than impeach him with the above-referenced April 10, 2009 e-mail, trial, Ex. 3, counsel allowed Rolands to disclaim his own consumption of DNA samples and attribute it to evaporation. See 05/21/2010 TT at 2745. Trial counsel made matters worse during closing by reinforcing that false narrative. Trial counsel noted that evaporation "very well may be the case" for the lack of extract, noting that evaporation is a "natural thing that happens." 05/26/2010 TT at 3346-47.
37. Contrary to Rolands' misrepresentations, which trial counsel readily accepted, evaporation did not explain the lack of DNA extract for swab number 3. Rather, as evidenced by Sattler's April 10, 2009 e-mail, Rolands' consumption of that sample explained Biela's inability to conduct independent re-testing. The jury, however, was never presented with that version of events. Instead, the jury was led to believe that evaporation was to blame for consumption of that specific sample. Trial counsel ought to have impeached Rolands on this issue.
38. Detective David P. Jenkins testified twice at trial: first on May 5, 2010, 05/13/2010 TT at 788-891, and again on May 19, 2010, 05/19/2010 TT at 2000-2193. During his May 5, 2010 testimony, Jenkins noted he first directed the WCCL to compare DNA samples obtained from Emma C. with those obtained from Denison on January 25, 2008, after meeting with Emma C. 05/13/2010 TT at 793. However, during his May 19, 2010 trial testimony, Jenkins noted he had met Emma C. on January 25, 2008 after being alerted to "potential [DNA] linkage" between the two cases. 05/19/2010 TT at 2046. Specifically, Jenkins noted on January 25 he was contacted by DNA analyst Rolands and "received the potential linkage." Id. He further noted that he requested to meet with Emma C. on January 25, 2008 "after making that forensic link." Id. When asked what he meant by "forensic link," Jenkins explained: "The similarities between the Y-STR profile developed from the unidentified suspect on Emma C.'s person to the Y-STR profile developed on the doorknob at the back of 1395 Mackay Court." Id. at 2047.
39. Trial counsel's failure to impeach Jenkins regarding his inconsistent testimony and investigate the timeline within which the State examined DNA samples and compared them to one another comprised ineffective assistance of trial counsel. The State's investigation was rife was inconsistencies regarding when DNA samples were tested by the WCCL. Despite the glaring inconsistencies, trial counsel failed to use the same to impeach state witnesses and call into question the reliability of the DNA tests conducted by the WCCL.
40. During closing statements, Sattler repeated on numerous occasions that Biela's sperm had been found "inside" or "in" Denison's body, despite evidence to the contrary. For example, Sattler noted:
05/26/2010 TT at 3393.
Id. at 3403.
Id. at 3408.
Id.
Id. at 3412.
41. Contrary to Sattler's statements, Biela's sperm or DNA was never found inside Denison's body. Per the State's case-in-chief, Biela's DNA was found on Denison's perineum/perianal. 05/21/2010 TT at 2651-52. According to WCCL analyst Suzanne Harmon's trial testimony, the perineum/perianal area is located "between the vaginal opening and anal opening, the rectal area would be the perineum, and perianal, then, would be around the rectum." Id. at 2652. Trial counsel's failure to object to Sattler's misrepresentation of the State's evidence allowed the deputy district attorney to repeat the above-referenced statements ad nauseam to the jury during closing statements. Sattler willfully misrepresented the evidence to inflame the jury by suggesting a criminal act unsupported by the evidence at trial.
42. As discussed in detail above, during closing statements, Sattler argued Biela's DNA expert Dr. Miller had never attempted to conduct an independent test of the DNA samples collected by the State. 05/26/2010 TT at 3398. Contrary to Sattler's statements, Dr. Miller did attempt to test the empty vials. 05/12/2010 TT at 562; 05/24/2010 TT at 3023-24, 3098; 07/13/2016 Transcript of Proceedings Volume III — Morning Session — Hearing on Post-Conviction Relief at 23, 26, 44.
43. There was no valid strategic reason for trial counsel's failure to object to Sattler's misrepresentations regarding Biela's efforts to conduct independent tests. Here, tests were conducted and were only unsuccessful due to the State's consumption of both DNA swabs and extract. Trial counsel's deficient performance allowed the State to mislead the jury into believing no independent tests had been attempted on the DNA evidence collected and produced by the State. Trial counsel's failure to object to Sattler's misrepresentations and to clear the record before the jury comprised ineffective assistance of counsel.
44. At trial, WCCL analyst Suzanne Harmon testified that, on February 15, 2008, she reported to the field where Denison's body had been found. 05/21/2010 TT at 2641. She testified there were "numerous people" at the scene, including WCCL employees Romero, Ruvalcaba, and Rolands. Id. at 2640. Harmon indicated that WCCL analysts are only permitted to attend crime scenes "[o]n occasion" and noted this was the "third body I had been to." Id.
45. At trial, Harmon further testified that the only DNA swabs collected from the body at the scene were buccal swabs collected by Ellen Clark, Chief Medical Examiner for Washoe County. Id. at 2642. She noted the buccal swabs were collected to obtain a "DNA reference standard" and thus identify the body. Id. Harmon testified she was "concern[ed] about the movement of the body" as it could result in "evidence loss." Id. at 2643. Thus, at the time, she "hoped" that Dr. Clark would swab other areas of Denison's body at the scene. Id. at 2644. She explained, "After the body was removed. . . I was — there is concern that there could have been drainage that some evidence could be lost." Id. Harmon testified that, despite her concerns, the swabs were eventually collected at the medical examiner's office by investigator Marci Margritier. Id.
46. Harmon further testified the swabs were collected after hours and that she did not collect the same from the "evidence section" as is customary, but instead "received the[m] directly from Margritier." Id. at 2645. Harmon noted the WCCL has "procedures in place where we can receive evidence directly from individuals, our crime scene investigators," but failed to cite those procedures or provide any further specifics. Id. at 2645. During cross-examination, trial counsel failed to follow up on the subject. See Id. at 2659-61; 05/24/2010 TT at 2980-94.
47. Chief Medical Examiner Clark also testified regarding the collection of evidence at the field where Denison was found. She, however, could not recall "whether or not swabs were prepared at the scene." 05/18/2010 TT at 1890. She further noted that "[i]f they were [they] would have been done by Ms. Harmon and by [herself]." Id. She testified she collected swabs at the morgue and gave the same to Marci Magritier. Id. at 1891.
48. Forensic investigator Marci Margritier testified to observing the swabbing of Denison's body and receiving the swabs from Clark at the morgue. Id. at 1920-21. Margritier testified the standard course following receipt of DNA evidence is to book the same in the "evidence section to await any future analysis that might be requested." Id. at 1921. She further noted that until booked into evidence, the swabs would "stay in her custody and [ ]are generally secured in [the] garage area until they can actually be properly packaged, assigned a barcode number, and actually entered into the evidence system." Id. She concluded there was nothing "unusual that occurred from the time [she] collected the swabs and booked them into evidence." Id at 1923. Margritier's testimony, however, was belied by Harmon's statements at trial. Harmon testified she received the DNA swabs on February 15, 2008 after hours, immediately after the same were obtained by Clark and transferred to Margritier. 05/21/2010 TT at 2644. In this case, the evidence was not booked in the evidence section or subjected to the deliberate process Margritier described during her testimony. Rather, the swabs were rushed to Harmon for immediate testing. Margritier's hasty handling of the evidence conformed with the rushed nature with which the investigation was conducted on February 15, 2008.
49. Trial counsel were ineffective for failing to question Clark or Harmon regarding the failure to collect swabs at the scene, as Harmon indicated should have occurred. Trial counsel were likewise ineffective for failing to question Margritier or Harmon regarding WCCL and the forensic examiner's office breach of protocol with respect to the collection and transfer of evidence from the forensic examiner's office to the WCCL laboratory.
50. At trial, Clark testified she performed an autopsy on Denison's body on February 15, 2008 and concluded Denison's death was due to asphyxia due to strangulation by ligature. 05/18/2010 TT at 1894, 1909. Clark further explained she examined the women's underwear found underneath Denison's body and determined the "configuration, and size of the ligature mark would be consistent with the elastic strap on the panties or the thong underwear." Id. at 1915. During cross-examination, trial counsel failed to question Clark regarding the cause of death and, particularly, the involvement of women's underwear in the cause of death. See id. at 1916-17.
51. Trial counsel's ineffective performance at trial is contrasted by her cross-examination of Clark at the preliminary hearing held on December 11, 2008. At the same, in response to trial counsel's questions, Clark testified that, although she could not "rule [it] out," she could not say with a "certain degree of medical certainty" that strangulation occurred with the women's underwear found underneath Denison's body. 12/11/2008 Preliminary Examination Volume II at 78. She noted it was also possible a "t-shirt could have been the ligature." Id.
52. Trial counsel's ineffective cross-examination at trial allowed the prosecutor to make numerous inflammatory and unfounded statements during closing argument. Sattler made the follow representations:
05/26/2010 TT at 3313
Id. at 3315.
Id. at 3336.
Id. at 3409-10.
Id. at 3417.
Id.
Id. at 3315.
53. The State claimed women's underwear was used to asphyxiate Denison to both inflame the jury's passions by emphasizing Biela's purported perversion with women's underwear and to argue intent to kill. Trial counsel was ineffective in failing to question and impeach Clark with her preliminary hearing statements noting she could not state with certainty women's underwear was employed to asphyxiate Denison. Trial counsel's deficient performance, in turn, allowed Sattler to make the above-referenced, highly inflammatory and prejudicial, representations to the jury during closing statements.
54. At trial, the State discussed "the concept of the prosecutor's fallacy" with DNA analyst Rolands. 05/21/2010 TT at 2722. The prosecutor's fallacy, as explained by Rolands, states that statistics derived from DNA tests do not "assess guilt." Id. Rolands further expressed understanding by noting he was "not saying [Biela] was guilty just because of those statistics." Id. He further explained he was not "telling the jury that the defendant is guilty simply because of those [DNA statistics]. . . ." purportedly linking Biela to the assaults upon Emma C. and Denison. Id.
55. Despite the above-exchange, Rolands opined about Biela's purported guilt multiple times during direct and re-direct examination. For example, during re-direct, Sattler engaged in the following exchange with Rolands:
05/24/2010 TT at 2797. Trial counsel failed to object during the above-referenced exchange. By failing to object, trial counsel allowed Sattler to impermissibly elicit testimony from an expert witness regarding the ultimate issue of Biela's guilt.
56. Following the above-exchange, Sattler disingenuously attempted to elicit further testimony from Rolands that the expert was not testifying to "whether or not the defendant committed any crime whatsoever." Id. at 2802. However, shortly thereafter, Sattler once more elicited testimony as to Biela's guilt from Rolands:
Id. at 2808-09. Sattler's question whether Rolands was concerned about using Biela's son's (Josh) DNA sample to match the same with DNA profiles obtained from the victims goes directly to the issue of guilt. Whether Biela has an identical twin with identical DNA or not had no effect upon the purported accuracy of the DNA match but did reflect upon the remainder of the State's evidence against Biela.
57. DNA samples retrieved from Emma C. and Denison would have matched the DNA sample provided by Josh irrespective of the existence of a hypothetical identical twin. There is no reason why Rolands would have been concerned about Biela having an identical twin during testing of Josh's DNA as it was not his responsibility to determine whether it was Biela or a theoretical identical twin's DNA that had been found in the victims' bodies.
58. Contrary to Sattler's suggestions, Rolands was not concerned with such a hypothetical scenario as evidenced by the fact he only found out Biela did not have an identical twin brother approximately three days prior to trial when defense counsel provided the State with Biela's birth certificate. See 05/21/2010 TT at 2718. Nevertheless, by eliciting the above testimony, Sattler in essence got Rolands to proclaim he was "not concerned" with the remainder of the State's evidence purportedly inculpating Biela.
59. Subsequent questions as who "commit[ed] the crimes" or was "involved" in crimes were likewise patently meant to elicit testimony as to the ultimate issue of guilt from an expert witness. As a DNA expert, Rolands' concerns as to who committed the crimes were irrelevant and inadmissible. By stating Josh did not commit the crimes, Rolands in essence and for all practical purposes commented on Biela's guilt.
60. Trial counsel was ineffective for failing to object to the above-referenced exchanges between Sattler and Rolands. As an expert DNA witness, Rolands' testimony should have been limited to comparing data obtained from the various tests conducted by the WCCL, rather than opine as to who "commit[ed] the crimes" in question. There was no valid strategic reason for trial counsel to allow an expert witness to directly state it was Biela who was responsible for the subject crimes.
61. At trial, evidence was presented that, at the time of Emma C's assault, Biela owned a 2006 Toyota Tacoma. 05/13/2010 TT at 808-10. The State presented additional evidence regarding Emma C.'s description of the vehicle, as relayed to Jenkins during his investigation. Jenkins testified that, upon first interviewing Emma C., he received a description of the vehicle purportedly used by Emma C.'s attacker. Id. at 801. Based on that description, Jenkins met with automotive expert, Sam Metz, and "provided him with the information that [Jenkins] had obtained" from Emma C. Id. at 818. Metz, in turn, prepared a report outlining his conclusions regarding the car likely used by Emma C.'s attacker. Metz's report was attached as Exhibit 1 to the State's April 19, 2010 Notice of Expert filed with the trial court. 04/19/2010 Notice of Expert Witness Pursuant to NRS 174.234(2). The report notes:
Ex. 29 (emphasis added). The report goes on to note "[t]he 2001-2004 Tacoma seems to have the best fit[,]" but explains the head lamp described by Emma C. is inconsistent with the Tacoma model. Id. As evidenced by Ex. 30, the Toyota Tacoma vehicle model went through major changes between the year 2004 and 2005. For example, the pre-2004 model was a compact truck whereas model years 2005 and beyond comprise medium sized trucks. See Ex. 30. In other words, the 2004 and 2006 Tacoma models are substantially different in various respects, including length and height size.
62. At trial, despite the above-referenced conclusions drawn by Reno police and its experts, Jenkins falsely claimed that-based on Metz's conclusions-the Reno police department determined the suspect drove "a late model 2006 to 2008 4-wheel drive Toyota Tacoma extended-cab pickup." 05/13/2010 TT at 819. Detective Wygnanski likewise misrepresented the investigation's findings regarding the sought vehicle by stating "[he] knew all along that [Biela] had owned a truck identical to the truck in make and model that [the Reno Police Department] [was] looking for in th[e] case[.]" 05/21/2010 TT at 2574-75.
63. Jenkins and Wygnanski were permitted to falsely claim Reno police, through interviews of Emma C. and discussions with Metz, were able to identify the exact make and model of the vehicle owned by Biela at the time of the assault. However, as Metz's conclusions show, the Reno Police Department's conclusions were far more inexact. Still, by failing to impeach Jenkins and Wygnanski with Metz's report, trial counsel allowed the detectives to both falsely vouch for the Reno Police Department's investigation and witness Emma C.'s description of the vehicle driven by her assailant. In addition, trial counsel allowed for the State to mislead the jury regarding the description provided by Emma C. following her attack in December of 2007.
64. At trial, Detective Jenkins testified he interviewed Emma C. in Taiwan on March 9, 2008, and obtained a description of her attacker's vehicle. 05/13/2010 TT at 797. Jenkins testified he then met with automotive expert, Sam Metz, and "provided him with the information that [he] had obtained" from her. Id. at 818. Jenkins noted that, based on the description, Metz provided him with the vehicle "make and model" Emma C.'s attacker was likely driving. Id. at 819. Deputy District Attorney Sattler asked Jenkins, "Basically, what was it that you were looking for as far as the vehicle goes?" Jenkins responded, "A late model 2006 to 2008 4-wheel drive Toyota Tacoma extended-cab pickup." Id. Trial counsel did not object to the hearsay testimony. The State introduced evidence that Biela had owned a 2006 Toyota Tacoma at the time of crimes in question. Id. at 808-10.
65. Trial counsel was ineffective for failing to object to the testimonial hearsay concerning his vehicle elicited by the State from Jenkins. By failing to object, trial counsel denied Biela his Sixth Amendment right to confront and cross-examine witnesses, i.e., automotive expert Sam Metz. Instead, trial counsel allowed unreliable and inaccurate hearsay testimony to be elicited from Jenkins. As detailed above, Metz did not inform Jenkins the description matched 2006 Toyota Tacoma. See Ex. 29. Rather, Metz, at best, informed Jenkins that "[t]he 2001-2004 Tacoma seems to have the best fit[,]" while noting some inconsistencies between those vehicles and the description provided by Emma C. Id. The jury was not made aware Reno police, during the investigation of Denison's murder, was in fact looking for a distinct car than that owned by Biela. Instead, the State was allowed to misrepresent Metz's statements regarding the vehicle that Emma C. and Denison's attacker likely drove to match the vehicle owned by Biela in December of 2007 and January of 2008.
66. On November 25, 2008, Detective Jenkins executed an Affidavit in Support of Complaint and Warrant of Arrest. Ex. 31. The same is sworn "under penalty of perjury." Id. In the document, Jenkins falsely claims:
Id. at 5, ¶¶18-23.
67. As noted above, automotive expert Sam Metz did not inform Jenkins the description matched a 2006 Toyota Tacoma. See Ex. 29. Rather, Metz, at best, informed Jenkins that "[t]he 2001-2004 Tacoma seems to have the best fit[,]" while noting some inconsistencies between those vehicles and the description provided by Emma C. Id.
68. Despite Jenkins' misrepresentation, trial counsel failed to impeach the Reno detective—and critical state witness—with Metz's report and his sworn affidavit at trial. Instead, Jenkins was allowed to reiterate the misrepresentation the Reno Police Department—prior to ascertaining the vehicle drove by Biela at the time of Emma C.'s assault—had narrowed the make and model of the suspect vehicle to a "2006 to 2008 4-wheel drive Toyota Tacoma extended-cab pickup." 05/13/2010 TT at 819.
69. Had trial counsel acted competently and impeached Jenkins, the jury would have learned Jenkins had made false representations under penalty of perjury to a judicial officer during the course of the investigation and thus called into serious question the detective's credibility. There was no valid strategic reason for trial counsel not to impeach such a critical witness for the State.
70. Shortly after Biela's arrest, Reno police Detective Ron Chalmers interviewed a number of Biela's former co-workers, including Tyler Marshall on December 1, 2008. See Ex. 32. During that interview, Chalmers discussed Reno police's investigation with Marshall. Id. Chalmers characterized Emma C.'s description of her assailant as "vague." Id. Chalmers noted, "Most of our information given the. . . bits and pieces, the vehicle description we had, the bits and pieces description of him that we had, came from her." Id.
71. When Chalmers interviewed former co-worker Tom Grundy, he once more characterized Emma C.'s description of her assailant and his car as vague and limited. Referring to Emma C.'s description, he noted: "And so she-that's why our description at the time, it was frustrating, was so limited of the vehicle." Ex. 33.
72. At trial, Chalmers testified twice regarding his investigation. See 05/21/2010 TT at 2492-2500, 2536-37. Despite the above-described characterizations, calling into question Emma C.'s statements to Reno police and the identification of the vehicle used by her assailant, trial counsel elected not to cross-examine Chalmers. See id. at 2501, 2537. Trial counsel's defective performance allowed the State to mischaracterize the nature of Emma C.'s statements to police. For example, during closing arguments, Deputy District Attorney Sattler noted:
05/25/2010 TT at 3304-05. Sattler further argued:
Id. at 3332. Sattler was able to misrepresent the accuracy and detailed nature of Emma C.'s description only on account of trial counsel's failure to properly and competently cross-examine and impeach Reno police detectives with their prior characterizations of Emma C.'s statements.
73. Shortly before Biela's arrest, Detective Chalmers interviewed former co-workers of Biela. During these interviews, and while seeking to gather evidence against Biela, Chalmers falsely claimed DNA tests conducted by Washoe County law enforcement linked the Anna P., Denison, and Emma C. assaults.
74. On November 26, 2008, Chalmers interviewed John Latham, Biela's former boss. See Exs. 34, 35. Chalmers stated to Latham: "He's our guy," explaining that "[Biela's] DNA one hundred percent matches." Ex. 34 at 2, ¶¶7-12. Chalmers then represented that the DNA evidence obtained linked Biela to a November 2007 assault, referring to the attempted rape of Anna P. Ex. 35 at 22, ¶¶23-24. He claimed law enforcement had been "able to get DNA evidence from an article of [Anna P.'s] clothing, which ultimately matched" the DNA collected in the Emma C. and Denison investigations. Id. at 22, ¶35-42. Despite initially charging Biela with the crime, the State ultimately did not pursue Anna P.'s attempted rape. See Ex. 23.
75. Contrary to Chalmers' statements, no such evidence existed. As evidenced by Rolands' reports, DNA tests conducted by the State did not establish any link whatsoever between Anna P.'s assault, much less inculpate Biela. See Ex. 21. As noted in the document, the results showed "two sources of DNA." Id. At most, the test showed a minor DNA profile containing too low a level of DNA for the WCCL to interpret. Id. Irrespective, no data from the test—or any other information gathered by the Reno Police Department—demonstrated a "possible DNA link" connecting Anna P.'s assault with the assaults committed upon Emma C. and Denison.
76. Latham testified for the State at Biela's trial. 05/21/2010 TT at 2501-36. During cross-examination, trial counsel failed to ask Latham about his prior encounters with Reno police and Chalmers, during which the latter individual sought to convince Latham that Biela was the individual who had assaulted four different area women. See id. at 2523-27.
77. In addition to Latham, Chalmers also interview Jason Jones on November 26, 2008. See Ex. 36. As with Latham, Chalmers sought to influence Jones by referencing DNA evidence. He noted: "As of six o'clock this morning, the crime lab called us and told us with scientific certainty his DNA one hundred percent matches the DNA from three different cases[,]" referring to the Denison, Emma C., and Anna P. matters. Id. (emphasis added). Chalmers noted Jones should not "hold[ ] out hope that maybe there was some kind of a mistake." Id.
78. Jones also testified for the State at trial. See 05/13/2010 TT at 955-69. As was the case with Latham, trial counsel did not inquire into Jones' interactions with Chalmers.
79. Chalmers testified twice regarding his investigation. See 05/21/2010 TT at 2492-2500, 2536-37. Trial counsel likewise failed to cross-examine Chalmers regarding his interactions with Latham or Jones. More specifically, trial counsel failed to impeach Chalmers with his false representations to both witnesses regarding the DNA evidence available to the State, which purportedly linked three assaults of young, area women. In fact, trial counsel did not pose any questions while Chalmers was on the witness stand. See id. at 2501, 2537.
80. Trial counsel was ineffective for failing to impeach Chalmers with his misrepresentations to critical state witnesses during the course of his investigation. As described above, Chalmers sought to influence and sway state witnesses by falsely claiming Biela's DNA had been found on three victims.
81. At trial, the State called Stephen Shaw, a trace evidence examiner with the Federal Bureau of Investigation Laboratory, as an expert witness. 05/20/2010 TT at 2237. The trial court recognized Shaw as an expert in the field of "hairs and fibers." Id. at 2241. Defense counsel did not object. Id.
82. Shaw testified that, as part of his examination of fibers, he first examines samples microscopically side-by-side and determines whether the two are "not consistent with originating from the same source." Id. at 2243. If they are consistent, he then further compares the samples through other mechanisms, including polarized light microscopy, fluorescence microscopy, microspectrophotometry, and infrared spectroscopy. Id. at 2243-44. Following his explanation of the various mechanisms employed to compare samples, Shaw noted:
Id. at 2245. Shaw then noted he had received debris from socks recovered from Denison's body and a carpet sample from Biela's 2006 Toyota Tacoma and tested fibers obtained from both. Id. at 2246-47. Further, despite the above-referenced assertion that "fibers are not a means of positive identification," Shaw testified his first examination process, light microscopy, demonstrated "the fibers were the same." Id. at 2245, 2252. Trial counsel did not object or move to strike the statement from the record. See id. Shaw went on to share his conclusions that, based on the above-referenced exams, the fiber were "consistent with originating from the same source. . . ." Id. at 2252. Despite Shaw's statement being belied by his earlier testimony, trial counsel failed to object. See id. Shaw subsequently qualified his testimony by clarifying he could not say the fiber retrieved from Denison's sock came from Biela's truck because "fibers are mass produced[,]" but was able to say the "two items match." Id. at 2252. He added he could not say "it's [Biela's truck], that specific truck" to which Sattler added: "But it certainly is another piece to the puzzle, isn't it." Id. 2253.
83. Trial counsel was ineffective for failing to object and move to strike Shaw's testimony as speculative and irrelevant. Shaw conceded "fibers are not a means of positive identification." Id. at 2245. Shaw also noted he could only testify to whether fibers retrieved from Dennison's were consistent with "mass produced fibers." Id. at 2252. Shaw further conceded that the amount of carpets possessed by the general public that matched the tested carpet could "very well be numerous." Id. at 2254. Shaw established the irrelevant nature of his own expert testimony by conceding that the carpet he tested was mass produced and that he could not match fibers as having originated from the same, specific source. Still, defense counsel failed to object to the testimony as more prejudicial than probative.
84. Trial counsel was also ineffective for failing to object and move to strike Shaw's testimony that "the fibers were the same" and "consistent with originating from the same source. . . ." Id. at 2252. Semantics aside, Shaw's statements in essence sought to or had the effect of conveying a single conclusion: the fibers retrieved from Denison's socks came from Biela's truck. However, per Shaw's testimony, his field of expertise does not enable the matching of fibers to a source of origin. See id at 2245. Thus, Shaw's statements were wholly speculative and would have been deemed irrelevant and inadmissible had trial counsel acted competently and objected or moved to strike the same.
85. Trial counsel was also ineffective by failing to elicit testimony from Shaw regarding similar tests conducted upon evidence retrieved from Emma C. See Ex. 39. Reports prepared by Shaw demonstrate he compared fibers obtained from Emma C.'s socks with fibers obtained from Biela's vehicle. See id. Shaw's test, however, demonstrated "[n]o apparent textile fiber transfers were detected" between both items. Id. at 2. Despite the expert being privy to exculpatory evidence indicating Emma C. was not a passenger in Biela's vehicle on the night she was assaulted, trial counsel failed to elicit the subject testimony from Shaw during cross-examination.
86. At trial, K.T. Hunter testified she was with Denison during the hours preceding her disappearance, the night of January 19 and early morning hours of January 20, 2008. 05/17/2010 TT at 1519-20. She testified that, on the night of January 19, she drove herself and Denison to the Sands Hotel and Casino for a social event. Id. at 1535. During cross-examination, trial counsel did not ask the make or model of the vehicle K.T. Hunter and Denison drove to the Sands. See id. at 1585. Had trial counsel elicited that information, K.T. Hunter would have testified she drove her parents' "Toyota Tacoma pick-up truck" as she reported to Reno police investigators on January 20, 2008. See Ex. 40. Reasonably competent counsel would have used evidence that Hunter drove Dennison in a Toyota Tacoma to undermine Shaw's testimony that fibers retrieved from Denison's socks matched a carpet sample from Biela's 2006 Toyota Tacoma. Trial counsel's failure was particularly prejudicial because, during closing arguments, Deputy District Attorney Sattler argued the matching fibers, as testified by Shaw, comprised "the most important piece of evidence from [Biela's] truck." 05/26/2010 TT at 3321.
87. Trial counsel were ineffective in failing to elicit the above-referenced testimony from K.T. Hunter. Had trial counsel inquired as to what car make and model K.T. Hunter used to drive herself and Denison on the night of Denison's disappearance, Biela would have been able to present an alternative source of origin for the fibers found on Denison's body. The testimony would have also served to undermine the testimony of FBI expert Shaw. There was no valid strategic reason for trial counsel not to present such critical information to the jury.
88. Emma C. testified she was assaulted on December 16, 2007, shortly after 2:00 a.m. 05/12/2010 TT at 584. She described being abducted from the parking lot of her home, located across the street from the University of Nevada, Reno, and then sexually assaulted. Id. at 575.
89. At trial, Detective Jenkins testified regarding Biela's cell phone usage on the night of December 16, 2007. 05/13/2010 TT at 831-33. He noted Biela's telephone records indicated "cell phone usage in the hours immediately preceding the attack on Emma C. . . ." Id. at 832. He characterized the usage as having occurred "in the early morning hours" of December 16, 2007 and in the "vicinity or area of town" where Emma C. resided and was abducted. Id. Trial counsel objected to the testimony on hearsay grounds. Id. at 831-32. The trial court allowed the testimony. Id. at 833. Jenkins specified Biela's phone usage had occurred "very early in the morning and certainly not 3 o'clock, but. . . after 10 p.m., until 1:00 or 2:00 in the morning. Id. Jenkins conceded he was testifying from "rough memory." Id. He further noted that the usage concerned telephone calls to an individual named Karl Jager. Id. at 834.
90. Contrary to Jenkins' testimony, Biela's telephone records-obtained in anticipation of trial-show the referenced calls occurred fifteen and nineteen minutes after midnight. See Ex. 41. The telephone records further show that both calls registered off of cell phone tower 239. See id. As was subsequently established by testimony from state expert Mike Metcalf (05/20/2010 TT at 2235) and Reno Officer Joe Robinson (05/20/2010 TT at 2216-17), the cell phone tower corresponding to Emma C.'s parking lot is not tower 239, but rather tower 103, located at 2605 Comstock Drive.
91. Despite the above-referenced inconsistent and exculpatory evidence, trial counsel failed to impeach Jenkins with Biela's telephone records. As noted above, the telephone records show that, near the time of Emma C.'s assault, Biela was nowhere near Emma C.'s home. See Ex. 41. The telephone records further show that, contrary to Jenkins' testimony, Biela was not "in the vicinity or in the area" of Emma C.'s home around 2:00 a.m. when the assault occurred.
92. During closing arguments, the State argued, "[T]hink about how bizarre it is that he's actually in the U.N.R. area using his phone at 12:09 on December 16th based on the cell phone records, after midnight, he's in that neighborhood, even though he lives out in Spanish Springs, 25, 30 minutes away." 05/26/2010 TT at 3323. Sattler, later added, "The phone records are important because they show that, yes, James Biela had the opportunity to commit the crime. How do we know that? Because we know that was in the area of both offenses when those offenses occurred, Emma's case. . . so the phone records are very important." Id. at 3409. As noted by Sattler, the telephone records were indeed very important. Contrary to Sattler's representations, however, the telephone records did not place Biela at the scene of Emma C.'s abduction on December 16, 2007. Nevertheless, trial counsel failed to use the telephone records to impeach Jenkins and forestall the State's misrepresentations.
93. At trial, the State presented testimony from Verizon Wireless employee Jody Citizen. 05/19/2010 TT at 2138. Citizen testified her company's records indicated Biela had a "cell phone with Verizon Wireless bearing or suggesting that he was assigned to Nevada telephone number area code (775) 750-1054." Id. She further testified those records were forwarded to Reno police. Id. Trial counsel elected not to ask any questions from Citizen. Id. at 2139. The State then presented cell phone tracking testimony from Reno police officer Joe Robinson. 05/20/2010 TT at 2194-2219.
94. Robinson testified that, as part of his investigation, he reviewed telephone records pertaining to cell phone number (775) 750-1054, which the State argued was Biela's cell phone. Id. at 2201. Robinson then testified to Biela's purported use of his cell phone, (775) 750-1054, on January 20, 2008, the date Denison disappeared. Id. at 2215. He noted the Verizon records showed a seven second "Star 86" or "voicemail check" call on January 20th, 2008, at 3:31 a.m. that started and ended on Tower 103, located at 2605 Comstock Drive, Reno, Nevada. Id. at 2216-17. Robinson concluded that, based on the records and the cell phone towers in the area, the phone associated with number (775) 750-1054 was somewhere between 2605 Comstock and 1395 Mackay Court on the above-noted date and time. Id. at 2218. He noted the two locations were "about a mile and a half" apart. Id.
95. Subsequent to Robinson's testimony, the State called Biela's former girlfriend Carleen Harmon to the stand. 05/24/2010 TT at 2861-2879. During cross-examination, trial counsel failed to inquire as to exculpatory prior statements Harmon had made to Reno police regarding Biela's purported cell phone. See id. at 2980-98. Specifically, Harmon had previously told Reno police that phone number (775) 750-1054 was under her account with carrier Verizon. Ex. 43, at 673, ¶¶2-9. More importantly, Harmon told police she had taken the cell phone associated with that account the weekend Denison disappeared and told Biela "his phone was lost." Id. at ¶¶35-41. She explained she had caused the same number to be shut off or suspended, and that she regularly checked the voicemail associated with that number. Id. at ¶¶29-42. Harmon also informed Reno detectives that Biela had opened his own account under his name "not too long ago," although she could not recall when. Id.
96. Due to the above-referenced actions by Harmon, Biela opened his own Verizon Wireless account and received a new phone and number on January 19, 2008. See Ex. 42. Despite transcripts of Harmon's statements to Reno police being readily available, trial counsel failed to elicit the subject information from Harmon during cross-examination. Likewise, trial counsel failed to cross examine Citizen and Robinson regarding the separate phone account held by Biela with Verizon Wireless and referenced by Harmon to Reno police.
97. There was no valid strategic reason for trial counsel to fail to present testimony showing Biela did not have the cell phone associated with number (775) 750-1054 on the day Denison disappeared, that Biela was in fact using a different phone that day, or that Harmon regularly called number (775) 750-1054 to check Biela's voicemails.
98. Trial counsel was also ineffective in failing to object to Robinson's testimony about "[Biela's] use" of cell phone 750-1054. 05/20/2010 TT at 2210. Here, Robinson, at best, was familiar with the data provided in the telephone records obtained from Verizon. However, Robinson had no personal knowledge of Biela's use of the number and, thus, his characterization of the telephone records as showing "Biela's use" was speculative, irrelevant, and inadmissible. The speculative nature of his testimony is further shown by Harmon's statements to Reno police that the number associated with the cell phone was under her account; that she often used Biela's phone; and that she had taken the cell phone and had cancelled service to the number (775) 750-1054 the weekend of January 18, 2008. Trial counsel was also ineffective in failing to elicit the above-referenced information from Harmon, as the same would have provided an alternative explanation for the data contained in the Verizon phone records and interpreted by the State to establish Biela's presence in the vicinity of 1395 Mackay Court around 3:31 a.m. on January 19, 2007.
99. During closing arguments, defense counsel made the following remarks:
05/26/2010 TT at 3373-74. Trial counsel made the above representation despite being privy to information indicating the subject cell-phone, on the night in question, was not only disabled, but not in Biela's possession. Specifically, police reports show Harmon had previously told investigators that phone number (775) 750-1054 was under her account with carrier Verizon, that she had taken the cell phone associated with that account the weekend Denison disappeared, that she had caused the same number to be shut off or suspended, and that she regularly checked the voicemail associated with that number. See Ex. 43, at 1, ¶¶29-42.
100. Trial counsel were ineffective for conceding cell phone records showed Biela's presence in the vicinity of University of Nevada, Reno on January 20, 2008 when trial counsel knew that evidence existed that contradicted that theory, as presented by the State. Trial counsel not only failed to present that evidence, but inexplicably conceded the State's theories concerning Biela's cell phone usage.
101. At trial, the State presented cell phone tracking testimony from Reno police officer Joe Robinson. 05/20/2010 TT at 2194-2219. Robinson testified that, as part of his investigation, he reviewed telephone records pertaining to cell phone number (775) 750-1054, which the State argued was Biela's cell phone. Id. at 2201. During direct testimony, Sattler asked, "And the phone that [Biela] had from October of 2007 all the way through, at least, January 20th of 2008; is that right?" Robinson responded: "That's what I was informed, yes, sir." Id. at 2202.
102. In addition to misrepresenting evidence available to the State, Sattler's leading question called for and elicited hearsay testimony. The State was aware that, as of January 19, 2008, service on the cell phone had been discontinued as a result of Carleen Harmon's actions. See Exs. 43, 44. The State was further aware that, as of January 19, 2008, Biela had opened his own cell phone service account and had obtained a new phone and number. See Exs. 42, 44. Nevertheless, Sattler, through the leading question posed to Robinson, misrepresented the evidence and elicited hearsay testimony. Trial counsel was ineffective for failing to object and move to strike Sattler's question and Robinson's answer.
103. In response to a jury question, Robinson testified he could not remember whether Reno police had been able to obtain and review records for October 22, 2007, the day Amanda C. was assaulted. Id. at 2224. The prosecutor asked Robinson whether it was possible the records for that day had been "purged" by the service provider due to the lapse in time. Id. at 2224. Robinson answered it was possible and noted the October 22, 2007 records had not been requested until November of 2008. Id. at 2224-25. On cross-examination, Robinson conceded there was "no indication that the records that had been requested had been purged." Id. at 2227. Contrary to Sattler's suggestion, the telephone records for October 22, 2007 had not been purged by service provider Verizon. See Ex. 47. In fact, Reno police had subpoenaed and obtained the records from Verizon. See id.
104. Trial counsel were ineffective for failing to rebut Sattler's suggestion the reason the State was not presenting the records or testimony pertaining to their content was because the same had been purged by Verizon. Trial counsel was likewise ineffective for failing to impeach Robinson with the records, which the State had subpoenaed and obtained from Verizon as early as November of 2008. Likewise, trial counsel were ineffective for failing to present testimony from a cell phone tracking expert to show that the October 22, 2007 records conclusively showed Biela was nowhere near the parking lot where Amanda C. was raped on that date. There was no valid strategic reason for trial counsel not to present evidence directly exculpating Biela for Amanda C.'s rape.
105. Throughout his testimony, Detective David Jenkins made numerous statements that comprised expert opinion testimony as to the ultimate issue of James Biela's guilt or innocence. For example, while discussing differences in the purported modus operandi of Amanda C., Emma C., and Denison's attacker, Jenkins testified:
05/19/2010 TT at 2052 (emphasis added). In addition to being speculative, Jenkins' testimony comprised an expert opinion
106. Jenkins provided similar—and at times more egregious—opinion testimony regarding Biela's guilt during other trial passages. In each instance, trial counsel failed to object. For example, at one point, the State asked Jenkins, "[a]nd in a general sense, how did you come to the conclusion that the defendant was the person responsible for the crimes he stands trial on today?" 05/13/2010 TT at 829. Detective Jenkins replied, "[b]ased on my understanding of some developed forensic evidence, which linked the defendant, Biela, through his DNA profile to the offenders." Id. Trial counsel objected only after the detective had provided the above-answer. Id. However, trial counsel did not object based on Jenkins' testimony comprising impermissible expert opinion as to the ultimate issue of guilt, but rather on hearsay grounds, noting that DNA evidence should not come "through this witness." Id. The State responded by noting that it was only attempting to explain why Biela was arrested. Id. Not surprisingly, the trial court held the testimony was admissible to show effect on the listener. Id.
107. Trial counsel failed to object despite the unfair prejudice posed by having an experienced detective make such sweeping, speculative, and conclusory statements. There was no valid strategic reason for trial counsel to allow Jenkins to opine as to Biela's guilt or innocence.
108. At trial, Detective Jenkins testified to various differences pertaining to the conduct of the suspect during the assaults of Amanda C., Emma C., and Denison. 05/19/2010 TT at 2050-52. For example, Jenkins noted how, during Amanda C.'s assault,
109. Jenkins engaged in further speculation when he ascribed to "victimology" the distinct kindness shown by the attacker to Emma C. compared to that shown to Amanda C. Id. at 2051. Jenkins postulated the attacker showed distinct kindness depending on the resistance posed by the victim. However, per the State's case, neither Emma C. nor Amanda C. posed any resistance, which rendered Jenkins' testimony both speculative and irrelevant. Trial counsel only objected when Sattler sought to elicit testimony regarding the assailant's supposed treatment of Denison, pertaining to which no evidence was presented by the State. Id.
110. There was no valid strategic reason for trial counsel not to object to the above-referenced speculative and irrelevant testimony. The State sought to show the existence of a modus operandi through speculative testimony and facts contradicting the existing record. Still, trial counsel did not object or move to strike Jenkins' testimony.
111. The State called Layla Maciel Ramm to testify that she was a friend of Biela's former partner, Carleen Harmon, and witnessed an incident involving Biela that occurred "the first or second week of October of 2008," long after Emma C., Amanda C., or Denison were assaulted. 05/24/2010 TT at 2830-59. Ramm testified that, on the day in question, she met Harmon at a football game at Sparks High School. Id. 2837-38. She noted that Harmon then expressed concern that Biela was "having an affair, that he was cheating on her." Id. at 2837. She explained that, around 6:00 or 7:00 p.m., Biela showed up to the football game to drop off his child Josh. Id. at 2838-39. She then described how, at Harmon's request, she followed Biela in her vehicle from Sparks High School towards an area near the University of Nevada, Reno where Biela "vanished." Id. at 2840, 2843-51. She explained that shortly after Harmon met up with her at Archie's, a restaurant located next to the university. Id. at 2853. Once there, Harmon coincidentally spotted Biela's vehicle in the restaurant's parking lot. Id. Ramm stated that, at Harmon's request, she looked for Biela inside Archie's and The Little Wall, an establishment adjacent to Archie's, but could not find him. Id. at 2855-57.
112. The sole purpose of Ramm's otherwise senseless testimony was to elicit one image in the eyes of the jury: that of Biela prowling the area of University of Nevada, Reno in search of his next victim. Despite the patently unfairly prejudicial, speculative, and wholly improper nature of her testimony, trial counsel did not object or move to strike. Further, trial counsel failed to call witnesses at trial that could have testified to Biela's whereabouts that evening in October of 2008. Specifically, Biela's friends, Shawm Hardiman and Zach Florez, would have testified that Biela was with them on the night in question watching a mixed martial arts fight at Archie's.
113. Hardiman was interviewed by Reno Detective Ron Chalmers regarding Biela's whereabouts on the subject night. See Ex. 48. Hardiman told Chalmers that he had watched a fight with Biela at Archie's sometime in September or October and that Biela had given him a ride home. Id. at 5 of 10. Likewise, Florez provided a consistent explanation to Biela's whereabouts during the penalty phase of trial. See 05/28/2010 TT at 358-61. He noted Biela and him would attend Archie's to watch Ultimate Fighting Champions fights. Id. at 360. He described a specific instance, following Biela's return from Washington State in mid-September of 2008, when they attended Archie's for such a purpose. Id. at 360-61. Despite Hardiman and Florez being able to rebut Ramm's testimony as well as provide alternative, plausible, and innocent explanations for Biela's occasional presence near the university, trial counsel failed to call either witness during guilt phase of trial.
114. Trial counsel's failure allowed the prosecutor to portray Biela as a predator who was "out roaming the [university] area at night." During closing statements, Sattler recounted Ramm's testimony and characterized Biela as follows:
05/26/2010 TT at 3322-23. Trial counsel failed to object to Sattler's inappropriate and prejudicial statements, which had but one sole purpose: appealing to the jurors' fears and emotions by portraying Biela as a "prowl[er]" who would purportedly kill another young woman if not convicted.
115. Trial counsel were ineffective for failing to object to Ramm's testimony as irrelevant and for failing to present witnesses that could have rebutted her testimony as well as Sattler's statements that he prowled the university looking for his next victim.
116. In December of 2008, Biela's former, live-in girlfriend, Carleen Harmon, was interviewed by Detectives Jenkins and Wygnanski regarding their relationship and Biela's whereabouts between October 2007 and January 2008, the period of time during which Amanda C., Emma C., and Denison were assaulted. See Ex. 50. During the interview, the detectives asked Harmon how frequently Biela would leave the home overnight during the fall of 2007. See id. at 15. Harmon noted she could not recall. Id. When asked for a more definitive answer, Harmon said "it didn't happen. . . it wasn't like it happened every month. It would happen, like, once every few months. . . if anything. . . maybe not even that frequently. . . ." Id. at 16.
117. At trial, Harmon provided noticeably inconsistent testimony. She explained Biela and her started "having issues in October 2007" and then explained:
05/24/2010 TT at 2894. During subsequent testimony, Harmon reiterated Biela, between October 2007 and January 2008, left the house numerous times for "days at a time." Id. at 2909, 2911, 2973. Harmon's trial testimony was inconsistent with her statements to Reno police that Biela would only leave the home "once every few months." Ex. 50 at 16. Still, trial counsel failed to impeach Harmon with her prior inconsistent statements.
118. During closing the prosecutor noted: "During the dates of the attacks, he would often be out all night. But those [sic] important because it shows that nobody knows his whereabouts. He's living in his truck. He's just kind of out and about. . . he's just gone, and nobody is accounting for his whereabouts whatsoever, including Ms. Harmon." 05/26/2010 TT at 3333-34.
119. Trial counsel's ineffective cross-examination of Harmon allowed the State to argue Biela was gone for "days at a time" and that those days coincided with the dates Amanda C., Emma C., and Denison were assaulted. Had trial counsel competently and effectively cross-examined Harmon with her prior inconsistent statements, the jury would have concluded that it was more likely than not Biela was at home with his girlfriend and their son when the attacks occurred.
120. At trial, Harmon was asked whether Biela had ever made any comments regarding Denison and the ongoing investigation prior to his arrest. 05/24/2010 TT at 2914. Harmon stated:
Id. at 2914. The prosecutor and Harmon then engaged in the following question and answer:
Id. at 2914-15. Trial counsel were ineffective in failing to cross-examine Harmon with the above-referenced transcript of her December 2, 2008 interview with Reno police. See Ex. 51. As shown by the transcript, upon being interviewed by Reno police, Harmon was asked whether Biela had ever commented on Denison or the investigation. See id. Harmon's sole response was that Biela had noted "they're just making a big deal out of this girl because her parents have money. What about all the other people that got killed and were getting raped around this town. And nobody ever says anything about them, but this girl has money. . . and that's why they talk about her" Id. at 47, ¶¶1-8. Harmon added, "That was the only thing he ever said that stands out in my mind." Id. at 47, ¶¶14-15. Nowhere in the transcript does Harmon relay Biela stated that, if "[Brianna Denison] wasn't hot, that nobody would care." See id. At trial, despite this glaring omission, trial counsel failed to impeach Harmon with the interview transcript.
121. As a result of trial counsel's ineffective assistance, the State was able to emphasize and highlight the purported statement throughout closing argument and Biela's sentencing as evidence of Biela's motive and callousness. In fact, during closing argument, Sattler characterized the comment as "[a]nother insight into [Biela's] mind." 05/26/2010 TT at 3319. There was no valid strategic reason for trial counsel not to impeach Harmon with the transcript of her police interview. Had trial counsel done so, the jury would have learned the more complete and less sinister version of Biela's statements.
122. At trial, Emma C. testified she saw a single child's shoe on the passenger floor board of the vehicle that her attacker used to abduct and assault her. 05/12/2010 TT at 682. She testified the shoe appeared to belong to a child approximately three months old. Id. Emma C. was not able to identify her attacker or, in fact, describe him in any meaningful way. See id. at 688.
123. Prior to trial, Emma C. was interviewed by Detective Jenkins and, through photographs, identified a shoe similar to the one she observed. Harmon testified for the State as well and explained that in March of 2008, she had helped Biela clean out his truck. 05/24/2010 TT at 2925-26. She testified that, in the back seat, she "found a pair of [her son Joshua's] old shoes. . . ." Id. at 2926. She stated she had then thrown the shoes out. Id.
124. Trial counsel interviewed Harmon prior to trial in April of 2010. See Ex. 53. During the interview, trial counsel showed Harmon the picture of the type of shoe identified by Emma C. during her interview with Reno police. Id. Harmon said the shoe was nothing like the shoe she found in Biela's truck in March of 2008. Id. In addition, contrary to Emma C.'s representations, Harmon noted the shoes she had found in Biela's truck were from when her son Joshua was approximately three-years old. Id.
125. Trial counsel were ineffective for failing to elicit testimony from Harmon at trial regarding the types of shoes she found in Biela's truck and their dissimilarity from that shoe described by Emma C. at trial and the shoes depicted in the photograph shown by Reno police to Emma C. prior to trial. Trial counsel were likewise ineffective for failing to introduce the photograph into evidence.
126. Trial counsel were also ineffective for failing to present evidence of Reno police's suggestive comments regarding the presence of a child's shoe in Biela's vehicle during pretrial interviews of John Latham and Harmon. At trial, like Emma C. and Harmon, witness John Latham testified seeing a "small child's shoe" in Biela's pickup truck. 05/21/2010 TT at 2512-13. However, as was the case with Harmon, Latham's statements were the result of suggestive and leading interviewing techniques by Reno police. During Latham's November 26, 2008 interview, Detective Ron Chalmers asked, "Was there. . . in one of the reports we had early on was a baby shoe. . . ." Ex. 54. Latham responded, "You know he had so much stuff in his car. I do remember a child's shoe in the car and. . . a lot of trash." Id. Similarly, in Harmon's case, no mention of a baby shoe was made by Harmon when discussing the content of Biela's car until Reno police suggested the idea. See Ex. 52.
127. At trial, the prosecutor asked Detective Jenkins whether Biela had made any statements about DNA following his arrest and while under custody in the Reno Police Department. 05/19/2010 TT at 2108. Jenkins responded Biela had said, "I told you, I don't believe in that shit." Id.
128. The State's characterization of Biela's statement, presented out of context, was grossly inaccurate and misleading. Biela's statement he didn't "believe in that shit" followed Jenkins and Wygnanski's accusation that Reno police had detected Biela's DNA in "a couple other gals." Ex. 55, at 715, ¶¶31-33. When asked by Wygnanski how Biela could "explain away his DNA on [those two gals]," Biela reiterated: "I told you I don't believe in that shit." Id. at ¶¶42-44. As demonstrated from the transcript of the interrogation, Biela was not referring to DNA evidence generally-as Sattler misled the jury to believe-but rather to the accusation that his DNA was present on the "two gals." See id.
129. Sattler engaged in similar misrepresentations when examining Detective Wygnanski. Sattler asked, "were you present when the defendant referred to all of the evidence that you were talking about just as bullshit." 05/21/2010 TT at 2599-2600. Wygnanski responded, "It was either bullshit or horseshit." Id. Once more, Biela was not claiming he believed DNA evidence, generally speaking, to be "bullshit," but was rebuking the detectives' accusation that his DNA was present on three victims. Id. at 716, ¶¶19-25.
130. Biela denied any wrongdoing upon being interrogated by Reno police on November 25, 2008. Despite the absence of any such admissions of guilt, or perhaps in lieu of them, Sattler mischaracterized Biela's statements as unreasonable challenges to the reliability of DNA testing and blanket denials. Sattler was thus able to mischaracterize denials of guilt to cast Biela as irrational and deceitful. However, Biela never made the attributed statements. Trial counsel, in turn, were ineffective for failing to correct the record. There was no valid strategic reason for trial counsel to allow the jury to be misled into thinking Biela was denying scientific methods widely believed by the public and members of the jury or making blanket denials of all information presented to him by the Reno detectives.
131. As described in detail above, at trial, Detective Jenkins testified that he told Biela the room he was in while being questioned and while meeting with his former girlfriend was video monitored. 05/19/2010 TT at 2090-2115. However, the recording demonstrates Jenkins never provided such a warning. See Ex. 57. In fact, when Biela asked if he was being videotaped, Jenkins stated: "We have the capabilities to do that, I don't think it's working right now." Id. at 3, ¶27. Biela asked again if he was being recorded to which Jenkins responded: "Maybe, maybe, we were having some technical difficulties, they just came in and said the recorder wasn't working right so I don't know if are or not. . . ." Id. at 3, ¶¶31-32. Jenkins added: "And I'm telling you right up front this room is equipped for it and I'm telling you right up front when I tell you they came in a minute ago and said, `Hey the recorder stuff isn't working right, so I don't know if it's working right or not. . . ." Id. at 3, ¶¶40-42.
132. Following Jenkins' direct testimony, the jury submitted question KK, which asked: "is it on video that Detective Jenkins tells James Biela, quote, I think this is being recorded, closing quote, before Carleen comes into the room." Id. at 2125. In response to the jury's question, Jenkins responded, "It is on tape." Id. at 2125. During cross-examination, trial counsel failed to impeach Jenkins with the recording or a transcript of the recording. By misrepresenting Jenkins' statements, the State sought to disingenuously vouch for the fairness of the interrogation process as well as portray Biela's statements as voluntary. However, the video of the interrogation, as well as the transcript of the same, showed Jenkins had intentionally deceived Biela regarding the working status of the recording equipment in the interrogation room. There was no valid strategic reason for trial counsel not to impeach Jenkins with that information, which was readily available at trial.
133. As noted above, both Jenkins and Wygnanski testified regarding their interaction with Biela after his arrest on November 25, 2008. Detective Ron Chalmers and Officer Robinson, also present during the interrogation, testified regarding other matters related to the investigation. See 05/20/2010 TT at 2224; 05/21/2010 TT at 2492-2500, 2536-37. During cross-examination of the above-referenced individuals, trial counsel failed to elicit testimony regarding Biela's intoxicated state during the interrogation.
134. On the drive to the Reno Police Department, Biela informed Jenkins that he had been drinking and, specifically, had consumed six or seven alcoholic beverages earlier in the day. In addition, Biela had consumed two large Monster energy drinks. In fact, Biela was so intoxicated during the interrogation as to compel Chalmers to twice ask whether he was doing "okay" and "all right" and whether there "something wrong with [him]." Ex. 58 at 29. Biela asked Chalmers whether the officer could provide him with some Tylenol. Id. Biela requested "like 30 of them[.]" Id. at 30. Despite Biela's intoxicated state, Jenkins provided him with two Monster energy drinks. See id. When offered a third Monster energy drink, Biela declined, noting "No, my heart will explode." Ex. 58.
135. At trial, Jenkins testified he offered Biela a drink while at the Reno Police Department as a "common courtesy" and to ensure whatever statements Biela made would not be challenged as involuntary. 05/20/2010 TT at 2166. Jenkins, however, omitted any reference to Biela's intoxicated state. He further omitted any mention that he did not just offer a drink, but provided Biela with two large energy Monster drinks, which had a severe and detrimental effect upon Biela's physical and mental state. It was incumbent for trial counsel to present evidence of Biela's intoxication and Reno police's actions in exacerbating his mental and physical difficulties by offering highly caffeinated energy drinks known to increase stress and anxiety.
136. Presenting evidence of Biela's intoxication would have explained his actions and statements before Jenkins, Wygnanski, and Harmon. The State called four Reno police employees to testify who could have described Biela's condition, i.e., Jenkins, Wygnanski, Chalmers, and Robinson. Still, trial counsel failed to effectively cross-examine each and every one of them on the subject issue. There is no valid strategic reason for trial counsel's failure to present testimony and/or evidence regarding Biela's mental state at the time he made incriminating statements to Reno police and his former partner Harmon.
137. At trial, Detective Wygnanski testified regarding his interactions with Biela prior to his arrest while Biela was a mere suspect in the Denison murder investigation. Wygnanski explained he first made contact with Biela by telephone on November 6, 2008. 05/21/2010 TT at 2567. He explained he was following up on a tip from a secret witness and background information he had obtained pertaining to Biela. Id. at 2557-59. He testified they met in person the following day and discussed the Denison investigation. Id. at 2565.
138. Throughout his testimony, Wygnanski made numerous references to his intuition and his "hunches" with regards to Biela's involvement in the crimes then still being investigated. For example, when describing his reaction to the secret witness tip, Wygnanski noted, "My suspicion was pretty heightened. I felt pretty good." Id. at 2558. He added, "This was a pretty good gut feeling." Id. He further noted that, following the tip, he had expressed concerns to Detective Jenkins and Sargeant Lovitt about Biela being "their guy" and stated he wanted to "check it myself." Id. at 2564-65.
139. With respect to his November 6, 2008 phone conversation, Wygnanski explained he found it "very strange" that Biela did not ask why Wygnanski was reaching out. Id. at 2566. He explained that, after hanging up the brief phone call, he "turned to [his] wife and []said, "Do you know something?. . . He never asked me what I was investigating." Id. at 2566. He characterized Biela's actions in that respect as "not normal behavior." Id. Trial counsel did not object to the testimony.
140. Wygnanski's testimony about his intuition and hunches during the investigation, as well as his characterization of Biela's innocuous behavior during the course of a brief phone conversation, were purely speculative and amounted to comments regarding Biela's guilt or innocence. Still, despite the patently inadmissible nature of the testimony, trial counsel failed to object.
141. In the alternative to objecting or moving to strike the above-referenced testimony, trial counsel were ineffective for failing to impeach Wygnanski with his failure to record his conversations with Biela. Wygnanski did not record the November 7, 2008 in person conversation with Biela. See id. at 2571. He explained he thought it "would be better to just capture the report in writing." Id. Wygnanski's basis for failing to record a conversation with an individual who had "heightened" his suspicions and who he had a "pretty good gut feeling" about is absurd. There was no valid strategic reason for trial counsel to not impeach Wygnanski with his failure to record the conversation, particularly in light of the adduced basis for Wygnanski's inaction, which amounted to improper vouching.
142. On November 25, 2008, Detective Jenkins executed an affidavit in support of a "seizure order. . . directing that a sample of saliva from the person of James Michael Biela. . . be taken from his person." Ex. 63 at 6. In the affidavit, Jenkins explains Detective Wygnanski met and discussed the ongoing investigation with Biela on November 7, 2008. Id. at 5. It notes Wygnanski "learned Mr. Biela owned a vehicle which was similar to that developed as a possible suspect vehicle in this investigation." Id. It then falsely claims, "Mr. Biela denied he owned a similar vehicle." Id.
143. Contrary to Jenkins' representations, Biela never denied owning a similar vehicle. As described at trial, Biela agreed to meet with Detective Wygnanski prior to his arrest on November 7, 2008 to answer questions. 05/21/2010 TT at 2565. After meeting at a Wendy's parking lot in Reno, Wygnanski informed Biela he was a suspect in the Denison murder. Id. at 2568. Although their conversation was not recorded, Wygnanski prepared a report reproducing the same. See Ex. 64. During the meeting, Wygnanski asked Biela whether he had "ever owned a Toyota pickup." Id. Biela responded he had, but had traded it for a Chevrolet pickup in June of 2008. Id.
144. Trial counsel were ineffective for failing to impeach Jenkins with his false sworn statement in the November 25, 2008 affidavit, which he executed under penalty of perjury. See Ex. 63. There was no valid strategic reason for not impeaching a witness as critical as Jenkins with perjured statements made to a judicial officer during the course of his investigation.
145. At trial, Emma C. described her assailant as a medium built man with a small belly. 05/12/2010 TT at 638-39. Emma C. agreed with Deputy District Attorney Sattler's assessment that the suspect "was big, but not fat." Id. at 647. She further described Biela's body type at trial as "familiar." Id. at 697.
146. Detective Jenkins testified regarding his January 25, 2008 interview with Emma C. Jenkins noted that, during one such interview, he "used [himself] to have [Emma C.] describe the person's stomach." 05/13/2010 TT at 864. Jenkins noted Emma C. stated the suspect's stomach was smaller than his. Id. During the interview, Emma C. also explained the suspect did not a have a "roll." Ex. 65 at 38 of 95. Amanda C. testified that she believed her attacker was five foot eight. 05/14/2010 TT at 1249. She further testified that her attacker did not have a "pot belly." Id. at 1249-50.
147. On November 25, 2008, the day Biela was arrested, he was six-foot-tall and weighed two hundred fifty-three (253) pounds. By all metrics, Biela was considerably overweight and had a significant belly. This was evidenced by full-body photographs captured by Reno police on November 25, 2008, which the State elected not to introduce into evidence. See 05/19/2010 TT at 2115. After approximately one and a half years of incarceration, Biela lost approximately fifty pounds. Despite not fitting the body types described by Emma C. and Amanda C., trial counsel failed to present evidence of Biela's physical condition at the time of the offenses or his arrest. The jury was unaware that Biela's physical condition at trial, referred to as "familiar" by Emma C., was wholly inconsistent with his physical condition in the fall of 2007 or even in November of 2008.
148. As a result of trial counsel's deficient performance, the State was able to falsely claim that Biela matched the physical descriptions provided by Emma C. and Amanda C., which he did not at the time of the offenses nor at the time of his arrest.
149. At trial, Amanda C. testified she was assaulted and raped in a University of Nevada, Reno parking lot on October 22, 2007. 05/14/2010 TT at 1211-15. She identified Biela as the person who assaulted her. Id. at 1225. She described her actions following the alleged rape. Id. at 1227-30. Amanda C. explained she only told one person about the rape: her roommate, Debbie Johnson. Id. at 1229. She provided a detailed explanation as to why she had confided in her roommate Debbie as opposed to anyone else, noting she had "gotten in a fight the night before and [Debbie] was accusing her of being really unlivable and unbearable. . . ." Id. at 1230. She specifically stated she did not tell her husband (boyfriend at the time) about the rape. Id. at 1228. When asked why she had not told any of her family members she responded, "I didn't want anybody to know." Id. at 1229. She also noted she had recently spoken with a psychologist, Dr. Behrman-Lippert. Id. at 1240.
150. Dr. Behrman-Lippert testified at trial. Id. at 1267-1298. She described meeting with Amanda C. once, less than one month before Biela's trial began. Id. at 1285. The prosecutor and Dr. Behrman-Lippert then engaged in the following dialogue:
Id. at 1287-88 (emphasis added). Trial counsel were ineffective for failing to cross-examine Dr. Behrman-Lippert and impeach Amanda C. regarding Amanda C.'s prior statements that the rape seemed like a dream and that she had informed her fiancé the day after it purportedly occurred. Amanda C.'s inconsistent statements as to who she confided with regarding the rape are significant as she claimed to have only told one person regarding the alleged assault. There was no valid strategic reason for trial counsel not to impeach her with statements made to her psychologist that contradicted her trial testimony.
151. Prior to trial, when first interviewed by law enforcement on January 29, 2008, Amanda C. told Reno police she had gone to a gynecologist after her attack and had been diagnosed with genital herpes. Id. at 1231-35. Specifically, she met with Detective Brouker on January 29, 2008 and told him that one week after the assault she had developed a urinary tract infection, went to the doctor and learned she had possibly contracted genital herpes from the suspect. See Ex. 66 at 4. At trial, Amanda C. admitted to having lied to Detective Brouker. 05/14/2010 TT at 1235. She admitted to having gone to the doctor, not following the alleged rape, but at the end of September of 2007, at which point she was diagnosed with the venereal disease and prescribed Valtrex. Id. at 1235-37.
152. Dr. Pamela Netushil testified she reviewed Amanda C.'s medical records, including gynecological records, and confirmed Amanda C. had gone to the doctor twice in September of 2007. 05/17/2010 TT at 1367. The first visit on September 7, 2007 was for a routine pap smear. Id. During the second visit, however, Amanda C. presented "painful urination, discharge, pelvic pain, a variety of symptoms and then underwent an examination." Id. The examination revealed Amanda C. had genital herpes. Id.
153. Amanda C. corrected her story to law enforcement in the weeks prior to trial once it was discovered Biela did not have genital herpes. Between January of 2008 and February 23, 2010, Amanda C. lied to both investigators as well as the trial court. In fact, at Biela's preliminary hearing on December 10, 2008, trial counsel engaged in the following question and answer with her:
12/10/2008 Preliminary Examination Volume I at 24-27. The prosecution objected to Slocum's last question and the court prevented Amanda C. from responding. Id. at 27. Despite having an opportunity to correct her misrepresentations, Amanda C. elected to perjure herself before the trial court by noting the STD test had occurred following the attack in October of 2007, rather than in September of 2007.
154. The State likewise parroted Amanda C.'s false accounting throughout pre-trial proceedings. For example, during a May 1, 2009 hearing on Biela's motion to sever, Sattler stated, "The [d]iscovery that the State had provided to the Defense is that she did contract a venereal disease. . . [h]erpes" 05/01/2009 Transcript of Oral Proceedings Motion to Sever Counts Hearing at 9. In February of 2010, Detective Jenkins wrote an affidavit for a seizure order to obtain Biela's blood for the purpose of determining whether or not he had genital herpes. See Ex. 68. In it, he wrote: "Amanda C. claimed that shortly after the attack she developed symptoms consistent with, and has subsequently been diagnosed with, the Herpes Simplex Virus (HSV). Amanda C. claimed that she suspected and believed the virus had been transmitted to her during the sexual assault by the suspect." Id. at 4, ¶5. Results showing Biela was negative for the herpes virus came back to Jenkins on February 23, 2010. 05/14/2010 TT at 1196.
155. Trial counsel failed to impeach Amanda C. with the above-referenced false statements and testimony made during the course of the investigation and pre-trial proceedings. In fact, trial counsel failed to pose a single question to Amanda C. regarding her various misrepresentations.
156. Trial counsel's defective performance on this particular issue was compounded by their failure to review critical medical records pertaining to Amanda C. During Netushil's direct testimony, trial counsel Pusich interrupted the proceedings to inform the court she had yet to see or review the subject medical records detailing Amanda C.'s gynecological tests, which Netushil was relying upon. 05/17/2010 TT at 1364. As noted above, the records reflected that Amanda C. had visited her gynecologist and had been diagnosed with herpes in late September of 2007 and not following her purported October 22, 2007 attack, as the State misled Biela to believe until mere days prior to trial. The State then provided the same and trial counsel agreed to take a five-minute recess to review the documents. Id. Upon resuming proceedings, trial counsel stated, "Your Honor, I've reviewed Mr. Hicks' copy, and he's agreed to let me use it while I do my questioning." Id. at 1366. Upon the trial court inquiring if there was a "problem," trial counsel stated there was not. Id.
157. Trial counsel was ineffective for failing to properly prepare to cross-examine Amanda C. by reviewing her medical records. In addition, trial counsel was ineffective for failing to adequately cross-examine Amanda C. regarding her above-referenced misrepresentations to Reno police and the trial court. There is no valid strategic reason not to impeach a witness' credibility with her prior inconsistent statements made under oath to the trial court. Likewise, there is no valid strategic reason not to impeach a witness' credibility with prior inconsistent statements made to law enforcement or her failure to correct said falsehoods for over two years.
158. During Detective Jenkins' direct examination, the State asked him whether any events had prevented him from obtaining a photo line-up identification from alleged victim Amanda C. 05/13/2010 TT at 841-42. The detective responded by stating Amanda C., in the days prior to the photo line-up identification, had been alerted to a recent arrest and had seen internet "media accounts and specifically photographs of an individual [and] was certain that that was the individual who had attacked her." Id. at 842. Amanda C. had then shown Detective Jenkins a specific photograph from the internet, which portrayed Biela. Id. at 842-43. Detective Jenkins described Amanda C.'s demeanor as crying, visibly shaken, and upset. Id. at 843. District Deputy Attorney Sattler then engaged in the following exchange with Jenkins:
Id. Trial counsel was ineffective for failing to object to hearsay testimony regarding Amanda C.'s purported identification of Biela while being interviewed by Jenkins. In addition, trial counsel was ineffective for failing to object to the State vouching for its own witness, Amanda C., through the testimony of Jenkins, the lead detective in the investigation. Jenkins statements regarding Amanda C.'s willingness to be "part of the investigation" comprised improper comments meant to support the credibility of Amanda C. As such, trial counsel should have objected to Jenkins' impressions upon Amanda C.'s ulterior motives for coming forward with her allegations.
159. Following Biela's November 25, 2008 arrest, Reno police executed a search warrant on his home and seized four computers from it. 05/20/2010 TT at 2386, 2388. The computers were searched by Detectives Ferguson and Mason. Id. at 2379. To conduct a forensic search of the computers, Ferguson testified he used EnCase, a computer program commonly used by law enforcement. Id. at 2369. Ferguson testified his search of one computer revealed pictures of panties. Id. at 2386. He testified he reviewed some of the images and internet pages found by Mason in other searches conducted with the assistance of the EnCase program and observed pictures of thongs and women in thongs. Id. at 2389. Mason testified the word "thong" showed up 1,164 times on one searched computer. Id. at 2404. Through Ferguson and Mason's testimony, the State sought to show Biela had a proclivity for thongs to establish a common scheme or plan in the Emma C., Amanda C., and Denison assaults.
160. Prior to trial, defense counsel retained independent computer expert Kirk Stockham to review the forensic work done by the Reno Police Department. Stockham prepared a report of his findings. See Ex. 69. In the report, he notes, "I received EnCase software `work' files that detail some of the data searching done thus far by law enforcement officers. I have not received all of the EnCase reports and data findings as requested by the defense. . . I have not seen the original PC's or their hard drive units." Id. at 1. In addition, in a separate memo to defense counsel, Stockham noted: "[d]iscovery was not complete for my work on this case. Missing are the samplings of images and spreadsheet reports on keyword uses and results reported by Officer Ferguson that he recorded on DVD." Id. at 4.
161. On January 9, 2009, defense counsel for Biela filed a Request, Stipulation and Order Re Pre-Preliminary Hearing and Pre-Trial Reciprocal Discovery. See Ex. 1. In the pleading, the State agreed to provide defense counsel with "results or reports. . . scientific tests and scientific experiments made in connection with the particular case; and. . . tangible objects that the prosecuting attorney intends to introduce during the case in chief of the State." Id. at 2.
162. The State violated its discovery obligations by failing to provide the above-referenced materials to defense counsel. At trial, trial counsel failed to object to Ferguson and Mason's testimony regarding the forensic searches of those computers seized from Biela's home. The testimony, however, concerned tangible materials as well as electronic data that was owed to Biela, but which he was nevertheless not allowed to properly examine or test. There was no valid strategic reason for trial counsel not to move to exclude the evidence in light of the State's discovery violations.
163. Nurse Denise Engel testified she performed a Sexual Assault Response Team (SART) test on Emma C. on December 16, 2007 following her assault. 05/12/2010 TT at 766-67. She further testified she took each piece of clothing Emma C. was wearing, rolled it up, placed each item into a paper bag, and delivered the evidence to the WCCL. Id. at 774. Trial counsel did not pose any questions through cross-examination. See id. at 775.
164. At trial, Emma C. testified she was wearing a coat on December 16, 2007 while she was assaulted. Id. at 595-96. She further testified her attacker at one point put his hand on the hood of her coat. She described wearing the coat and having the hood over her eyes throughout the entire assault. Id. at 670-71. Finally, she noted she had kept the coat after December 16, 2007; in other words, the coat was never collected from Engel or Reno police for testing. Id. at 596. She noted she only gave the coat to a Reno detective in December of 2008 at the time Biela's preliminary hearing was held. Id.
165. Engel explained she was the person responsible for taking victims' clothes when they reported a sexual assault during Biela's preliminary hearing. December 10, 2008 Preliminary Examination Volume I at 109. Further, she noted it was "very important" that evidence be collected as soon as possible after the assault. Id. at 111. In this case, however, per the State's own admissions, Emma C.'s coat was not collected until December 10, 2008, almost one year following Emma C.'s assault. Further, the State never bothered to test the coat for genetic material.
166. Trial counsel failed to impeach Engel and state officers charged with conducting forensic tests, with their failure to collect Emma C.'s coat and test the same for foreign genetic material. As noted above, Emma C.'s coat likely contained genetic material of her attacker. Given the State's collection of a DNA sample purportedly matching Biela from Emma C.'s body, see 05/21/2010 TT at 2697-98, there was no downside to having the coat tested as well. Thus, there was no valid strategic reason for trial counsel's actions.
167. At trial, the State called Shakeel Hussein Dalal to testify. 05/20/2010 TT at 2261. Dalal testified that in the early morning hours of January 20, 2008 he drove to the Sands Hotel and Casino on Fourth Street in Reno, the hotel Denison visited the night she was abducted. Id. at 2262. He testified he drove his own vehicle, a `97 Chevy Tahoe. Id. at 2263. Once at the hotel, he decided not to go in. Id. at 2263. He explained that, while in the parking lot, a "young lady (subsequently shown to be Denison's friend Jessica Deal). . . stuck her thumb out like she needed a ride, and she wanted a ride, and so I gave her a ride." Id. at 2264-65. Dalal testified he dropped Deal off at 1395 Mackay Court, the residence Denison was abducted from, around 1:45-2:00 a.m. Id. at 2267-68.
168. In the days following Denison's disappearance, Dalal became a person of interest for the Reno Police Department after video footage from the Sands Hotel revealed Jessica Deal getting into his vehicle. Id. at 2269-70. Dalal testified that, before contacting Reno police, he hired attorney Ken McKenna to represent him. Id. On January 22, 2008, Dalal, with the assistance of McKenna, met with Detectives Jenkins and Wygnanski and gave a "full statement." Id. The detectives looked through his vehicle and obtained a DNA sample from Dalal. Id. at 2270-71. At trial, defense counsel elected not to cross-examine Dalal. Id. at 2271. Per Officer Roya Mason's testimony, Dalal's computer was subsequently obtained and searched by Reno police. 05/20/2010 TT at 2397-98. At trial, Mason testified he "understood Mr. Dalal to be a person of interest in the initial part of the case having some association with the residence of the Mackay home." Id.
169. Trial counsel were ineffective in failing to cross-examine Dalal, in light of Jenkins and Mason's testimony in addition to information obtained by Reno police during its investigation that was never disclosed at trial.
170. During his January 22, 2008 interview, Dalal explained that, after dropping off Deal at the Mackay home, he went back to his home in Sparks, but only to return around 3:00 a.m. to the Sands Hotel area to purportedly meet a prostitute at the Seasons Hotel in downtown Reno. Ex. 70 at 5. He testified he "was done" with the prostitute around 3:30 a.m. and then went back home. Id. Further, he told the detectives he worked at Charter Communications, a company located only one block from the field where Denison was ultimately found on February 15, 2008. Ex. 71.
171. Trial counsel were ineffective in failing to cross-examine detectives Jenkins and Mason regarding Dalal, who they considered a suspect during the early part of their investigation. Reno police's suspicion of Dalal as the individual responsible for Denison's disappearance was not merely based on him having given Jessica Deal a ride home on January 20, 2008, as the jury was led to believe. Rather, other facts and circumstances existed to reinforce that suspicion, which, due to trial counsel's ineffective cross-examination, the jury never got to hear. The jury never got to hear that, around 3:00 a.m.—after driving Deal to the home Denison disappeared from—he had returned to the Sands Hotel area where Denison was still present. Ex. 70 at 5. Likewise, the jury did not hear that Dalal worked only one block from the field where Denison's body was found. Ex. 71. Despite all these seemingly fortuitous circumstances, trial counsel never sought to investigate Dalal. Further, at trial, trial counsel did not pose a single question to Dalal or the detectives regarding the above facts.
172. John Latham testified he was a foreman at J.W. MClenahan, the plumbing/pipe-fitting company where Biela was employed on February 15, 2008, the date Denison's body was found. 05/21/2010 TT at 2502. He testified that, on that day around 10 or 11:00 a.m., Biela came up to him and requested a layoff. Id. at 2515. He further testified his company at that time was laying off workers. Id. at 2516. He stated news of Denison's discovery had already "hit the airwaves." Id. at 2516-17. Following cross-examination, the jury asked Latham, "What time of day did Mr. Biela give his resignation, the one on February 15th of 2008?" Id. at 2527-28. Latham responded, "I would have to say it was 11 o'clock. . . this sounds about — that's about the time frame, is around 10:00 or 11:00 [a.m.]" Id. at 2528.
173. The prosecutor, aware that the time provided preceded discovery of the body, asked Latham if he had previously told Detective Chalmers that Biela had asked for a layoff "after the information about Denisons's body being found had `hit the airwaves'. . . ." Id. at 2528. Latham noted he had. Id. at 2529. Sattler further asked, "So, would it be fair to say you don't have a specific recollection of the time it happened, but it was certainly after the fact that Ms. Denison's body had been found." Id. Latham responded, "Correct." Id. Trial counsel did not object to Sattler's line of questions. Contrary to Sattler's leading question, Latham did remember the exact time Biela asked for a layoff: between 10:00 and 11:00 a.m., as he noted on two separate occasions during his testimony. See id. at 2502, 2528.
174. Sattler coerced Latham's answer through leading questions because he knew Denison's body had not been found until sometime after 12:00 p.m. State witness Alberto Jimenez found Denison's body on his walk back to work from lunch and the first state official did not arrive at the scene until 12:45 p.m. See Ex. 72. Further, Denison's discovery did not "hit the airwaves" until approximately 3:13 p.m., well after the 10:00-11:00 a.m. range provided by Latham. See Ex. 74. Moreover, as noted by Latham, Biela was required per Union bylaws to receive his final paycheck no later than 3:30 p.m. that day. 05/21/2010 TT at 2534-35.
175. There was no valid strategic reason for trial counsel not to object to Sattler's question as asked and answered and leading the witness.
176. At trial, the State made numerous misrepresentations concerning significant aspects of the Reno police investigation, including, but not limited to falsely asserting that: Emma C. had identified the satellite radio in Biela's car, characterized Biela's truck as a "pigpen," and had been placed in a "rear-naked chokehold;" that Biela had sold his vehicle to "get rid of evidence;" and that no forensic evidence was found in Biela's truck because it had been cleaned twice.
177. During trial, Emma C. testified she saw a "detachable CD player" in the front side of her assailant's vehicle. 05/12/2010 TT at 626-27. She was shown pictures of Biela's vehicle (trial exhibits 19-A through G) and stated some items or features were familiar. Id. at 709-10. The pictures shown to Emma C., however, did not depict the satellite radio affixed to the car by Biela, as subsequently explained by witness Carleen Harmon. 05/24/2010 TT at 2889-90. Further, Emma C. never made reference, whether prior to or during trial, to the vehicle containing a satellite radio. See Ex. 76 at 3 (describing the item on the dashboard as a radio, tape player, or CD player that "was not a new or sophisticated model"). Still, during closing arguments, Sattler represented Emma C. had identified the satellite radio during her testimony. 05/26/2010 TT at 3301. Trial counsel did not object to Sattler's misrepresentation.
178. Sattler also falsely claimed Emma C. had described her attacker's vehicle as a "pigpen." Id. at 3302. Emma C. never described the car as such. Nevertheless, Sattler sought to reconcile Emma C.'s testimony with that provided by Carleen Harmon and John Latham, both of whom testified the vehicle was littered with trash, cluttered and dirty. See 05/21/2010 TT at 2512; 05/24/2010 TT at 2887-88. However, Emma C. merely noted she saw paper on the vehicle's floorboard. 05/12/2010 TT at 682-83. Further, during one of her pre-trial interviews with Reno police, she denied seeing fast-food trash on the floor. See Ex. 78. Trial counsel did not object to Sattler's misrepresentation.
179. Sattler further misrepresented that Emma C. said her attacker had a shaved groin and that Carleen Harmon had stated "[t]he defendant used to like to shave his groin area or keep it neatly trimmed." 05/26/2010 TT at 3303. Sattler went on to note the defendant shaving his genital area was "something that was relevant to the case because it assisted in the identification of the person who committed the crime." Id. at 3407-08. Harmon testified Biela "would keep [his pubic region] trimmed or shaved" or "short." 05/24/2010 TT at 2892-93. However, Emma C.'s description was not that her attacker's public hair was short or trimmed, but, rather, that "the skin [was] so noticeably smooth that [she] speculated that he might have used a hair removal cream or similar process." See Ex. 76 at 1.
180. Sattler further misrepresented Emma C. was placed in a rear naked chokehold when she was attacked. 05/26/2010 TT at 3297. He noted Biela had a "blue belt in Ju-Jitsu" and was "[p]roficient in the rear naked chokehold." Id. at 3334. Sattler's speculative statement is inconsistent with Reno police's own investigative findings. Prior to trial, Detective Chalmers discussed Emma's attack with Jason Jones, a co-worker of Biela, martial arts practitioner, and witness for the State. See Ex. 79. Chalmers described the manner in which Emma C. claimed she had been grabbed from behind, noting "he [couldn't] imagine" it was a "martial arts move." Id. Jones agreed with him. See id. Despite the investigation's findings, Sattler speculated it was a rear naked chokehold. 05/26/2010 TT at 3297. Sattler mispresented the evidence because Biela was known to practice Jiu-Jitsu.
181. Sattler similarly misrepresented that Biela sold his vehicle, a 2006 Toyota Tacoma, to get rid of evidence. Id. at 3320. He added that Biela had sold his truck because "everybody was looking for [it]." Id. As proof of Biela's purported intent, Sattler noted Harmon's testimony that the vehicle was paid off at the time it was sold. Id. First, the representation "everybody was looking" for a 2006 Toyota Tacoma is false. At best, and as evidenced by state expert Sam Metz's report, people were looking for a 2004 Toyota Tacoma. See Ex. 29. Second, the lack of payments due on the vehicle are not indicative of anything, as Harmon herself could have testified had trial counsel effectively cross-examined her. Unbeknownst to the jury, Harmon herself traded in a paid off vehicle for one requiring payments mere months after Biela did.
182. Sattler further stated Biela must have sexually assaulted Denison in his truck. 05/26/2010 TT at 3314. He misrepresented, "Maybe we're wondering why is there no evidence of that in the truck? Keep in mind, ladies and gentlemen, when the truck was eventually sold by the defendant up in Kellogg, Idaho, it was detailed on the inside not once but twice." Id. at 3314. Detective Broome testified to bringing Biela's Toyota Tacoma back from Idaho to the WCCL for evidence processing. 05/18/2010 TT at 1683-89. Candi Potts helped process the vehicle but testified that she was not hopeful of finding forensic evidence and that she would be surprised if they found any. Id. at 1742-43. However, contrary to Sattler and Potts' assertions, forensic evidence was in fact found in the truck. See Ex. 81 at 2. Specifically, Biela could not be excluded as the source of the DNA evidence found in the car. Id. However, because Denison and Emma C.'s DNA profiles could not also be found in the vehicle, the State misrepresented that the absence of incriminating genetic material was due to auto detailing.
183. Trial counsel failed to object to the above-referenced misrepresentations of fact asserted at numerous times by the State. There was no valid strategic reason for counsel to allow Sattler to blatantly misrepresent the State's evidence.
184. Following two days of jury selection, the following jurors were selected to hear Biela's trial: L. Olson, J. Indiano, J. Snyder, K. Fitzgerald, P. Dougherty, C. Spellacy, R. Andrews, C. Ellis, K. Seaton, T. Booker, D. Graham, F. Williams, A. Jimenez, R. Lundin. 05/11/2010 TT at 521. Rhonda Lundin was selected to be the second alternate juror. Id. at 519.
185. During jury selection, Lundin explained she worked at the University of Nevada, Reno as director of media services. 05/10/2010 TT at 147, 163. Referring to the mood in Reno during Denison's murder investigation, she stated: "it was kind of a scary time for all of us." Id. at 147. She explained the situation was a "little more personal" since she worked at the university, frequented areas where the crimes occurred, and, because of her employment, had a "connection with the media." Id. She stated she followed the case online. Id. at 162. She explained she "learned a lot about th[e] case through []media coverage and through research [she] did." 05/11/2010 TT at 496. She noted that, due to her contact with media sources, she was "privy" to information about the case that had not been publicly released. Id. at 497. Lundin further explained that, during the investigation, police would escort her to her vehicle, but that her "fear kind of subsided" after Biela's arrest. Id. at 495. Lundin described wearing a blue ribbon during a UNR basketball game to help raise awareness for Denison.
186. When asked whether she had an opinion on Biela's guilt, she noted: "It seems. . . like there is a lot of evidence pointing to the person who was arrested." Id. at 498. When asked again whether she had prejudged Biela, she stated, "You know, it's hard to answer that question because, you know, I really have a lot of trust in the legal system and just the whole process." Id. Lundin added that, as a juror, she believed one should "consider everything and try not to let everything you have heard. . . before impact you or your decisions." Id.
187. Trial counsel should have moved to strike Lundin for cause as she showed she had pre-judged Biela's guilt and was incapable of being fair and impartial. Lundin's significant exposure to pretrial publicity, as well as her own biases, prevented her from being a fair and impartial juror. Trial counsel were ineffective for failing to strike her for cause or, in the alternative, using a peremptory strike to remove her from the jury.
188. Juror Dana Graham was selected to hear the case following two days of jury selection. 05/11/2010 TT at 521. During jury selection, juror Dana Graham introduced herself and explained her husband was "a newly retired deputy sheriff" for Washoe County. 05/10/2010 TT at 25. Graham also disclosed she knew Michael Lyford, a Washoe County Sergeant in charge of the Forensic Science Unit of the Washoe County Sheriff's Office. Id. at 31. The Forensic Science Unit includes, manages, and operates the Washoe County Crime Laboratory (WCCL), the facility that collected and tested all DNA samples critical to Biela's prosecution. Graham represented her knowledge of Lyford would not prevent her from being fair and impartial. Id. Graham further stated she recognized a couple names on the State's witness list, but was not asked what names she was referring to. Id. She also conceded having "read some of the blogs" publishing information on the case prior to trial. Id. at 162.
189. Despite Graham noting she was married to a former Washoe County deputy sheriff and that she knew the officer in charge of the agency overseeing the WCCL, trial counsel failed to conduct any inquiry into the obvious potential bias affecting Graham. Trial counsel was ineffective for failing to examine Graham's bias. Trial counsel's failure to challenge her for cause or, alternatively, use a peremptory strike also rises to the level of ineffective assistance of counsel.
190. At trial, Detective David Jenkins testified he believed the same individual was responsible for the assaults of Amanda C., Emma C., and Denison. In addition, he explained that various differences pertaining to the conduct of the suspect during all three assaults did not lead him to believe the same were unrelated. 05/19/2010 TT at 2050-52. Jenkins noted how, during Amanda C.'s assault,
191. Jenkins explained these differences by providing various speculative theories concerning the assailant's methodology and the above-referenced women's "victimology." Id. at 2051-52. Trial counsel did not object to the testimony.
192. Detective Ron Chalmers testified twice regarding his investigation of the Denison murder. See 05/21/2010 TT at 2492-2500, 2536-37. He testified regarding a phone conversation and an in-person meeting with Biela. Trial counsel did not pose any questions to Chalmers. See id.
193. Contrary to Jenkins' testimony, the Reno Police Department did not believe all three crimes had been committed by the same offender until after Biela was arrested. That posture is reflected by steps taken and statements made by Reno detectives during the investigation. Amanda C. was purportedly assaulted on October 22, 2007. She did not report the crime to Reno police, specifically Detective Jay Brouker, until January 29, 2008. 05/14/2010 TT at 1233. At some point shortly thereafter, Amanda C. met with officer Paul Villa to create a composite sketch of her attacker. Id. Thereafter, Amanda C. was not contacted by Reno police for 11 months or until after November 25, 2008 when Biela was arrested. Id. at 1238. During these same months, Jenkins testified "the investigation continued at a very intensive rate" and "[a]round the clock" with Detective Wygnanski and himself working 18-hour days. 05/19/2010 TT at 2057-58. Still, no one from the Reno police sought to make contact with Amanda C., collect a DNA sample reference from her, or even recover the letter she had written to her roommate Debbie immediately after her rape wherein she described the incident. In fact, the letter to Debbie was not collected by Reno police until April 8, 2010. 05/14/2010 TT at 1312. At trial, Debbie described how Detective Brouker had failed to obtain the letter from her in January of 2008 and how she had kept it until shortly prior to trial in case it was needed. Id. at 1312-13.
194. That no one from the Reno police sought to talk to Amanda C. more than once during the above-referenced time period demonstrates they did not believe her attack was related to Denison's. In contrast to Amanda C.'s case, during the above-referenced time period, Emma C. was in constant contact with Reno police by telephone, email, and personal contact, with detectives Callahan, Geddry, and Jenkins interviewing Amanda C. numerous times and even flying out to Taiwan to meet with her. See 05/13/2010 TT at 793-99; 05/20/2010 TT at 2325.
195. Chalmers confirmed Reno police's skepticism regarding Amanda C.'s case while interviewing Tom Grundy, a former co-worker of Biela's. Chalmers explained to Grundy that Reno police did not believe Amanda C.'s case was related to the remaining two assaults. See Ex. 84. In fact, Chalmers stated there was an "internal combat" within the Reno Police Department on whether to release the composite profile drawing created with Amanda C.'s help because there was no positive linkage between that case and Denison's. Id. Chalmers noted, "I'm to this day not convinced that those two are related." Id.
196. Trial counsel were ineffective for failing to impeach detectives Jenkins and Chalmers with the above-referenced information to show Reno police's skepticism, during Denison's murder investigation, that Amanda C.'s case was in fact related to Emma C. and Denison's. As a result of trial counsel's ineffective representation, the State was allowed to freely argue Reno police believed the cases were related and explain discrepancies between the cases through speculative testimony.
197. The numerous instances of ineffectiveness of trial counsel detailed above fell below objective standards of reasonableness. There is a reasonable probability of a more favorable outcome if trial counsel had performed effectively. The State's investigation was a mess, and its case at trial was nothing more than a cobbled together series of misrepresentations of the evidence. If trial counsel had adequately rebutted and impeached the State's evidence, there is a reasonable probability Biela would not have been convicted and sentenced to death.
The trial court erred in entering various rulings prior to and during trial and denied Biela his constitutional guarantees of due process, equal protection, a fair trial, and the right to counsel, rendering his conviction and sentence of death invalid under the federal constitution. U.S. Const. amends. V, VI, VIII, XIV.
1. Jurors Randal Wood, Bonnie Stover, and Kent Green demonstrated during jury selection that they were unable to be fair and impartial. Still, the trial court refused to strike them for cause and thus forced Biela to use three peremptory challenges to remove them from the jury pool.
2. Defense counsel unsuccessfully challenged Juror Green for cause. 05/10/2010 TT at 263, 274; 05/11/2010 TT at 308.
3. During jury selection, in response to the trial court's inquiry whether he had any questions, Prospective juror Green noted: "I have a 20-year old daughter that went to Reno High who is currently a college student, so I've been following this case very closely." 05/10/2010 TT at 68. In response, the trial court asked whether Green could be fair and impartial. Id. at 69. Green responded, "I'm not a hundred percent sure." Id. The trial judge insisted: "Would you try to do that?" Green relented and noted he would try. Id. Judge Perry moved on. See id. During subsequent examination by the State, Green noted his 20-year old daughter had "just had her house robbed in Tempe" where she attended the University of Arizona. Id. at 178. Sattler asked if Green could "not bring your feelings about your situation with your daughter into the courtroom." Id. at 179. Green stated, "That's a question I don't know if I could answer right now[,]" subsequently adding he would "certainly try." Id.
4. Green subsequently noted it would be "tough" for him to put his emotions aside given the amount of exposure to the Denison case he had been subject to for two years prior to trial. Id. at 261. He explained he was more emotional about the Denison case than the average person, "not because I knew Brianna," but because of "similarities" to his daughter. Id. He stated that, if he was in Biela's position, he would not want people with his "mindset" in the jury. Id. at 262. He once more stated he did not think he would be able to set aside his emotions. Id. When asked whether his views, on whether he could set aside his emotions, went back and forth he stated, "Right now, no." Id. Sattler insisted, asking whether he could be fair and impartial, but Green unequivocally noted: "I cannot. I do not believe I can." Id. at 263.
5. Following the above-referenced exchange, defense counsel moved to strike for cause. Id. Judge Perry refused to strike for cause. Id. Despite Green's unequivocal statement to Sattler that he could not be fair and impartial, Judge Perry stated he believed Green appeared willing to try to be fair and impartial. Id.
6. Green also expressed his inability to be fair and impartial during the prospective sentencing phase. Upon being questioned by defense counsel, Green expressed doubt over whether he could consider mitigating factors when deciding a sentence. Id. at 268. He further indicated his decision to sentence Biela to death would be swayed depending on the unanimity of the jury on the issue. Id. at 270-71. He further explained he would not "give serious considerations" to any "facts about the defendant" in the event he was found guilty of sexual assault and murder. Id. at 273. He noted, in such instance, no facts would compel him to give meaningful weight to a sentence granting parole. Id. Leslie moved to strike Green for cause once more. Id. at 274. The trial court refused to strike Green for cause. Id. at 280-81. Leslie then asked whether Green could consider mitigating evidence and come back with a parole eligible sentence. Id. Green stated it would depend on the mitigation evidence. Id. However, Green further stated the defense would need to "prove something to [him] in order for [him] not to vote for a death sentence. . . ." Id. He further noted he would not consider a sentence that included parole eligibility. Id. at 283.
7. On the second day of trial, Leslie moved to strike Green for cause once again. Id. at 308. The trial court once more refused to do so, noting: "I think it's a close question with regard to Mr. Green in some ways." 05/11/2010 TT at 318. Further, the trial court faulted defense counsel for posing improper hypotheticals on Green. Id. at 319-21. Trial counsel was forced to use a preemptory challenge to dismiss Green from the jury. Id. at 516.
8. Defense counsel also unsuccessfully challenged Juror Wood for cause. Id. at 466. Wood stated other jurors should be mindful that, whereas Biela had the option of being sentenced to death or 50 years with the possibility of parole, Denison had no options. Id. at 395. He noted that jurors who failed to correct that discrepancy by sentencing Biela to die would have to "live with their conscience." Id. In a subsequent exchange with defense counsel Leslie, Wood noted being fair to him meant "[t]here should be no options" for Biela, as there were none for Denison. Id. at 413. Leslie asked Wood, "And so in your mind, what is — if there's no options then what is the outcome?" Wood responded, "Death penalty." Id. at 413-14.
9. Leslie unsuccessfully moved to strike Wood for cause. Id. at 466-67. Biela was forced to use a peremptory challenge. Id. at 516.
10. Defense counsel also unsuccessfully challenged Juror Stover for cause. Id. at 430, 467. Juror Stover stated: "I don't know if I could entertain the thought of 50 years and someone being released in 20, unless someone could assure me that he was not going to commit the crime again when he came out. . . ." Id. at 422. He stated he could not return a sentence of 50 years in prison with parole eligibility of 20 in a case involving murder and sexual assault. Id. at 424. When asked whether mitigating factors could sway him to return such a sentence, Stover stated, "No, because I think it's a personality flaw." Id. at 425. He noted he was in agreement with Juror Wood that since "the person being harmed or murdered had no options at that time," no such leniency should be shown to the defendant when crafting a sentence. Id. at 426. He reiterated that, in cases involving premeditated first-degree murder, he could never consider a sentence of 50 years with parole eligibility after 20 years and that nothing in the "defendant's upbringing []would change [his] mind. . . ." Id. at 426-27. He noted he would not be able to arrive at such a sentence if his "own son" committed such a crime Id. at 428.
11. Defense counsel challenged Stover for cause twice, but was denied each time. Id. at 430, 467. Biela was forced to use a peremptory challenge to dismiss Stover from the jury. Id. at 518.
12. Biela was forced to use three peremptory strikes to remove the above-referenced jurors despite evidence showing they could not remain fair and impartial towards Biela and that their views would impair the performance of their prospective duties. The trial court erred in refusing to strike the above-referenced jurors for cause. Further, the error was grounds for reversal since, on account of Biela having exhausted all peremptory challenges, incompetent jurors and a biased jury therefore was forced upon him.
13. Biela's conviction and sentence of death are invalid under the federal constitutional guarantees of due process and a fair trial because the trial court failed to sever the sexual assault counts involving Amanda C. and Emma C. from the counts involving Denison. The trial court erred by permitting the charges involving three distinct events, victims, and locations to be tried together.
14. Biela was charged with five crimes involving three separate victims. First, the State charged Biela with sexually assaulting Emma C in a parking complex, using a handgun on October 22, 2007. 12/09/2008 Information. Second, the State charged Biela with kidnapping and sexually assaulting Emma C. on December 16, 2007. 12/19/2008 Information at 2. Finally, the State charged Biela with murdering, by means of asphyxia, and sexually assaulting Denison on January 20, 2008. 12/19/2008 Information at 2-3. Defense counsel filed a motion to sever the charges on March 27, 2009, arguing that the crimes occurred on "separate day[s], with separate victims at separate locations." 03/29/2009 Mtn to Sever at 8. On May 4, 2009, the trial court denied Biela's motion to sever the charges because there was sufficient evidence of a "common scheme or plan" and the crimes were "connected together" pursuant to NRS 173.115(2). 05/04/2009 Order Regarding Severance of Pending Charges at 2-5.
15. The joint trial of these offenses so manifestly prejudiced Biela that it outweighed any concern of judicial economy. Each of the incidents were distinct and independent, but the State was able to bolster its position as to each case by relying upon evidence from the other two, despite their lack of relation. The events each took place at separate locations: one occurred in a parking garage at UNR, the second in a parking lot of an apartment near UNR, and the third inside an apartment near UNR. 2 ROA at 506.
16. The prejudicial effect of the trial court's failure to sever the counts was substantial, as evidenced by the conviction of the charge related to Amanda C. The identification evidence in Amanda C.'s case was suspect and insufficient;
17. Defense counsel also argued that there was concern of confusion between the cases, and specifically argued that the DNA evidence would confuse the jury because there was different types of DNA evidence and different levels of exclusivity in the cases. 05/01/2009 TT at 24. Defense counsel's concern about the prejudicial effect of the joinder was prophetic as the trial court was unable to correctly identify the evidence in each case during preliminary hearings:
Id. at 61, 62. The trial court had the opportunity to read and review the evidence presented in written form and to hear oral argument yet was unable to keep the facts of each case straight. Therefore, it was unreasonable to expect the jury to be able to accurately relate the distinct evidence to each case during the trial.
18. The trial court's inability to distinguish the evidence shows the inherent prejudice in trying the cases together. The jury likely and improperly accumulated the evidence together against Biela. The jury also likely inferred from the evidence of one offense that Biela must have committed the other offenses. The sheer fact Biela was being charged with three sexual assaults made him appear more guilty to the jury, and more morally culpable.
19. From a practical standpoint there were also reasons that the counts should have been severed. The witnesses in the three cases were entirely different; the crimes were against separate victims with no connection; the forensic evidence was different; and there was no pattern or modus operandi involving Biela to justify trying the cases together.
20. Additionally, the State committed misconduct by misleading the trial court in its opposition to the motion to sever. In arguing that Amanda C., Emma C., and Denison's cases involved similar facts, the State claimed that "thong underwear were definitely taken from the residence in Brianna's case and from Emma. . . ." 04/19/2009 Opposition to Motion to Sever Counts at 8. However, the State was, or should have been, aware that Emma was not wearing thong underwear when she was attacked. 05/19/2010 TT at 2117-18. She gave detectives "a reference sample" of her underwear that was taken, which the detective described as "bikini underwear." Id. at 2118. The State's misconduct prejudiced Biela because the trial court refused to sever the trial based on the facts presented by the State. Trial counsel's failure to object to the State's misconduct in misleading the trial court was objectively unreasonable and prejudiced Biela.
21. Biela's constitutional rights were violated by the joinder of the charges. This error was prejudicial and had a substantial and injurious effect on the jury.
22. Biela's federal constitutional rights to due process and a fair trial were violated when the trial court allowed jurors to submit approximately ninety-nine questions directly to witnesses during trial.
23. The risk of allowing jury questions is that they can turn jurors into advocates, and the trial into an inquisitorial process. Certain safeguards are used to minimize this risk such as: (1) providing initial jury instructions explaining that questions must be factual in nature designed to clarify information already presented; (2) admonishing that only questions permitted under the rules of evidence will be asked; (3) admonishing jurors not to place undue weight on the responses to their questions; (4) requiring that questions be submitted in writing; (5) providing counsel with opportunities to object to the questions outside the presence of the jury; (6) determining the admissibility of the questions outside the presence of the jury; and (7) permitting counsel to ask follow-up questions.
24. The risk that the jury would become advocates or inquisitors was especially great in this case, which captivated the attention of an entire community for months. The trial court refused to change the venue of the trial despite ubiquitous blue ribbons dotting the Reno landscape in remembrance of Denison and a foundation with the purpose to "Bring Bri Justice."
25. Further, the jury was not timely admonished not to place undue weight on the responses to their questions. After notifying the jurors that they were permitted to ask questions, the trial court stated that it "will rule on [a] question just like if a lawyer asked it. If it's permissible, I will allow it. If it's not under the law, then I can't." 05/11/2010 TT at 523. The jury was not admonished against placing undue weight on responses to their questions until much later in the trial, after the jury had asked approximately a third of their questions. 05/14/2010 TT at 1241. The jury had clearly already settled on its role as an inquisitor by the time the trial court admonished the jury.
26. Nor did the trial court explicitly limit juror questions to fact questions. The trial court's failures to appropriately inform the jury about their questions is especially prejudicial in this case given the heightened atmosphere surrounding the case in Reno and the jurors' enthusiastic embrace of their interrogatory powers.
27. The sheer volume of questions at trial reflects a practice that was unrestrained. Indeed, defense counsel expressed concern that jurors were writing down questions during the testimony of witnesses, instead of listening to the testimony. 05/14/2010 TT at 1184. The jurors inserted themselves as inquisitors, rather than listening to testimony and formulated their own examinations. Defense counsel noted, "I think the Court can tell a number of the questions we are getting from the jurors are being written during the testimony of witnesses. And by the time they are being asked, these questions really have already been covered . . . . it also might be a good idea to let them know that they might want to wait and hear the testimony of witnesses." Id. Implicitly acknowledging the abnormally large number of questions posed by the jury, the prosecutor made the unusual request for an instruction to prohibit jurors from asking questions during closing arguments. 05/26/2010 TT at 3279-80.
28. The procedure employed by the trial court turned the jurors into joint-prosecutors in an inquisitorial system, thereby compromising their neutrality. This error was prejudicial and had a substantial and injurious effect on the outcome of the proceeding. By making the jurors feel like joint-prosecutors, the jurors gained a sense of personal interest in the outcome of the proceeding. The jurors were more likely to convict Biela in light of this heightened level of buy-in to the accuracy of the proceeding.
29. Biela's conviction and sentence of death are invalid under the federal constitutional guarantees of due process, equal protection, a fair trial, freedom from cruel and unusual punishments, a fair and impartial jury, and a fair and impartial tribunal because the trial court erred in denying Biela's motion for mistrial after a juror question presupposed Biela's guilt for the sexual assault of Amanda C.
30. During direct examination of Detective Jenkins, the prosecutor elicited from him the fact that Biela had attempted, unsuccessfully, to purchase a gun for the purpose of killing himself. 05/19/2010 TT at 2112-13. These comments generated a jury question—juror question MM. Id. at 2124. MM was a two-part question that first asked "was a gun found?"; to which the Detective responded in the negative. Id. at 2125. The second question was, "[d]o you have thoughts on why he would try to buy a gun, if he already had one (as used on Amanda C.)?" Id. Defense counsel subsequently moved for a mistrial on the basis that the juror's note "presupposes guilt, in the matter of Amanda C.'s case, that whoever authored MM has come to the conclusion that the defendant is guilty with regard to the Amanda C. allegations." 05/20/2010 TT at 2153, 2154. Although defense counsel initially did not object to the question, "upon further reflection, we are concerned that that question presupposes guilt, in the matter of Amanda C.'s case, that whoever authored MM has come to the conclusion that the defendant is guilty with regard to the Amanda C. allegations." Id. at 2154.
31. The trial court determined that the juror who wrote the question, Peggy Dougherty, should be examined. Id. at 2290-91, 2292. The trial court's examination follows:
Id. at 2292-93. No follow-up questions were asked and Ms. Doughtery was excused. The next day, the trial court denied the motion for mistrial. 5/21/2010 TT at 2585.
32. Neither the trial court's question nor the juror's answer dispelled the concern raised by the question. The question presupposed that Biela had a gun because Amanda C.'s assailant had a gun, which makes Biela Amanda C.'s assailant.
33. As noted above, the only evidence linking Biela to Amanda C.'s sexual assault was Amanda C.'s unreliable identification. For a juror to have reached the conclusion that Biela was in fact the person who sexually assaulted Amanda C. mid-trial was misconduct sufficient to warrant a mistrial. This violated Biela's right to an impartial jury.
34. Moreover, the reading of the question in open court prejudiced Biela, because the juror's conclusion and opinion was disclosed to the other jurors. This also warrants a mistrial as the trial court did not take any further steps to determine the nature and quality of the juror misconduct.
35. Biela's constitutional rights were violated by juror's presupposition that he committed the sexual assault on Amanda C. This error was prejudicial and had a substantial and injurious effect on the outcome of the proceeding.
36. On March 10, 2010, trial counsel filed a Motion for Change of Venue. 03/10/2010 Mtn to Change Venue. In the motion, trial counsel described the many community events and initiatives that preceded trial as well as the frequent pre-trial publicity experienced by Reno residents. Id. at 2-3. Jury selection in Biela's trial began on May 10, 2010. On May 14, 2010, the fifth day of trial, defense counsel noted the motion remained pending with the Court. 05/14/2010 TT at 1068. That same day, the trial court entered an order denying Biela's motion. 05/14/2010 Order Denying Defendant's Mtn for Change of Venue.
37. As detailed below, the trial court erred in denying Biela's motion to change venue and deprived him from his constitutional right to a fair and impartial jury.
38. The jury's inordinate exposure to media and community-generated publicity was evidenced by countless statements made during jury selection. During jury selection, the prosecutor asked: "How many people have actually followed the case in some way or other on TV? And by followed it, I mean, you kind of keep up with it." 05/10/2010 TT at 146. In response to the jury pool's reaction, Sattler noted: "Most hands are up. All right." Id.
39. In addition to the above-referenced reactions, specific prospective jurors made the following representations regarding pre-trial publicity throughout jury selection:
40. Prospective juror Doherty explained she would find it difficult to set aside pretrial publicity "because of how closely [she] followed the case while it was going on." Id. at 42.
41. Prospective Juror Robinson stated she did not think she could set aside pre-trial publicity. Id. at 43.
42. Prospective Juror Alcantar noted, "I don't think I can listen to the evidence and make a decision. I already have my decision." Id. at 45.
43. Prospective Juror Deguzman stated she didn't think she could "handle th[e] case . . . based on what I heard on television and on the news." Id. at 49.
44. Prospective Juror Dudley indicated Reno detective, Monica Geddry, and other local police officers were patients of his and that they had discussed the case with him. Id. at 55-56. He noted he was prejudiced based on information learned during those conversations. Id. at 55. He also explained a patient of his, Angela Driggs, had confided in him that "she was chased by what now appears to be Mr. Biela at the UNR parking garage." Id. at 91. He explained he had put Driggs in contact with Deputy Chief Steve Pitts. Id. Dudley noted he had "a lot of information here. . . ." Id.
45. Prospective Juror Dickerman explained: "I don't think I'd be a fair juror, just due to what I've seen in the community, and I have prejudiced and biased opinions, maybe." Id. at 57. He explained he was referring to what he had seen in the media and in the press in addition to his relationships with friends of the victim. Id.
46. Prospective juror Green was not sure he could be fair as she followed pretrial publicity of the case closely and his twenty-year-old daughter was a college student similarly situated to Denison. Id. at 68-69. He expressed concern as to being able to decide the case on the merits because "two years that is all you heard about." Id. at 261.
47. Prospective juror DiMaggio did not think he could be impartial based on pre-trial publicity he "read or heard in the media" Id. at 72-73.
48. Prospective juror Glynn stated she was a student at the University of Reno, Nevada. Id. at 146. She explained that, during the investigation, her parents drove her home "because they were worried for [her] safety." Id. Glynn added she became less concerned "[o]nce the news reported they found him. . . ." Id.
49. Prospective juror Lundin explained she worked at UNR as director of media services. Id. at 147, 163. She stated "it was kind of a scary time for all of us. Id. at 147. She explained the situation was a "little more personal" for her because of her "connection with the media." Id. She stated she followed the case online. Id. at 162. Glynn explained it would be difficult for her to avoid media press surrounding the case during trial due to her employment. Id. at 163.
50. Prospective juror Reeder explained he followed the case in the evening news, which he watched most nights, and the Reno Gazette Journal. Id. at 148.
51. Prospective juror Williams noted he was a United States history teacher and "pretty much every day the situation kids ask questions." Id. at 149. He explained he discussed the case in class with his students. Id. He added he would bring in newspaper articles and play videos from media "every once in a while" and "kids would bring in news clippings from the paper." Id.
52. Prospective juror Fonfara had read the newspaper just prior to jury selection and read an interview of Biela's mother. Id. at 160. Similarly, prospective juror Snyder had read an article about Denison's mother on the first day of trial. Id. at 161. Prospective juror Olson read the same article. Id. Neither one thought it was inappropriate for the newspaper to print such an article on the day trial started. Id. Prospective juror Seaton saw the article, but did not read it. Id.
53. Prospective juror Graham "read some of the blogs" publishing information on the case. Id. at 162.
54. Prospective juror Morales followed the Denison case in the Reno Gazette Journal, CNN, local evening news, and "anything [he] could find." 05/11/2010 TT at 380-82. He explained he went "out of [his] way to go seek out media coverage" on the case. Id. at 381. He stated his mind was set and he would vote guilty irrespective of the evidence. Id. at 383.
55. In addition to media publicity, Reno's citizens brought attention and publicity to the case by organizing events, designed to raise awareness, and wearing or displaying blue ribbons in their cars and homes, meant to symbolize solidarity with Denison and her family. For example, prospective juror Glynn stated she wore a blue ribbon at a basketball game. 05/10/2010 TT at 167. She wore the ribbon to "rais[e] awareness at that game" and noted that "everybody was given ribbons to wear." Id. at 167-68. Prospective juror Virrey stated she placed a blue ribbon, gifted to her by a friend, in her car "to support [Brianna Denison's] family." Id. at 168. Likewise, prospective juror John noted he worked at the local community college and that he placed "blue ribbons up and down the fence." Id. at 169. Prospective juror Spellacy noted his family "tied a blue ribbon on our tree." Id. at 170. Prospective juror Ramos also tied a blue ribbon to a tree. Id. at 171. Prospective juror Ramirez' daughter placed a blue ribbon on the family car. Id.
56. Several jurors also noted observing and visiting the memorial created for Denison at the Prototype Drive and Sandhill Road field where Denison's body was found. Prospective juror Duenas-Demaya "took little candles" to the memorial and noted she wore a Denison button. Id. at 171-72. Duenas-Demaya further noted she was concerned her son would approach her and discuss the case. Id. at 166. Prospective juror Auclair described driving past the Prototype Drive field and, upon seeing the memorial, having slowed down and "looked at the things that people would place there." Id. at 173. Prospective juror Booker noted working near the memorial. Id. at 174. Prospective juror Shugar stated he worked near the memorial, "[s]o it was an everyday drive by." Id. at 174. He noted the memorial "really bothered [him]." Id.
57. A few prospective jurors demonstrated their prior familiarity with the case by noting friends and co-workers had been contacted by Reno police regarding the investigation and to obtain information. Id. at 176-77, 205. Prospective juror Anderson's friend had to provide a DNA sample. Id. at 176. Prospective juror Deandreis had a former roommate who had been asked to provide a DNA sample. Id. at 205. Prospective juror Morales had "pretty deep involvement with this case personally." 05/11/2010 TT at 375. When asked what he meant by involvement, Morales noted "[s]ome of it" pertained to knowing people involved and to "emotional attachment." Id. at 375-76. He noted Denison was an acquaintance of his sister. Id. at 379. He further explained his father ran the Reno Gazette Journal. Id. at 380. Prospective juror Adame informed the court, in the presence of the entire venire panel, that her brother was incarcerated with Biela. 05/10/2010 TT at 115. Prospective juror Indiano believed people in his office were concerned for the safety of a twenty-year-old female colleague.
58. On May 17, 2010, the trial court held a hearing to determine if Biela's sitting jury had been prejudiced by a member of the public who had yelled to the jury "give him the death penalty." 05/17/2010 TT at 1336. The trial court determined the jury had not been prejudiced. Id.
59. Following two days of jury selection, the following jurors were selected to hear Biela's trial: L. Olson, J. Indiano, J. Snyder, K. Fitzgerald, P. Dougherty, C. Spellacy, R. Andrews, C. Ellis, K. Seaton, T. Booker, D. Graham, F. Williams, A. Jimenez, R. Lundin. 05/11/2010 TT. at 521.
60. As evidenced by the comments made by prospective and selected jurors, pre-trial publicity prevented the trial court from impaneling a fair and impartial jury. Here, the trial court commented on the extent and nature of pre-trial publicity numerous times prior to and following Biela's trial. For example, in an April 28, 2010 pre-trial order, the trial court noted the public's "extremely strong feelings" and attached exhibits reproducing various blog comments denouncing Biela. 04/28/2010 General Order Concerning Procedure and Logistics at 3.
61. Following Biela's conviction, Judge Perry once more commented on the extent and nature of pre-trial publicity. Judge Perry met with jurors to thank them for their service. Upon juror Snyder expressing fear for his family's safety, Judge Perry told him not to worry and that, given the comments made by Reno residents online, he would have been in greater danger had be acquitted Biela. 06/02/2010 TT at 693-94. On June 25, 2010, the trial court entered a Supplemental Order Regarding Personal Juror Information. 06/25/2010 Supplemental Order Regarding Personal Juror Information. In the same, the trial court stated the case "was very highly publicized and generated an extreme amount of emotion in the community. Id. at 1. Attached to the Order, the trial court included letters from jurors expressing their desire to protect their personal information. See id. In his letter, juror Snyder noted: "I think the blog comments are evidence of the strong feelings that surround this case. . . ." Id. at He added, "[t]he fact that I would be on a trial with this level of local media coverage did not cross my mind." Id.
62. The jury selection process disclosed the existence of actual bias held by nearly every prospective juror on account of their exposure to pre-trial media publicity, local community events, and the conduct of Reno residents. Nevertheless, the trial court denied of Biela's motion to change venue and proceeded to trial, denying Biela his Sixth Amendment right to be tried by a fair and impartial jury. Biela's conviction by a jury that was incapable of being impartial constitutes structural error requiring reversal and a new trial.
63. Biela's conviction and sentence of death are invalid under the federal constitutional guarantees of due process and equal protection, the right to a fair trial and fair penalty hearing, the right to effective assistance of counsel, and the right to be free from cruel and unusual punishment because the trial court gave the jury erroneous and unconstitutional jury instructions during trial.
64. Several jury instructions given by the trial court were unconstitutional and erroneous misstatements of applicable law. Biela alleges that his convictions and death sentence are invalid because the jury instructions used in his case misstated the law, or would have led a reasonable juror to determine guilt and impose death in an unconstitutional manner.
65. The jury was instructed on the meaning of reasonable doubt pursuant to NRS 175.211 in both the guilt, Jury Instructions 7B and 29, and penalty phase, Jury Instruction 8, of the trial:
05/27/2020 at Instructions to the Jury No. 7B, 29; 06/02/2010 Instructions to the Jury at Instruction No. 8.
66. This instruction inflates the constitutional standard of doubt necessary for acquittal, and giving this instruction created a reasonable likelihood that Biela's jury would convict him and sentence him based on a lesser standard of proof than the constitution requires.
67. The second sentence defines reasonable doubt as "not mere possible doubt, but is such doubt as would govern or control a person in the more weighty affairs of life." This language provided an inappropriate characterization of the degree of certainty required to find proof beyond a reasonable doubt. It offered an explanation of reasonable doubt itself, not a standard by which reasonable doubt can be determined. As far as can be discerned, no other state currently uses this language in its reasonable doubt instruction, and the few states that previously used it have since disapproved it.
68. The final sentence of the instruction wherein it states "[d]oubt to [be] reasonable must be actual, not mere possibility or speculation" is also constitutionally infirm. This language was similar to language condemned by the United States Supreme Court and, when read in conjunction with the "govern or control" langue, created a reasonable likelihood that the jury would convict based upon a lesser degree of proof than the Constitution requires. The "actual, not mere possibility or speculation" language elevated the threshold for quantifying reasonable doubt. As a result, the jurors in Biela's case received instructions that improperly minimized the State's burden of proof.
69. The characterization of the proof standard as an "abiding conviction of the truth of the charge" does not cure the defects of the trial court's inaccurate statements about the reasonable doubt standard. That statement cannot be linked to any proper definition of the proof beyond a reasonable doubt standard. In conjunction with the language which immediately preceded this statement, it provided the State with an impermissibly low standard of proof.
70. The reasonable doubt instruction permitted the jury to convict and sentence Biela based on a lesser quantum of evidence than the federal and state constitutions require. This structural error is per se prejudicial, and no showing of specific prejudice is required. Alternatively, the error had a substantial and injurious effect in determining the jury's verdict.
71. Biela's constitutional rights were violated because the jury was not properly instructed to only determine the question of guilt during guilt-phase deliberations.
Jury instruction 29 provided:
05/27/2010 Instructions to the Jury at Instruction No. 29.
72. The trial court initially gave part of this instruction as a prepared statement during the first day of jury selection. 05/10/2010 TT at 33-35. However, instead of ending the statement by emphasizing that the jury will have to decide "whether or not it finds this an appropriate case for the death penalty," during jury selection, the trial court continued that "[a] sentence of death is not automatic, and the jury may impose a sentence of a definite term of 50 years, life with the possibility of parole, or life without the possibility of parole instead. Id. at 34-35.
73. Jury Instruction 29 invited the jury to convict on first-degree murder to get to a death penalty hearing. Indeed, the instruction informs the jury that in the "second phase" it will "separately decide whether or not if finds this is an appropriate case in which to impose the death penalty." The other possible sentences are absent from this instruction, which gears the second phase towards the death penalty.
74. Trial counsel agreed to this erroneous instruction and was ineffective for failing to challenge this instruction. See 4 ROA at 2422.
75. The failure to properly instruct the jury to only determine the question of guilt during the guilt-phase had a substantial and injurious effect on the jury's verdict.
76. Singly and cumulatively, the jury instructions failed to instruct a reasonable juror on the proper application of law. The jury instructions given to the jury in Biela's case, therefore, violated Biela's constitutional rights, and the error had a substantial and injurious effect on the outcome of the proceeding.
Biela's convictions and his sentence of death are invalid under the federal constitutional guarantees of due process and equal protection, the right to a fair trial and fair penalty hearing, and the right to be free from cruel and unusual punishment because there was insufficient evidence to support his conviction for Counts I through V. U.S. Const. amends. V, VIII, XIV.
1. Insufficient evidence was adduced before the jury to support its findings of guilt on the charges of sexual assault and kidnapping of Emma C., and sexual assault and murder of Denison. A verdict is supported by sufficient evidence if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, after viewing the evidence in the light most favorable to the prosecution.
2. Count II of the Information alleged that on December 16, 2007, Biela kidnapped and detained Emma C. for the purpose of committing a sexual assault. 12/19/2008 Information. Count III of the Information alleged that Biela sexually assaulted Emma C. Id.
3. Count IV of the Information alleged that on January 20, 2008, Biela murdered Denison "by means of asphyxia, due to or as a consequence of strangulation by ligature." Id. at 2-3. Count V of the Information alleged that Biela sexually assaulted Denison. Id. at 3.
4. The primary evidence linking Biela to the crimes against Emma C. and Denison was DNA evidence. However, the results of the DNA testing cannot be verified. The WCCL "consumed" every swab collected from Emma C. and Denison, as detailed extensively above. Consuming all the DNA evidence precluded independent verification of the results. 5/24/2010 TT at 3018. Dr. Miller characterized the consumption of the DNA extract as unjustified. Id. at 3020-21. When Chromosomal Labs tested the perineum swab stick, they found DNA material-allele 17-which belonged to neither Denison nor Biela. Id. at 3025-26.
5. Verification of WCCL's results was especially important in this case given that the State's case rested primarily on the DNA evidence and the laboratory was having issues with the quality control of their DNA kits. At the time this case was pending, the Washoe County Crime Lab had to stop performing any DNA testing and close the DNA division from December 14, 2009 until January 11, 2010, due to a problem with the reagents that they purchased. 05/14/2010 TT at 1140-46.
6. The State attempted to link Biela's vehicle to Emma C.'s description of her attacker's vehicle; however, fibers collected from Emma C.'s clothing were not consistent with the carpet fibers in Biela's Toyota Tacoma. A Toyota Tacoma fiber was found on Denison's sock; however, she rode in a friend's Toyota Tacoma on the night she was abducted. Emma C. described her attacker's car as "old-style" and "beat-up." She did not believe the vehicle had a manual transmission because she did not see a floor shifter, nor did she see her attacker make a shifting motion. Biela's vehicle was only a few years old and had a manual transmission with a floor shifter. Emma C. described the center console of her attacker's vehicle opening to the rear; however, the center console in Biela's vehicle opened to the side. Finally, the State could not place Biela at the location of Emma C.'s attack, as his cell phone was not in the area of the attack.
7. The evidence linking Biela to the attacks on Emma C. and Denison are suspect, because the DNA evidence could not be verified and there is no other evidence linking Biela to the crimes. Under the facts of this case, there is insufficient evidence to support the jury's finding on Counts II through V.
8. Insufficient evidence was adduced before the jury to support its finding of guilt on the charge of sexual assault on Amanda C. Count I of the Information alleged that on October 22, 2007, Biela sexually assaulted Amanda C. in the Brian J. Whalen Parking Complex at UNR with the use of a handgun. 12/19/2008 Information. At trial, Amanda C. testified that she was sexually assaulted by an unknown male in the parking garage. 05/14/2010 TT at 1206-26. She testified that the male grabbed her from behind and pulled her to the ground, straddling her, and placing a gun to her head. Id. at 1212-14. The perpetrator was wearing a sweatshirt with a hood pulled over his head, so she could not see his full face, "not very much at all." Id. at 1216. Amanda C. kept her eyes closed for most of the time when the man was on top of her. Id. at 1222.
9. The perpetrator ejaculated on Amanda, but after the assault she showered and threw her clothes away. Id. at 1222, 1226-28. Consequently, there was nothing of evidentiary value that was saved. At trial, the only evidence against Biela was Amanda C.'s identification of him as her assailant. Id. at 1225.
10. Amanda C.'s identification of Biela as the assailant is suspect. The sexual assault occurred on October 22, 2007; however, she did not report the assault until four months later, on January 29, 2008, after reports of Denison's possible abduction had blanketed the local news and media outlets. Id. at 1231-32. Indeed, Amanda C. agreed to cooperate with the police because, "there was something bigger than myself at hand; it was more than just me at that point." Id. at 1239. She produced a sketch with a police sketch artist
11. After Denison's body was discovered, Amanda C. told her parents about her sexual assault "in the event that something like this would happen or they caught him, they would be award." 5/14/2010 TT at 1238 (emphasis added). Clearly, Amanda C. believed that her assault was tied to Denison's case. Despite admitting that she did not see her assailant's face, that she closed her eyes during most of the assault, and before a suspect was identified in Denison's case, Amanda C. decided that the suspect in Denison's case was also her assailant.
12. On November 25, 2008, Amanda C.'s parents told her a suspect was arrested in Denison's case. Id. at 1237-38. When she looked at the photos of Biela she concluded that he was also her assailant. Id. at 1238. She was so certain that Biela assaulted her that detectives never had her look at a photo lineup. Id. at 840-43. Detective Jenkins explained that Amanda
Id. at 842. Amanda C. identified Biela as her assailant after first deciding that Denison's murderer was also her assailant.
13. The Denison case was extremely well known in Northern Nevada. There were blue ribbons to signify her all over the local landscape and a foundation to "Bring Bri Justice" was established. The local media was relentless in reporting any new scrap of information associated with the case, first as it pertained to her as a missing person or abducted person, and then, after her body was discovered as it pertained to her abductor and killer.
14. As part of the investigation surrounding Denison, police became aware of Amanda C. and sought her cooperation. Amanda C. ultimately gave information to the police and helped them develop a sketch of a suspect. She knew that the police sketch that she helped create was being used by the police in the Denison investigation. She told her parents about her assault only after Denison's body was discovered and tied her experience to Denison's. Her parents contacted her when they saw news accounts that Biela was arrested in connection with Denison's case. Amanda C.'s identification of Biela occurred in this atmosphere surrounding Denison's death. Given these circumstances and her personal investment in the Denison case, it is possible that Amanda C. would have identified any one arrested in that case as her assailant.
15. Other than Amanda C.'s identification testimony there was no other evidence that connected Biela to her sexual assault.
16. Under the facts of this case, there is insufficient evidence to support the jury's finding in Count I—sexual assault of Amanda C.
Biela's conviction is invalid under the federal constitutional guarantees of due process, a fair trial, and the effective assistance of counsel on direct appeal due to the failure of his appellate counsel to perform within the range of professional conduct expected in capital cases. U.S. Const. amends. V, VI, VIII, XIV.
Biela had a constitutional right to be represented by competent counsel on appeal. Counsel's representation during direct appeal fell below an objective standard of reasonableness. As a result, Biela's conviction is invalid under the federal constitutional guarantees of due process and a fair trial.
On August 18, 2010, Biela, through the Washoe County Public Defender, filed a timely notice of his appeal from his judgment of conviction entered that same day. 08/18/2010 Notice of Appeal. On March 28, 2011, Chief Deputy Public Defender John Reese Petty filed Appellant's Opening Brief raising a total of eleven issues for review. 03/28/2011 Appellant's Opening Brief.
Despite trial counsel litigating and preserving the issue prior to trial, appellate counsel failed to challenge the trial court's refusal to change venue. As referenced above, the jury's exposure to media and other community-generated publicity was evidenced by countless statements made the course of jury selection. During jury selection, Deputy District Attorney Sattler asked: "How many people have actually followed the case in some way or other on TV? And by followed it, I mean, you kind of keep up with it." 05/10/2010 TT at 146. In response to the jury pool's reaction, Sattler noted: "Most hands are up. All right." Id. Prospective jurors proceeded then to describe the various ways in which they were exposed to pre-trial publicity with several individuals noting they were unable to remain fair and impartial on account of that exposure. In fact, media publicity was so prevalent that trial judge Robert H. Perry, noted, during a pre-trial hearing, that he had received an in-chambers call from an employee of the Nevada Supreme Court named Bill Gang to advise him regarding media access given the amount of publicity received by the case. 05/07/2010 Transcript of Hearing on Activity During Trial at 49-51 During a subsequent in-chambers meeting, Judge Perry disclosed he had received a second call from the same individual who had threatened him should the judge not follow his advice. 05/11/2010 TT at 533-34.
The trial court also commented on the extent and nature of pre-trial publicity in an April 28, 2010 pre-trial order where it noted the public's "extremely strong feelings" and attached exhibits of various blog comments posted by citizens of Reno. 04/28/2010 General Order Concerning Procedure and Logistics at 3. Following Biela's conviction, Judge Perry once more commented on the extent and nature of pre-trial publicity. 06/02/2010 TT at 693-94. On June 25, 2010, the trial court entered a Supplemental Order Regarding Personal Juror Information. 06/25/2010 Supplemental Order Regarding Personal Juror Information. In the same, the trial court notes the case "was very highly publicized and generated an extreme amount of emotion in the community." Id. at 1. Attached to the Order, the trial court included letters from jurors expressing their desire to protect their personal information. See id. In his letter, juror Snyder noted: "I think the blog comments are evidence of the strong feelings that surround this case. . . ." Id. at He added, "[t]he fact that I would be on a trial with this level of local media coverage did not cross my mind." Id.
There can be no valid strategic reason for appellate counsel's failure to raise the trial court's error in denying Biela's motion to change venue. The record was rife with evidence that the trial court failed impanel a fair and impartial jury. There is a reasonable probability that if this claim had been raised on direct appeal, the Nevada Supreme Court would have granted Biela a new trial.
On September 21, 2009, defense counsel filed a motion to suppress "evidence of any DNA tests in which the entire suspect sample has been consumed[] and cannot be retested. . . ." 09/21/2009 Mtn. to Suppress at 15. The trial court denied the motion on the mistaken assumption that DNA extract that purportedly remained would enable Biela to adequately conduct independent tests. In its order, the court noted:
Id. at 1. However, whether DNA extract remained or not, the trial court's findings were wrong. The State's consumption of over 20 DNA swabs "precluded [Biela] from being able to retest [DNA samples] at least from the starting point, which is from doing the extractions and so forth." 05/24/2010 TT at 3018. The trial court clearly erred in denying Biela's motion. Despite the trial court's error, appellate counsel failed to raise the claim in Biela's opening brief.
Counsel's failure to raise the above-described meritorious claims prejudiced Biela because it resulted in the loss of direct review of the trial court's decisions. But for counsel's errors, there is a reasonable probability that Biela's direct appeal would have reached a different result.
Biela's conviction and sentence of death are invalid under the federal constitutional guarantees of due process and equal protection, the right to effective assistance of counsel, the right to a fair trial, a fair and impartial jury, a fair tribunal, a reliable sentence, and the right to be free from cruel and unusual punishment because of the cumulative effect of the error in this case. U.S. Const. amends. V, VI, VIII, XIV.
1. Each of the errors discussed in this petition and its exhibits independently mandates relief. Even if that were not the case, however, the aggregate effect of these violations considered cumulatively rendered the trial fundamentally unfair and a violation of due process, warranting habeas relief. In addition, the cumulative effects of the trial court errors, combined with the cumulative effects of counsel's ineffectiveness and prosecutorial misconduct, deprived Biela of a fair trial. For example, the trial court erred by refusing to sever the trials. This error was exacerbated by Amanda C.'s unreliable identification testimony. Both these errors individually and cumulatively violated Biela's constitutional rights.
2. These errors also violated Biela's right to an individualized sentencing decision, as required by the Eighth Amendment. The cumulative effect of the errors in this case prevented the jury from fully considering all the relevant evidence of mitigation. This was error under the Eighth Amendment.
3. Fundamentally, the errors in Biela's trial prevented a fair trial. Considering these substantial problems, it is impossible to conclude that the jury actually found Biela guilty or deserving of the death penalty under a valid theory. The cumulative effect of the errors in this case had a substantial and injurious effect on these proceedings. Thus, Biela is entitled to relief.
I understand that a false statement or answer to any question in this declaration will subject me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See, 28 U.S.C. § 1746 and 18 U.S.C. § 1621.
