## Facts

- Vernell Ray Evans was convicted of burglary and four counts of first-degree murder arising from shootings in a Las Vegas apartment on May 1, 1992.
- Police responding around 1:00 a.m. found four victims dead: Jermaine Woods, Steven Walker, Lisa Boyer, and Samantha Scotti.
- Four-year-old Adriana Ventura was in the apartment, witnessed the shootings, and later testified at trial when she was six.
- Adriana testified that two armed men entered; she referred to them as “Scary Eyes” and “Little Ray,” and described shootings of the victims in different rooms.
- Adriana could not recall some details (including which intruder fired which shots and how the men left), but reported the killings immediately afterward to her mother and neighbors.
- Additional evidence included testimony about prior threats attributed to Evans toward at least one occupant of the apartment.
- After affirmance on direct appeal, Evans filed a post-conviction habeas petition alleging constitutional violations, principally ineffective assistance of trial and appellate counsel and related claims about the guilt and penalty phases.
- The district court denied the petition without an evidentiary hearing, and Evans appealed.

## Issues

1. Whether Evans alleged specific facts that, if true and not refuted by the record, entitled him to an evidentiary hearing on post-conviction habeas claims.
2. Whether trial and appellate counsel provided ineffective assistance by failing to challenge allegedly improper prosecutorial arguments during the penalty phase of the capital trial.
3. Whether any other post-conviction claims required relief from the convictions or death sentences.

## Decision

- The Nevada Supreme Court affirmed the denial of post-conviction relief as to Evans’s convictions, concluding most claims did not warrant an evidentiary hearing.
- The court held trial and appellate counsel were ineffective for failing to challenge improper prosecutorial penalty-phase argument.
- The court vacated Evans’s death sentences and remanded for a new penalty hearing.

## Legal Principles

- A post-conviction habeas petitioner is entitled to an evidentiary hearing only when the petition alleges specific facts which, if true, would entitle the petitioner to relief and are not repelled by the record; conclusory or record-contradicted claims may be denied on the pleadings.
- Ineffective assistance of counsel requires (1) deficient performance and (2) prejudice, meaning a reasonable probability that, but for counsel’s errors, the result would have been different.
- In a capital case, counsel may be ineffective for failing to object to, or raise on appeal, improper penalty-phase prosecutorial argument that may distort the jury’s weighing of aggravating and mitigating circumstances or otherwise inflame the sentencing determination.
- Relief may be limited to the sentencing phase when the constitutional error affects the penalty determination but does not undermine confidence in the guilt-phase verdict.

## Conclusion

The court left Evans’s burglary and first-degree murder convictions intact, finding his non-sentencing habeas allegations insufficient to require an evidentiary hearing, but ordered a new penalty hearing because counsel’s failure to challenge improper prosecutorial sentencing argument undermined confidence in the death verdicts.


Evans v. State, 28 P.3d 498 (Nev. 2001)