“Hedging Is Not a Concession” – The Nevada Supreme Court Clarifies When Trial Counsel’s Reference to a Lesser-Included Offence Triggers McCoy-Type Error

Introduction

In Coddington (Ryan) v. Warden, No. 86527 (Aug. 14, 2025), the Supreme Court of Nevada affirmed the denial of Ryan Joe Coddington’s post-conviction petition for a writ of habeas corpus. The case arises from Coddington’s conviction for first-degree murder with use of a deadly weapon and a life-without-parole sentence imposed after a jury found that he killed Alea Clark with a hatchet, burned her body, and concealed the remains.

On appeal Coddington advanced a catalogue of ineffective-assistance-of-counsel (IAC) claims and argued cumulative error. The most novel issue confronted whether trial counsel’s statement during closing argument that manslaughter “was the only crime that could have potentially been proven” amounted to an unauthorized concession of guilt under McCoy v. Louisiana, 584 U.S. 414 (2018), thereby triggering structural error. The Nevada Supreme Court rejected that assertion and articulated a workable boundary between legitimate “hedging” and the sort of affirmative concession that requires a client’s explicit approval.

Summary of the Judgment

Applying the familiar two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), the Court held:

No actual conflict of interest existed between defense counsel Brad Johnston and the trial judge.
Failure to object to unrecorded bench conferences, stipulation to certain exhibits, tactical decisions about scientific testing, and strategic choices concerning self-defense theory, mitigation evidence, and expert retention did not constitute deficient performance or cause prejudice.
Counsel’s fleeting reference to manslaughter was not a concession of guilt; therefore, the structural-error framework of McCoy did not apply. The claim had to be analyzed under ordinary Strickland principles, which the petitioner failed to satisfy.
Because only a single instance of deficiency was shown (counsel’s inadvertent inclusion of a power-of-attorney document), cumulative-error analysis offered no relief.

Accordingly, the Court affirmed the district court’s denial of post-conviction relief.

Analysis

1. Precedents Cited

Strickland v. Washington, 466 U.S. 668 (1984) – Governs ineffective-assistance claims.
McCoy v. Louisiana, 584 U.S. 414 (2018) – Holds that counsel may not concede guilt over a defendant’s “intransigent objection,” constituting structural error when violated.
Florida v. Nixon, 543 U.S. 175 (2004) – Clarifies that if a defendant is informed yet unresponsive, counsel’s concession strategy is not automatically defective.
Johnson v. State, 133 Nev. 571 (2017); Kirksey v. State, 112 Nev. 980 (1996) – Nevada applications of Strickland.
Conflict-of-interest precedents: Clark v. State, 108 Nev. 324 (1992); Nevada Rules of Professional Conduct 1.7 & 1.8.
Bench-conference recording requirement: Preciado v. State, 130 Nev. 40 (2014).

Each of these authorities supplied discrete legal tests the Court methodically applied to the factual record developed at the evidentiary hearing.

2. Legal Reasoning

The Court’s opinion is structured around discrete IAC sub-claims, but a unifying theme is judicial deference to reasonable strategic choices:

Conflict-of-Interest: The Court demanded proof of a contemporaneous, not merely historical, business relationship between counsel and the judge. None existed, so the “divided loyalty” threshold was not met.
Unrecorded Bench Conferences: Even if some sidebar discussions were unrecorded, appellant failed to show inability to raise issues on direct appeal. Absent prejudice, no relief lies.
Evidentiary Stipulations: Strategic stipulations to an autopsy-based death certificate and other documents were reasonable because the records were prima facie admissible under multiple hearsay exceptions, and objecting ran the risk of appearing obstructionist before the jury.
Scientific & Investigative Choices: Decisions not to conduct acoustic testing, to allow disassembly of the hatchet, and to forego a separate bone-markings expert were held within the wide latitude afforded to trial counsel. The Court emphasized that counsel leveraged the negative DNA results from the hatchet to the defense’s advantage.
Self-Defense & Mitigation: Because Clark was asleep and unarmed, evidence did not support an imminent-threat theory. The Court viewed defense counsel’s decision to attack the prosecution’s burden instead as “virtually unchallengeable.” Similar logic applied to mitigation evidence: piling on proof of Clark’s alleged violence or Coddington’s drug history might have backfired.
The “Concession of Manslaughter” Issue: Here the Court forged the most significant doctrinal clarification. It drew a qualitative distinction between (a) an explicit admission of culpability (“my client is guilty”) – which would trigger McCoy structural error if made over the client’s objection – and (b) a defensive “hedge” suggesting that the State proved, at most, a lesser-included offense. The latter, the Court ruled, continues to be governed by Strickland, placing the burden on the petitioner to show deficiency and prejudice.

3. Impact of the Judgment

The decision’s practical reach extends beyond the parties for three reasons:

Clarifies Scope of McCoy: Trial lawyers frequently consider limited concessions or fallback positions in closing argument. Coddington makes clear that McCoy does not automatically bar such approaches. Only an unequivocal concession of guilt to the charged offense, made over a defendant’s express objection, constitutes structural error.
Guidance on Stipulations & Testing: By endorsing counsel’s strategic stipulations and selective forensic testing, the Court reinforces that Strickland does not condemn “failures” that are, in hindsight, simply alternative strategic choices.
Lone-Error Floor for Cumulative Prejudice: The Court expressly joined federal circuits in holding that where only one instance of deficiency exists, cumulative-error analysis is unavailable (Allen). This will shape how petitioners frame future IAC pleadings in Nevada.

Complex Concepts Simplified

Ineffective Assistance of Counsel (IAC) – A claim that a defense lawyer performed so badly that the defendant did not receive a fair trial. To win, a petitioner must prove (1) deficient performance and (2) prejudice — a reasonable probability that the result would have been different.
Conflict of Interest – A situation where an attorney’s personal or financial ties might compromise loyalty to the client.
Structural Error – A fundamental flaw (e.g., denial of counsel) requiring automatic reversal without a showing of prejudice.
Concession Strategy – A defense tactic where counsel acknowledges certain wrongdoing to preserve credibility or focus on more favorable issues (e.g., degree of guilt or punishment).
Lesser-Included Offense – A crime whose elements are entirely contained within a more serious offense; e.g., manslaughter is a lesser-included offense of first-degree murder.

Conclusion

Coddington v. Warden is not merely another post-conviction affirmance; it carves out an important doctrinal clarification: A defense lawyer’s tactical suggestion that the jury might opt for a lesser-included offense is not a per se concession of guilt under McCoy. Unless the defendant expressly forbids such a strategy, courts will continue to evaluate it under the deferential Strickland framework.

Beyond that holding, the judgment underscores Nevada’s steady adherence to (1) presuming counsel’s competence, (2) demanding concrete proof of prejudice, and (3) refusing cumulative-error relief where only isolated deficiencies exist. Practitioners should heed the Court’s message: successful post-conviction claims must be rooted in demonstrable, outcome-determinative failings — second-guessing tactical calls will seldom suffice.