First, appellant claimed that appellate counsel was ineffective
for failing to argue that the charge of destroying evidence should not have
been joined with the charges of attempted robbery and battery causing
substantial bodily injury. Appellant failed to demonstrate that appellate
counsel was deficient or that he was prejudiced because he failed to
demonstrate that this claim had a reasonable probability of success on
appeal. Evidence from the destroying-evidence case was cross-admissible
in the attempted robbery and battery-causing-substantial-bodily-injury
case, and vice versa, and the crimes were connected together. Mitchell v.
State, 105 Nev. 735, 738, 782 P.2d 1340, 1342 (1989); NRS 173.115(1)-(2).
Therefore, the district court did not err in denying this claim.
Second, appellant claimed that appellate counsel was
ineffective for failing to argue that appellant's conviction was void because
he was without counsel during his arraignment on the charge of
destroying evidence and the district court did not read the indictment to
him. Appellant failed to demonstrate that appellate counsel was deficient
or that he was prejudiced because he failed to demonstrate that this claim
had a reasonable probability of success on appeal. While it appears
correct that appellant was not formally represented by counsel at the
arraignment on the charge of destroying evidence, the public defender's
office was there during the hearing and was informally representing him
at the time because it was also representing him on the charges of
attempted robbery and battery causing substantial bodily injury. 2
Further, while the district court did not read the indictment to appellant,
2We note that the public defender's office made arguments on behalf
of appellant at the hearing regarding the joinder of the two cases. At the
end of the hearing, the district court appointed the public defender's office
to represent appellant on the destroying-evidence case.
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it was clear that he had a copy of the indictment and understood it as he
attempted to make a challenge to the indictment at the arraignment.
Therefore, the district court did not err in denying this claim.
Third, appellant claimed that appellate counsel was ineffective
for failing to argue that the district court erred by allowing the State to
amend and re-word the information for the charge of destroying evidence
before and during trial. Further, he claimed that appellate counsel was
ineffective for failing to argue that the amending of the information was
prosecutorial misconduct and for failing to argue that a jury instruction
regarding aiding and abetting should not have been given. Appellant
failed to demonstrate that appellate counsel was deficient or that he was
prejudiced because he failed to demonstrate that these claims had a
reasonable probability of success on appeal. After appellant was indicted
and prior to trial, the State added two theories of how appellant destroyed
evidence: conspiracy and aiding and abetting. During trial, the State
amended the information to delete the theory of conspiracy. Appellant
failed to demonstrate that an additional or different offense was charged
or that his substantial rights were prejudiced by the State adding a theory
of the offense. NRS 173.095(1). Therefore, the district court did not err in
denying these claims.
Fourth, appellant claimed that appellate counsel was
ineffective for failing to argue that the charge of battery causing
substantial bodily injury was unconstitutionally vague. Further, he
claimed that appellate counsel was ineffective for failing to argue that the
State should have included the definition of substantial bodily injury in
the information and that it was error to include jury instructions
regarding battery causing substantial bodily injury. Appellant failed to
demonstrate that appellate counsel was deficient or that he was
prejudiced because he failed to demonstrate that these claims had a
3
MEM!
reasonable probability of success on appeal. This court has previously
concluded that the term "prolonged physical pain" was not
unconstitutionally vague. Collins v. State, 125 Nev. 60, 65, 125 P.3d 90,
93 (2009). Moreover, appellant failed to make any cogent argument that
the term "serious, permanent disfigurement" was unconstitutionally
vague. Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Further,
the information sufficiently informed appellant of the elements of battery
causing substantial bodily injury. See NRS 200.481(2)(b). NRS 0.060
merely defines substantial bodily injury. Finally, appellant failed to
demonstrate that appellate counsel erred by failing to attack the jury
instructions regarding battery causing substantial bodily injury.
Therefore, the district court did not err in denying these claims.
Fifth, appellant claimed that appellate counsel was ineffective
for failing to argue that the district court erred by denying his motion to
suppress. Specifically, appellant claimed that he was arrested prior to the
police officer having probable cause. Appellant failed to demonstrate that
appellate counsel was deficient or that he was prejudiced because he failed
to demonstrate that this claim had a reasonable probability of success on
appeal. Appellant was detained after he was found less than a mile from
the crime scene because he matched the description given by the victim
and appeared to have blood on his shirt. He was stopped by one officer
who feared that appellant might be dangerous and was handcuffed. A
short time later, the victim was brought to the scene of the detainment
and identified appellant as the assailant. At this time, appellant was
arrested. Based on the above facts, the detention was not an arrest
because the police officer had reasonable articulable suspicion that
appellant had committed a crime, Somee v. State, 124 Nev. 434, 442, 187
P.3d 152, 158 (2008), and a detention does not become a de facto arrest
SUPREME COURT merely because a defendant is placed in handcuffs. State v. McKellips, 118
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Nev. 465, 471, 49 P.3d 655, 660 (2002) (stating that a detention does not
become a de facto arrest merely because a defendant is placed in a police
car). Therefore, the district court did not err in denying this claim.
Sixth, appellant claimed that appellate counsel was ineffective
for failing to argue that the district court erred by denying appellant's
second motion for discovery. Specifically, appellant wanted the victim's
un-redacted medical records regarding his social anxiety disorder and use
of Xanax. Appellant failed to demonstrate that appellate counsel was
deficient or that he was prejudiced because he failed to demonstrate that
the claim would have a reasonable probability of success on appeal.
Appellant elicited testimony at trial regarding the victim's social anxiety
disorder and the fact that the victim was prescribed and took Xanax. He
failed to demonstrate what effect further information regarding these
subjects would have had at trial. Therefore, the district court did not err
in denying this claim.
Seventh, appellant claimed that appellate counsel was
ineffective for failing to argue that the district court erred by denying his
request for a cautionary jury instruction regarding the victim's
intoxication at the time of the crime. Further, he claimed appellate
counsel should have challenged the jury instruction regarding witness
credibility. Appellant failed to demonstrate that counsel was deficient or
that he was prejudiced because appellant failed to demonstrate that these
claims had a reasonable probability of success on appeal. At the time of
settling the jury instructions, appellant did not request or provide such an
instruction. Further, there was another instruction that discussed
witness credibility and appellant failed to demonstrate that instruction
was incorrect. Therefore, the district court did not err in denying these
claims.
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Eighth, appellant claimed that appellate counsel was
ineffective for failing to argue that the district court erred by giving jury
instructions 19, 21, and 28 because the district court overruled too many of
his objections, the State wrongly elicited testimony about his prior
convictions, and that the district court did not correctly handle a jury
question after the close of evidence. 3 Appellant failed to demonstrate
appellate counsel was deficient or that he was prejudiced because he failed
to argue that these instructions were erroneously given to the jury.
Therefore, the district court did not err in denying these claims.
Ninth, appellant claimed that appellate counsel was
ineffective for failing to argue that the district court erred by giving jury
instruction 25, the flight instruction. Appellant failed to demonstrate
appellate counsel was deficient or that he was prejudiced. Appellant failed
to demonstrate that this claim had a reasonable probability of success on
appeal because the State presented evidence of flight and the record
supports the conclusion that the defendant fled with consciousness of guilt
and to evade arrest. See Rosky v. State, 121 Nev. 184, 199, 111 P.3d 690,
699-700 (2005). Therefore, the district court did not err in denying this
claim.
Tenth, appellant claimed that appellate counsel was
ineffective for failing to argue that the district court erred by denying his
motion for a competency evaluation of the victim. Appellant failed to
demonstrate that appellate counsel was deficient or that he was
prejudiced because he failed to demonstrate that this claim had a
reasonable probability of success on appeal. While the victim may have
been intoxicated at the time of the altercation, every person is competent
3 We
note that appellant requested instruction 21 and did not object
to the district court giving instructions 19 and 28.
6
to be a witness. NRS 50.015. Further, the State introduced evidence that
demonstrated that the victim had personal knowledge of the incident,
NRS 50.035, and the victim's inconsistent statements created issues of
credibility not competency. Therefore, the district court did not err in
denying this claim.
Eleventh, appellant claimed that appellate counsel was
ineffective for failing to federalize the claims that were raised on direct
appeal. Appellant failed to demonstrate that appellate counsel was
deficient or that he was prejudiced. Appellant failed to demonstrate that
he would have gained a more favorable standard of review on direct
appeal had appellate counsel federalized the arguments. See Browning v.
State, 120 Nev. 347, 365, 91 P.3d 39, 52 (2004). Therefore, the district
court did not err in denying this claim.
Twelfth, appellant claimed that appellate counsel was
ineffective for failing to argue that the district court erred by denying
appellant's motion to dismiss the third amended information. Specifically,
appellant claims that because a deputy district attorney signed the
information rather than the district attorney, the third amended
information was void. Appellant failed to demonstrate that appellate
counsel was deficient or that he was prejudiced as he failed to demonstrate
that this claim had a reasonable probability of success on appeal. It was
not error for the deputy district attorney to sign the information because
the district attorney may delegate any and all duties other than
policymaking to his or her deputies. See NRS 252.070(1). Therefore, the
district court did not err in denying this claim.
Thirteenth, appellant claimed that appellate counsel was
ineffective for failing to argue that he should not have been sentenced as a
habitual criminal. Appellant claimed that appellate counsel should have
SUPREME COUFtT argued that the Faretta canvass was inadequate because he was not
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EIMMINIMENENIEENSIME
informed that the sentences could be run consecutive and because, five
days prior to trial, he wanted standby counsel to take over and handle the
trial. Faretta v. California, 422 U.S. 806 (1975). Appellant failed to
demonstrate that appellate counsel was deficient or that he was
prejudiced because he failed to demonstrate that this claim had a
reasonable probability of success on appeal. Neither of these arguments
go to whether it was proper for the district court to sentence appellant as a
habitual criminal. Appellant was given proper notice of the habitual
criminal enhancement, was canvassed regarding the habitual criminal
enhancement during the Faretta canvass, and had the requisite prior
convictions. Therefore, the district court did not err in denying this claim.
Fourteenth, appellant claimed that appellate counsel was
ineffective for failing to argue that his sentence was illegal. Appellant
failed to demonstrate that appellate counsel was deficient or that he was
prejudiced because he failed to demonstrate that his sentence was illegal.
Appellant previously filed a motion to correct an illegal sentence raising
the same issues and this court concluded that he failed to demonstrate
that his sentence was illegal. Williams v. State, Docket No. 59821 (Order
of Affirmance, February 12, 2013). Therefore, this claim is barred by
doctrine of law of the case, Hall v. State, 91 Nev. 314, 315-16, 535 P.2d
797, 798-99 (1975), and the district court did not err in denying this claim.
Fifteenth, appellant claimed that appellate counsel was
ineffective for failing to communicate with appellant regarding what
claims to raise on appeal. Appellant failed to demonstrate that appellate
counsel was deficient or that he was prejudiced. Appellant's own letters
provided in support of his petition demonstrate that counsel and appellant
communicated several times during the appeal and we note that counsel
incorporated several of appellant's arguments listed in the letters. As
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argument on appeal. Therefore, the district court did not err in denying
this claim.
Finally, appellant claimed that appellate counsel was
ineffective for withdrawing prior to this court's decision on his appeal.
Specifically, appellant claimed that appellate counsel's withdrawal caused
him to not be able to file a reply brief. Appellant failed to demonstrate
that appellate counsel was deficient or that he was prejudiced. While the
district court did grant appellant's motion to withdraw counsel during the
pendency of appellant's direct appeal, this court denied appellant's motion
to withdraw counsel. A motion for withdrawal of counsel during the
pendency of an appeal must be filed in the Supreme Court. NRAP 46(c).
Therefore, the district court erred by granting that motion and it did not
affect the appeal. Further, appellant failed to demonstrate a reasonable
probability of success on appeal had he been able to file a reply brief.
Therefore, the district court did not err in denying this claim. Accordingly,
we
ORDER the judgment of the district court AFFIRMED. 4
19
004
J.
Douglas aitta
4We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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cc: Hon. Kathleen E. Delaney, District Judge
Michael Leon Williams
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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