adequate investigation must specify what a more thorough investigation
would have revealed. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533,
538 (2004).
First, appellant argues that counsel was ineffective for failing
to obtain a psychological evaluation of appellant. Appellant's bare claim
has failed to demonstrate deficiency or prejudice. Appellant's claim below
was that counsel should have obtained a psychological evaluation because
appellant was only 16 years old when he committed the crime. While a
defendant's age is a relevant factor at sentencing, appellant provides no
authority in support of his apparent contention that counsel is per se
deficient where he does not seek a psychological evaluation just because a
defendant is a minor.' Moreover, appellant admitted that he did not know
what information a psychological evaluation would produce, merely
speculating that it would result in "classic mitigation evidence." Because
he did not indicate what a more thorough investigation into mitigation
evidence would have revealed, appellant failed to state specific facts that
would demonstrate a reasonable probability of a different outcome had an
evaluation been completed. We therefore conclude that the district court
did not err in denying this claim without an evidentiary hearing.
Second, appellant argues that counsel was ineffective for
failing to present mitigation evidence at sentencing. Appellant has failed
'On appeal, appellant points to information contained in the
presentence investigation report and suggests that it may have been a
basis for counsel to seek the evaluation. This is new argument not
presented to the district court below, and we need not consider it on
appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991),
overruled on other grounds by Means v. State, 120 Nev. 1001, 1012-13, 103
P.3d 25, 33 (2004).
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to demonstrate deficiency or prejudice. Appellant's claim below that
counsel failed to present "any mitigating factors" was belied by the record.
In mitigation, counsel submitted ten letters of support and repeatedly
referred to appellant's youth at the time of the crime. Moreover, appellant
failed to specify in his petition below what additional mitigation
information counsel should have uncovered and how there was a
reasonable probability of it affecting the outcome of the sentencing
hearing. 2 We therefore conclude that the district court did not err in
denying this claim without an evidentiary hearing. 3
Appellant next argues that the district court abused its
discretion in denying his motion for funds to obtain a psychological
evaluation in order to seek additional mitigating evidence that counsel
should have presented to the sentencing court. Appellant failed to provide
this court with a copy of his motion or the district court's denial of the
motion. We are thus precluded from reviewing the district court's
disposition and, therefore, conclude that the district court did not err in
denying the motion. See State u. Eighth Judicial Dist. Court, 100 Nev. 90,
102, 677 P.2d 1044, 1052 (1984) (presuming the propriety of district court
actions in the absence of a showing of error); Greene v. State, 96 Nev. 555,
2 Tothe extent that appellant has specified additional mitigation
evidence on appeal, it is new argument that was not presented below, and
accordingly, we need not consider it on appeal. See id. Moreover, much of
the mitigation evidence to which appellant points was contained in the
presentence investigation report, which the sentencing court stated it had
reviewed and considered.
sTo the extent that appellant claims counsel was ineffective for any
other reason, the argument was not raised before the district court, and
we need not consider it on appeal. See id.
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558, 612 P.2d 686, 688 (1980) ("The burden to make a proper appellate
record rests on appellant.").
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
Saitta
cc: Hon. Carolyn Ellsworth, District Judge
Langford McLetchie LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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