First, appellant argues that counsel was ineffective for failing
to engage in pretrial discovery, because had counsel done so, he would
have obtained the surveillance video from the shoe store. Appellant has
failed to demonstrate deficiency or prejudice. The district court's finding
that the video was destroyed before appellant was arrested or counsel was
appointed is supported by substantial evidence in the record, Appellant
thus failed to demonstrate that counsel's performance was deficient in not
obtaining a video that had already been destroyed. Moreover, because
several witnesses had viewed the video before it was destroyed in the
store's ordinary course of business and testified that it depicted appellant
purchasing merchandise with the stolen credit card, appellant cannot
demonstrate a reasonable probability of a different outcome had the video
been available. 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
violating appellant's right to a speedy trial. Appellant has failed to
demonstrate deficiency or prejudice. This court has previously held that
appellant's right to a speedy trial was not violated, Ross v. State, Docket
No. 52921 (Order of Affirmance, November 8, 2010), and that holding is
the law of the case, Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-
99 (1975). Thus appellant cannot demonstrate that any action or inaction
of counsel violated the right. Moreover, appellant's claim that he was
prejudiced because the delayed trial resulted in the loss of the shoe store
surveillance video was patently without merit where the video was
destroyed before appellant was arrested and was thus unavailable for trial
regardless of when it was held. We therefore conclude that the district
court did not err in denying this claim without an evidentiary hearing.
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Third, appellant argues that counsel was ineffective because a
communication breakdown prevented appellant from being able to assist
counsel in the preparation of his defense, including explaining his conduct
or offering any potential alibis. Appellant has failed to demonstrate
deficiency or prejudice. The only specific information appellant alleged
was regarding his alibi for the theft at the Santa Fe casino, but the State
moved to dismiss those charges before trial such that, even if his claims
were true, appellant could not demonstrate a reasonable probability of a
different outcome had there been better communication. Appellant
otherwise failed to specify what explanation or alibi he would have given
counsel or how it would have affected the outcome at trial. See
Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984) (holding
that a petitioner is not entitled to an evidentiary hearing where his claims
are unsupported by specific factual allegations that, if true, would have
entitled him to relief). We therefore conclude that the district court did
not err in denying this claim without an evidentiary hearing.
Fourth, appellant argues that counsel was ineffective for
failing to object to expert testimony pertaining to pickpockets and
distraction thefts where the witness was not noticed as an expert.'
Appellant has failed to demonstrate deficiency or prejudice. Appellant
made only a bare allegation that the detective's testimony amounted to
expert opinion. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6
'Appellant's opening brief refers to transcript pages containing the
testimony of Detective Rader. However, Detective Rader did not testify to
the allegedly objectionable facts. Rather, Detective Flenner did, and
appellant's petition and supplement below both raise this claim in
conjunction with Detective Flenner. Accordingly, our analysis of this
claim is in regard to the testimony of Detective Flenner.
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(1987) ("It is appellant's responsibility to present relevant authority and
cogent argument; issues not so presented need not be addressed by this
court."). Further, even assuming that the detective did give expert
testimony that was not noticed pursuant to NRS 174.234(2), appellant
made no allegation that the omission was made in bad faith such that the
district court would have excluded the testimony. See NRS 174.234(3)(b).
We therefore conclude that the district court did not err in denying this
claim without an evidentiary hearing.
Fifth, appellant argues that counsel was ineffective for failing
to retain a defense expert to rebut the expert testimony of Detective
Flenner. Appellant has failed to demonstrate deficiency or prejudice.
Appellant, who acknowledges that Detective Flenner was not noticed as
an expert witness, has failed to demonstrate that counsel was objectively
unreasonable in failing to anticipate the testimony and retain a defense
expert to meet it. Moreover, even had a defense expert testified that
appellant's actions were also consistent with non-criminal activity, there
was no reasonable probability of a different outcome where the victim
testified that only appellant was close enough to her to take her wallet and
appellant used the victim's stolen credit card shortly after the theft. We
therefore conclude that the district court did not err in denying this claim
without an evidentiary hearing.
Sixth, appellant argues that counsel was ineffective for failing
to properly challenge the use of a preliminary-hearing transcript in lieu of
live testimony at the trial and for not making an offer of proof as to what
additional questions counsel would have posed to a live trial witness.
Appellant's bare claim has failed to demonstrate deficiency or prejudice.
Appellant did not specify what additional efforts the State should have
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made to procure the witness, what additional questions counsel could have
posed to a live witness, or how the results would have led to a reasonable
probability of a different outcome at trial. We therefore conclude that the
district court did not err in denying this claim without an evidentiary
hearing.
Seventh, appellant argues that counsel was ineffective for
failing to renew at trial his preliminary-hearing objection for violating the
best evidence rule. Appellant's bare claim has failed to demonstrate
deficiency or prejudice where he does not identify the objection that
counsel should have renewed. To the extent appellant is claiming, as he
did below, that counsel should have renewed an objection to testimony
about the shoe store surveillance video on the grounds that it was not the
best evidence, counsel made no such objection at the preliminary hearing
that he could have renewed at trial. Moreover, even had counsel objected
to testimony about the video, the law of the case is that the best-evidence-
rule exception in NRS 52.255(1) was satisfied. Ross v. State, Docket No.
52921 (Order of Affirmance, November 8, 2010); see also Hall, 91 Nev. at
315-16, 535 P.2d at 798-99. Accordingly, there was no reasonable
probability that the district court would have sustained the objection and,
thus, of a different outcome at trial. We therefore conclude that the
district court did not err in denying this claim without an evidentiary
hearing.
Eighth, appellant argues that counsel was ineffective for
failing to raise certain objections during the State's closing arguments and
at sentencing and for failing to move post-verdict to dismiss the case for
lack of evidence. These claims were not raised below, and we decline to
consider them in the first instance on appeal, See Davis v. State, 107 Nev.
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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).
Finally, appellant argues that the cumulative errors of trial
counsel warrant a new trial. Appellant has identified no errors of counsel,
so there are no errors to cumulate. We therefore conclude that the district
court did not err in denying this claim.
For the foregoing reasons, we find appellant's claims to be
without merit, and we
ORDER the judgment of the district court AFFIRMED.
Pickering 1
cc: Hon. Michael Villani, District Judge
Matthew D. Carling
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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