Green (Dushon) v. State

the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
First, appellant argues that his trial counsel, Mr. Michael
Gowdey, was ineffective for allegedly stipulating in the proceedings on a
motion to suppress evidence that there was no proof that a DNA sample
taken by the Department of Parole and Probation (the Department) was at
the behest of the Las Vegas Metropolitan Police Department (Metro).
Appellant asserts that this affected his ability to litigate the issue later in
a motion to reconsider and on appeal and that this concession should not
have been made without further investigation.
Appellant fails to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Trial counsel did not
stipulate to the fact that the Department was not acting on behalf of
Metro, but rather trial counsel conceded that he had no evidence that the
Department was acting on behalf of Metro when the DNA sample was
taken. This concession, which was not objectively unreasonable as
counsel did not have evidence of collusion between the Department and
Metro and did investigate this point in discovery, did not affect appellant's
ability to litigate the issue if evidence could be found at a later time. In
fact, attorneys who succeeded Mr. Gowdey in representing appellant did
litigate a motion to reconsider the denial of the motion to suppress with a
Metro report that they discovered with further investigation. This report,
which was not provided to this court for review but is described as having
been written in 1998, did not establish evidence of collusion in the taking
of the DNA sample in 2002. At the evidentiary hearing, appellant's
former trial counsel testified that they investigated but could not find any
evidence that the Department was working at the behest of Metro in

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obtaining the DNA sample from appellant. Appellant also litigated the
denial of his motion to suppress and the motion for reconsideration on
direct appeal, and this court concluded that although the DNA sample
taken by the Department was illegally obtained, the exclusionary rule did
not apply because the DNA sample was taken in an improper search
relating to another crime, there was no evidence that the probation officer
knew the sample would become useful in identifying appellant for the
crimes in the instant case, and it was reasonable to believe that the
violation of appellant's rights was due to an unintentional mistake. Green
v. State, Docket No. 50756 (Order of Affirmance, July 31, 2009).
Appellant continues to fail to present satisfactory evidence demonstrating
the underlying premise of his claim—that the Department acted at the
behest of Metro in obtaining his DNA sample) Appellant further fails to
demonstrate a reasonable probability of a different outcome had counsel
conducted further investigation or had counsel not conceded to the lack of
evidence at the hearing on the original motion to suppress evidence.
Therefore, we conclude that the district court did not err in denying this
claim. 2

lAn affidavit prepared by Detective Love, the first lead investigator,
indicated that appellant was not a target in their investigation. Detective
Courtney, the subsequent lead investigator, testified that appellant was
not a suspect until 2004 when the positive result from the DNA sample
was returned. Appellant's testimony to the contrary that he was a target
was unpersuasive to the district court, and substantial evidence supports
this conclusion.

2 To
the extent that appellant argues that his appellate counsel, Mr.
Martin Hart, was ineffective for failing to provide authority for an
argument that an evidentiary hearing should have been conducted on the
motion to suppress and motion to reconsider, appellant fails to
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Second, appellant argues that his trial counsel were ineffective
for failing to present any defense witnesses to support the defense theory
that he wanted to present—that Metro framed him. Appellant asserts
that he informed counsel of witnesses that would verify his account that
he had been harassed by the police for years before his arrest in this case.
Appellant fails to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Trial counsel is
constitutionally deficient only when counsel fails to make objectively
reasonable choices, Bobby v. Van Hook, 558 U.S. 4, 9 (2009), and there is a
"strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at 689.
Strategic decisions made after a thorough investigation of the facts and
law are virtually unchallengeable. Id. at 690. The three attorneys who
testified at the evidentiary hearing confirmed that appellant had informed
them of his belief that he was being framed for the crimes. The attorneys
further testified, however, that they had investigated his allegations and
could not find evidence to support the allegations at trial. Appellant fails
to demonstrate that it was objectively unreasonable for his trial attorneys,
Ms. Susan Burke and Mr Hart, to choose a strategy of attacking the
weaknesses in the State's case rather than presenting the "framed" theory
of defense favored by appellant. In light of the overwhelming evidence of
guilt, namely the DNA evidence, the partial palm print at one crime scene,
and the identification by two victims, appellant fails to demonstrate that
there was a reasonable probability of a different outcome at trial had trial

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demonstrate his appellate counsel was ineffective. See Kirksey v. State,
112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996).

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counsel presented his "framed" theory of defense. Therefore, we conclude
that the district court did not err in denying this claim.
Finally, appellant appears to argue that cumulative error
warrants relief. First, we note that appellant's attempt to incorporate by
reference the claims raised below without identification of the specific
claims, cogent argument or relevant legal authority, is improper, and we
decline to consider those claims raised only in the proceedings below. See
Maresca v. State, 103 Nev. 669, 673 748 P.2d 3, 6 (1987). Because
appellant failed to demonstrate any error in the claims raised on appeal,
this claim is without merit. Accordingly, we
ORDER the judgment of the district court AFFIRMED.

Hardesty

cc: Hon. Carolyn Ellsworth, District Judge
Justice Law Center
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk

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