deference to the district court's factual findings if supported by substantial
evidence and not clearly erroneous but review the court's application of
the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
First, appellant argues that counsel was ineffective for failing
to consult with or retain an expert on eyewitness identification. Appellant
has failed to demonstrate prejudice. The district court's finding that there
was other evidence against appellant besides the eyewitness identification
is supported by substantial evidence in the record before this court. Not
only did appellant demonstrate a consciousness of guilt when he testified
under oath to an alibi that was subsequently discredited, but at least
three other witnesses testified to either seeing appellant shoot the victim
or hearing appellant make incriminatory remarks about shooting the
victim. Further, any expert who discredited the State's eyewitness
identification would likely also have discredited the defense's sole
eyewitness, whose description of the shooter excluded appellant. We
therefore conclude that the district court did not err in denying this claim.
Second, appellant argues that counsel was ineffective for
failing to consult with a criminalist in order to present evidence that the
location of the bullet casings suggest that the victim was shot from the
driver's side of the car, not the passenger's side where appellant was.
Appellant has failed to demonstrate deficiency or prejudice. All witnesses
agreed that the vehicle was parked away from the curb, such that bullet
casings in the street would not necessarily mean shots were fired from the
driver's side. Further, at trial, a police detective testified that the bullet
casings were found in an area consistent with having been fired from the
SUPREME COURT
OF
NEVADA
2
991 1947A 94S59
passenger's side of the vehicle. Appellant presented no evidence at the
evidentiary hearing to contradict this testimony. We therefore conclude
that the district court did not err in denying this claim.
Third, appellant argues that counsel was ineffective for failing
to present the testimony of K. Compton, who would have demonstrated
that the driver was the shooter. Appellant has failed to demonstrate
deficiency or prejudice. Appellant did not produce the witness at the
evidentiary hearing and thus failed to prove the facts underlying his claim
by a preponderance of the evidence. We therefore conclude that the
district court did not err in denying this claim.
Fourth, appellant argues that counsel was ineffective for (1)
failing to realize and then argue that P. Chopper's testimony about the
shooter's actions matched the driver's description of his own actions as
testified to in previous proceedings and (2) not presenting evidence that
the shooter wore green where witnesses said appellant was in white.
Appellant has failed to demonstrate deficiency or prejudice. Appellant has
failed to provide this court with transcripts of the previous proceedings or
with police reports that allegedly indicate the shooter was wearing green,
thereby precluding review of the district court's disposition of these claims.
See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The
burden to make a proper appellate record rests on appellant."). We
therefore conclude that the district court did not err in denying these
claims.
Finally, appellant argues that the cumulative errors of counsel
warrant reversal of his conviction and a new trial. Because this court has
determined that appellant failed to demonstrate deficiency on all but the
SUPREME COURT
OF
NEVADA
3
(0) 1947A cleffiA.
eyewitness-expert claim and that he failed to demonstrate prejudice for
that claim, appellant cannot demonstrate cumulative error. We therefore
conclude that the district court did not err in denying this claim.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
ikat ("X) J.
Douglas
cc: Hon. Janet J. Berry, District Judge
Patricia C. Halstead
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A v(tio