First, appellant argues that counsel was ineffective for failing
to retain an independent defense expert to evaluate appellant's
competency and to explain to the jury the impact of appellant's mental
illnesses on his ability to appreciate the consequences of his actions.
Appellant's bare claims have failed to demonstrate deficiency or prejudice.
Appellant had been found competent to stand trial, and he did not allege
any facts that should have led reasonable counsel to question that
finding.' Appellant also failed to state what the impact of his mental
illnesses were on his ability to appreciate the consequences of his actions
or how testimony to that effect would have affected the outcome of trial
We therefore conclude that the district court did not err in denying this
claim.
Second, appellant argues that counsel was ineffective for
failing to present mitigating evidence at the sentencing hearing.
Appellant's bare claims have failed to demonstrate deficiency or prejudice.
Appellant noted that counsel did not prepare a sentencing memorandum,
obtain statements in support of appellant, or address anything in the
presentencing investigation report (PSI), but he did not specify what the
memorandum or statements would have included, what needed to be
addressed in the PSI, or how any of it would have affected the outcome of
the sentencing hearing. Similarly, appellant complains that counsel did
not mention things such as appellant's support network, employment
"Appellant generally refers to a March 14, 2009, mental health
assessment, but he did not include that assessment in his appendix or
provide any details from the assessment other than that appellant was
diagnosed with certain mental illnesses. Appellant further acknowledges
that he was found competent to stand trial on December 15, 2009.
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history, and roots in the community, but he again failed to provide any
specific facts regarding those ties or how they could have affected the
sentence. We therefore conclude that the district court did not err in
denying this claim.
Third, appellant argues that counsel was ineffective for failing
to adequately communicate with him. Appellant's bare claims have failed
to demonstrate deficiency or prejudice. Appellant complains that counsel
did not respond to a letter in which appellant requested that some motions
be filed and investigations be conducted and that counsel did not provide
requested copies of preliminary hearing transcripts or the victim's medical
records. Appellant did not state what motions he wanted filed, what
investigation counsel should have undertaken, what the outcomes of
either of those actions would have been, or how counsel's taking any of the
aforementioned actions could have affected the outcome at trial. See, e.g.,
Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004) (upholding the
denial of an ineffective-assistance-of-counsel claim because appellant did
not demonstrate what a more thorough investigation would have
revealed). We therefore conclude that the district court did not err in
denying this claim.
Fourth, appellant argues that counsel was ineffective for
denying him his right to a speedy trial. Appellant has failed to
demonstrate deficiency or prejudice. Counsel stated that he was
unprepared to go forward with the originally scheduled trial, and
appellant has failed to demonstrate that it was objectively unreasonable
for counsel to move to continue the trial in order to be prepared. Further,
appellant's bare claim that the continuance gave the State more time to
investigate failed to specify what additional information the State
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discovered during the continuance or how it affected the outcome at trial.
We therefore conclude that the district court did not err in denying this
claim.
Fifth, appellant argues that counsel was ineffective for failing
to object to the district court's handling of the complaining witness or to
move for a mistrial because of it. Appellant has failed to demonstrate
deficiency or prejudice. The witness was refusing to answer defense
counsel's questions and was instead attempting to engage in his own
narrative. The district court excused the jury to admonish the witness at
length regarding the basic trial framework and that he must constrain
himself to answering the questions posed. Appellant failed to demonstrate
that counsel was objectively unreasonable in not objecting to the district
court's efforts to reign in the unruly witness. Further, counsel's decision
not to move for a mistrial was clearly strategic as he highlighted in closing
argument the witness's obstreperous behavior on the witness stand and
used it to attack the witness's credibility. We therefore conclude that the
district court did not err in denying this claim.
Sixth, appellant argues that counsel was ineffective because
he "assisted" the State's illiterate complaining witness by suggesting that
the witness's voluntary statement to police be read to him outside the
presence of the jury when he was unable to recall what he had told the
police. Appellant• has failed to demonstrate deficiency or prejudice.
Appellant does not state how this action substantially differs from
allowing a literate witness to read his previous statement to himself in
order to refresh his recollection and/or to impeach him Further, even
,
after the reading, counsel continued to impeach the witness's testimony
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where it differed from what was in the voluntary statement. We therefore
conclude that the district court did not err in denying this claim.
Finally, appellant argues that the cumulative error of counsel
warrants the reversal of his conviction. Because appellant failed to
demonstrate error, he necessarily failed to demonstrate cumulative error.
For the foregoing reasons, we find appellant's claims without
merit, and we
ORDER the judgment of the district court AFFIRMED.
J.
J.
Douglas
cc: Hon. Michelle Leavitt, District Judge
Matthew D. Caning
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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