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 his trial counsel were ineffective
for failing to hire an expert to review the DNA evidence and for failing to
have the DNA evidence retested.' We conclude that substantial evidence
supports the district court's decision to deny this claim. At the evidentiary
hearing, trial counsel testified that they had consulted with a forensic
DNA expert before trial and had her review all of the DNA reports and
evidence. Thus, appellant's claim that trial counsel failed to obtain an
expert is belied by the record. Further, trial counsel testified that, based
on the DNA expert's advice and determination that the testing procedures
were done correctly and that appellant was the source of the three
separate DNA samples, trial counsel decided not to retest the DNA. The
district court determined that the decision not to retest the DNA was a
reasonable trial strategy in light of the expert's opinion and the fact that
the results of the retest could have been used against appellant at trial.
The district court's factual findings are supported by substantial evidence,
and appellant fails to address those factual findings or present any
'Appellant also asserts in a footnote that trial counsel should have
"obtained reports that verified the chain of custody from California when
[appellant's] DNA was taken and the reports from the lab that developed
the DNA profile [and] submitted that profile to CODIS." He fails to
support this claim with cogent argument or relevant legal authority, and
thus we decline to consider it. Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987).
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argument on appeal demonstrating that the district court erred in denying
this claim. 2
Second, appellant argues that trial counsel was ineffective for
failing to ensure that bench conferences were recorded. Appellant has
failed to demonstrate that trial counsel's performance was deficient or that
he was prejudiced. Trial counsel testified that the trial court always
allowed him to make a record of any material issues discussed at
unrecorded bench conferences. Appellant does not make any specific
argument about any of the unrecorded bench conferences in this case but
rather contends that the failure to record the bench conferences is
prejudicial per se. Contrary to appellant's assertion, prejudice is not
presumed when the district court fails to make a record of unrecorded
conferences. Rather, appellant must demonstrate that "the record's
missing portions are so significant that their absence precludes this court
from conducting a meaningful review of the alleged errors that the
appellant identified and the prejudicial effect of any error." Preciado v.
State, 130 Nev. , 318 P.3d 176, 178 (2014). Because appellant has
2 1n his reply brief, appellant argues that the district court erred by
failing to find that trial counsel was ineffective for not hiring a second
DNA expert to "vet" the first expert's opinion. His claim in his post-
conviction petition was that counsel failed to consult a DNA expert; •he
never presented to the district court the issue of whether trial counsel
should have consulted two experts. Thus, we decline to consider this claim
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); see also Ford v. Warden, 111 Nev. . 872, 884, 901
P.2d 123, 130 (1995) (stating that an appellant "cannot change [his] theory
underlying an assignment of error on appeal").
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failed to make such a showing, we conclude that the district court did not
err in denying this claim.
Next, appellant challenges the district court's denial of his
Brady3 claim as procedurally barred under NRS 34.810(1)(b)(2). Appellant
argues that the district court erred in finding that he did not raise this
claim on direct appeal. We disagree. On direct appeal, appellant's claim
was that the district court abused its discretion in denying a motion for
mistrial because the State failed to disclose an expert's notes that were
used in her testimony in violation of Brady. See Henderson v. State,
Docket No. 52573 (Order of Affirmance, February 3, 2010). In his post-
conviction petition, appellant claimed that the State violated Brady by
failing to turn over information regarding the procedures used by the
California lab in obtaining and placing appellant's DNA into the CODIS
federal database. These are not the same claims. Moreover, appellant has
failed to demonstrate good cause or prejudice for his failure to raise the
Brady claim regarding the CODIS information on direct appeal. See NRS
34.810(1)(b); NRS 34.810(3); State v. Huebler, 128 Nev. „ 275 P.3d
91, 95 (2012). Thus, we conclude that the district court did not err in
denying the Brady claim as procedurally barred.
Next, appellant claims• that the district court abused its
discretion by denying his motion for additional funds to secure a forensic
DNA expert during the post-conviction proceedings. Appellant failed to
provide this court with a copy of his motion or the transcript of the hearing
on the motion. Therefore, he has failed to demonstrate that the district
3Brady v. Maryland, 373 U.S. 83 (1963).
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court abused its discretion in denying the motion. See State v. 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, 558, 612 P.2d 686, 688
(1980) ("The burden to make a proper appellate record rests on
appellant."). To the extent that appellant contends that the district court
was required to grant his motion for funds once post-conviction counsel
was appointed to represent him, appellant is mistaken. It is within the
district court's discretion to authorize expenses related to investigative
services. Kirksey v. State, 112 Nev. 980, 1003, 923 P.2d 1102, 1117 (1996).
Appellant also contends that the district court erred during
the evidentiary hearing by disclosing a prior witness's testimony to a
testifying witness. Appellant argues that this amounted to a violation of
the exclusionary rule for witnesses, which carries a presumption of
prejudice. We disagree. During the evidentiary hearing, trial counsel
Norm Reed testified that there was enough DNA evidence to retest but
that he and trial counsel Violet Radosta decided not to have the DNA
retested because their DNA expert advised against it and the results from
retesting could have been used against appellant at trial Ms. Radosta
was then called to testify and stated that they did not retest the DNA
evidence because there was no sample left to retest. The district court
questioned Ms. Radosta about this statement and told her that Mr. Reed
had testified that there was DNA evidence available for retesting. The
district court inquired further into the record, determined that there was
in fact DNA evidence available for retesting, and allowed Ms. Radosta to
opine that she did not retest it based on the expert's advice. We conclude
that the district court's inquiry into a factual matter did not violate the
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exclusionary rule. Given that the purpose of an evidentiary hearing is to
resolve questions of fact, it was not inappropriate for the district court to
inquire into discrepancies in Mr. Reed's and Ms. Radosta's testimony and
clarify the record. Further, appellant failed to object below.
For the foregoing reasons, we conclude that the district court
did not err in denying the petition, and we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
Douglas
TD117A J.
J.
cc: Hon. Abbi Silver, District Judge
Law Office of Julian Gregory, L.L.C.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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