must be shown, Strickland, 466 U.S. at 697, and the petitioner must
demonstrate the underlying facts by a preponderance of the evidence,
Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give
deference to the district court's factual findings regarding ineffective
assistance of counsel if they are supported by substantial evidence and not
clearly wrong but review the district court's application of the law to those
facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166
(2005).
Torrez was convicted, pursuant to a jury verdict, of aggravated
stalking. See NRS 200.575(1), (2). The district court conducted a hearing
on Torrez's petition over the course of multiple days, received testimony
from numerous witnesses, and concluded that trial counsel was deficient
for:
(1) Failing to subpoena the victim's phone records because
they cast doubt on either the victim's veracity or memory and because "the
State relied heavily on the testimony of [the victim] to prove their case."
Further, it found that "it was extremely important for Trial Counsel to
impeach [the victim's] testimony," and that trial counsel had no valid
explanation for his decision not to subpoena the records.
(2) Failing to object to the lack of direct evidence of prior bad
acts at a Pet rocelli hearing because the victim was the sole witness and
she had no first-hand knowledge of the prior bad acts.
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(3) Failing to object to the victim's hearsay testimony
regarding the prior bad acts.
(4) Failing to object to the police officers' hearsay testimony
regarding the motive behind the prior bad acts because the officers did not
have first-hand knowledge of any motive.
After making the above findings, the district court
cumulatively considered trial counsel's deficiencies, concluded that, while
"Trial Counsel made multiple errors and did a less than stellar job
handling th[e] case," Torrez was not prejudiced by trial counsel's errors,
and denied Torrez's petition.
Whether considering the claims individually or cumulatively,
we conclude that the district court erred in determining that Torrez was
not prejudiced by trial counsel's deficiencies. The State relied heavily on
the victim's testimony to prove their case, and it was crucial for counsel to
impeach her testimony. The victim's trial testimony was belied by her
phone records, and the phone records would have impeached either her
memory of events or her veracity. Furthermore, trial counsel failed to
object to key testimony regarding Torrez's prior bad acts, or the incidents
used by the State to demonstrate a course of conduct under NRS
200.575(1). Torrez has demonstrated a reasonable probability of a
different outcome at trial had counsel impeached the victim's testimony
with her phone records and/or objected to key testimony used to establish
an element of the offense. Therefore, we conclude that the district court
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erred in denying Torrez's petition and he is entitled to a new jury trial.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order."
fr=lt,A-ua-e-71.\
Hardesty
Douglas
'74
cc: Hon. William Rogers, District Judge
Law Offices of John P. Schlegelmilch, Ltd.
Attorney General/Carson City
Lyon County District Attorney
Third District Court Clerk
'Because of the decision reached in this order, we need not reach the
merits of Torrez's remaining claims.
The fast track response submitted in this case fails to comply with
NRAP 32(a)(4) because it does not contain page numbers. See NRAP
3C(h)(1) (requiring fast track filing to comply with the provisions of NRAP
32(a)(4)-(6)). W caution counsel for the State that future failure to follow
the Nevada Rules of Appellate Procedural when filing briefs with this
court may result in the imposition of sanctions. See NRAP 3C(n).
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