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, the State contends that the district court erred by
concluding that counsel were ineffective for stipulating to the admission of
a non-testifying medical examiner's autopsy report and allowing a
different medical examiner to testify in his place. We agree. At the
evidentiary hearing, one of Melendez's trial attorneys testified that she
made a strategic decision to stipulate to admission of the report, and the
testimony of Dr. Lary Simms, because she did not dispute the findings in
the report and she preferred to have Dr. Simms testify rather than the
report's author. The district court failed to give sufficient deference to this
decision. See Strickland, 466 U.S. at 689; Lara v. State, 120 Nev. 177,
180, 87 P.3d 528, 530 (2004) (explaining that "trial counsel's strategic or
tactical decisions will be virtually unchallengeable absent extraordinary
circumstances" (internal quotation marks omitted)). The district court
also erred when it determined that Melendez was prejudiced, because
although the autopsy report stated that the cause of death was a homicide,
the defense's own theory of the case was that thefl cause of death was a
homicide—just an unintentional or accidental homicide. See Black's Law
Dictionary 332 (3d ed. 1996) (defining homicide). This distinction was
explained to the jury on numerous occasions. Finally, Melendez failed to
demonstrate that the result of trial would have been different had counsel
refused to stipulate to the report and insisted upon cross-examining the
report's author. We therefore conclude that the district court erred by
granting relief on this claim.
SUPREME COURT
OF
NEVADA
2
(0) 1947A
Second, the State contends that the district court erred by
concluding that counsel were ineffective for failing to hire an expert to
support the theory of defense. We agree. Counsel explained that the only
issue in this case was whether Melendez intended to kill his wife and she
did not believe an expert could assist the jury with this issue. Counsel
chose to make Melendez the focus of the case rather than quibble with the
physical evidence because she believed the jurors would sympathize with
Melendez when they heard about his life. The district court failed to give
sufficient deference to this strategy. But even assuming that counsel's
strategy was objectively unreasonable, Melendez failed to demonstrate
prejudice. Melendez did not demonstrate how testimony about a different
bullet trajectory or lighter trigger-pull would have made the defense's
theory of the case more plausible, or how those facts would lead to a
different result at trial given his own admissions and his conduct after the
shooting. We therefore conclude that the district court erred by granting
relief on this claim.
Third, the State contends that the district court erred by
concluding that trial counsel were ineffective for conceding guilt to
involuntary manslaughter during closing argument. See Armenta-Carpio
u. State, 129 Nev., Adv. Op. 54, 306 P.3d 395 (2013) (applying a Strickland
analysis to ineffective-assistance claims based upon a concession of guilt). 1
'Although Melendez discusses Hernandez u. State, 124 Nev. 978,
990, 194 P.3d 1235, 1243 (2008) (holding that the trial court must canvass
the defendant to determine whether he has consented to the concession of
continued on next page . . .
SUPREME COURT
OF
NEVADA
3
(0) 1947A
We agree for several reasons. First, the district court based its decision on
an incorrect determination of the facts—Melendez never testified at trial
and therefore counsel's concession could not have undermined his trial
testimony. Second, the concession did not directly contradict what counsel
told the jury in opening statements. Third, counsel's decision was not
objectively unreasonable under the circumstances. We therefore conclude
that the district court erred by granting relief on this claim.
Fourth, the State contends that the district court erred by
concluding that counsel were ineffective for failing to investigate Claudine
Eggelston, Melendez's sister-in-law, using the services of an investigator.
We agree. The district court offered several rationales for how this
conduct was ineffective, but they all rest upon the faulty assumption that
Eggelston's testimony was vital to the State's case. As we concluded on
Melendez's direct appeal, we do not believe that Eggleston's testimony
contributed to the verdict in any appreciable way in the light of the other
evidence presented at trial. Melendez v. State, Docket No. 54770 (Order of
Affirmance, July 29, 2011). Our review of the record makes clear that it
was Melendez's statements to police and his actions after the shooting
which were responsible for his conviction, and therefore better preparation
for Eggelston's testimony or highlighting her bias would not have changed
. . . continued
guilt), overruled by Armenta-Carpio, 306 P.3d 395, he does not allege that
the district court should have applied Hernandez.
SUPREME COURT
OF
NEVADA
4
(0) 1947A
the result at trial. We therefore conclude that the district court erred by
granting relief on this claim.
Having considered appellant's arguments and concluded that
they have merit, 2 we
ORDER the judgment of the district court REVERSED.
, J.
Saitta
, J.
Pickering
cc: Eighth Judicial District Court Dept. 15
Attorney General/Carson City
Clark County District Attorney
Karen A. Connolly, Ltd.
Eighth District Court Clerk
2 Wealso conclude that the district court erred by determining that
cumulative error warranted relief.
SUPREME COURT
OF
NEVADA
5
(0) 1947A eget.