Godoy (Adolfo) v. State ( 2014 )

 surveillance video which captured the incident was shown to the jury and
counsel cross-examined the victim regarding the inconsistencies between
what could be observed in the video and her statements to police.' At the
evidentiary hearing on Godoy's petition, counsel testified that he made a
strategic decision to rely on this cross-examination rather than present
the officers' testimony because he was concerned that the officers could
explain away the victim's inconsistencies. Counsel also testified that he
did not want the police reports admitted because they contained
prejudicial statements. We conclude that the district court did not err by
denying this claim. See Doleman v. State, 112 Nev. 843, 848, 921 P.2d
278, 280-81 (1996) (trial counsel's tactical decisions are virtually
unchallengeable).
Second, Godoy contends that the district court erred by
denying his claim that counsel was ineffective for failing to call witnesses
who would have testified that (1) Godoy paid for part of the vehicle he
allegedly stole, (2) the victim had given Godoy permission to use the
vehicle in the past, (3) the victim had falsely accused Godoy of stealing the
vehicle in the past, and (4) the victim bailed Godoy out of jail after the
incident. Godoy fails to demonstrate deficiency or prejudice. At trial,
counsel cross-examined the victim regarding these assertions. And at the
evidentiary hearing, counsel testified that he made a strategic decision to
"Godoy has not provided this court with the trial transcripts. We
remind counsel for Godoy that it is appellant's burden to provide all
documents essential to the decision of issues presented on appeal. See
NRAP 30(b)(2)-(3); Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688
(1980). The State has provided the portiOns of the trial transcripts
relevant to its arguments.
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elicit this information from the victim directly rather than through
witnesses because he did not believe the witnesses he located would be
helpful. We conclude that the district court did not err by denying this
claim.
Third, Godoy contends that the district court erred by denying
his claim that counsel was ineffective for failing to request a jury
instruction regarding permission. Godoy fails to demonstrate deficiency or
prejudice because, during the post-conviction proceedings below, he did
not present the district court with an instruction that counsel should have
offered which would have altered the outcome of trial. We conclude that
the district court did not err by denying this claim.
Fourth, Godoy contends that the district court erred by
denying his claim that counsel was ineffective for failing to object to the
introduction of prior bad acts at trial. The district court erred by denying
this claim based on the law-of-the-case doctrine. Nevertheless, Godoy fails
to demonstrate the district court erred by denying this claim because he
has not provided citation to the record wherein the allegedly improper
evidence was admitted, see NRAP 3C(e)(1)(C); NRAP 28(e)(1), and based
on our review of the record provided, we discern neither deficiency nor
prejudice, see Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970)
(this court will affirm a decision of the district court if it reaches the right
result, even if for the wrong reason).
Fifth, Godoy contends that the district court erred by denying
his claim that counsel was ineffective for failing to offer a curative
instruction when a juror saw him in custody. Godoy fails to demonstrate
deficiency or prejudice. Counsel testified that the juror seeing Godoy in
custody was irrelevant and he did not seek an instruction because he had
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informed the jury that Godoy was in custody in order to demonstrate the
number of times the victim contacted him after the incident, and the
district court instructed the jury that it was to consider Godoy's custody
status only for that purpose. We conclude that the district court did not
err by denying this claim.
Sixth, Godoy contends that the district court erred by denying
his claim that counsel was ineffective for failing to investigate a cell phone
found in the victim's vehicle, which he claims would have proven that he
was not in possession of the vehicle. Godoy fails to demonstrate prejudice.
Even assuming that the cell phone was not his, Godoy's name was written
on evidence found in the vehicle and other evidence demonstrated that he
had been in possession of the vehicle. We conclude that the district court
did not err by denying this claim.
Seventh, Godoy contends that the district court erred by
denying his claim that counsel's errors, considered cumulatively, entitle
him to relief. Because we agree with the district court that counsel did not
err, we conclude that this claim lacks merit.
Other claims
Next, Godoy contends that the district court erred by denying
his claim that the State "improperly joined" the charges of possession of
stolen property and robbery. We reject this contention for two reasons.
First, although Godoy asserts that this claim was raised below as
"supplemental ground two," it was not raised or considered by the district
court. 2 Second, the claim is waived because it could have been raised on
Godoy concedes that this claim was not explicitly raised below but
asserts that it was implicitly raised during the evidentiary hearing;
continued on next page . . .
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direct appeal, see NRS 34.810(1)(b)(2), and Godoy fails to demonstrate
good cause and prejudice for failing to raise the claim sooner or that he
has suffered a fundamentalS miscarriage of justice, see Clem v. State, 119
Nev. 615, 621, 81 P.3d 521, 526 (2003).
Finally, Godoy contends that the district court erred by
denying his claim that he was deprived of his right to allocution. On
direct appeal, this court concluded that Godoy's right to allocution was
violated, but Godoy failed to demonstrate prejudice; the law-of-the-case
doctrine precluded further litigation on this issue. See Hall v. State, 91
Nev. 314, 316, 535 P.2d 797, 799 (1975). We conclude that the district
court did not err by denying this claim.
Having considered Godoy's contentions and concluded that no
relief is warranted, we
ORDER the judgment of the district court AFFIRMED.
iwAL get-Atk , J.
Hardesty
, J. Chsza
Douglas Cherry
. . . continued
however, it does not appear that the district court permitted Godoy to
raise claims at the evidentiary hearing that were not previously pleaded.
See Barnhart v. State, 122 Nev. 301, 303, 130 P.3d 650, 651 (2006). Godoy
also asserts, for the first time, that counsel was ineffective for failing to
make this argument at trial. We decline to consider this assertion. See
NRAP 28(c); see also Elvik v. State, 114 Nev. 883, 888, 965 P.2d 281, 284
(1998) (explaining that arguments made for the first time in a reply brief
prevent the respondent from responding with specificity).
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cc: Hon. Patrick Flanagan, District Judge
Story Law Group
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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