Budd (Glenford) v. State ( 2015 )

 outweighed by the danger of unfair prejudice. See Holmes v. State, 129
Nev., Adv. Op. 59, 306 P.3d 415, 420 (2013). Although Budd states that
counsel should have retained an expert to determine whether he wrote the
song, he did not demonstrate that the song was written by someone else or
that counsel could have successfully challenged its admissibility on
another basis. See NRS 52.035. Therefore, Budd fails to demonstrate that
the district court erred.
Second, Budd contends that the district court erred by denying
his claim that counsel was ineffective for failing to investigate and present
evidence supporting second-degree murder. We disagree because Budd
presented no evidence at the evidentiary hearing that a better
investigation would have revealed. See Molina v. State, 120 Nev. 185, 192,
87 P.3d 533, 538 (2004). While Budd suggests that trial counsel could
have learned from a witness that he ingested drugs before the killings,
postconviction counsel admitted at the evidentiary hearing that he spoke
with the witness and she denied ever stating that Budd ingested drugs.
Therefore, Budd fails to demonstrate that the district court erred.
Third, Budd contends that the district court erred by denying
his claim that counsel was ineffective for "failing to subject the State's case
to the adversarial process." We disagree because Budd fails to
demonstrate that counsel performed deficiently or that the result of trial
would have been different, and we reject his contention that we should
presume deficiency and prejudice under the circumstances. Budd does
not specify the evidence a better investigation would have revealed, the
witnesses the defense should have called, or what the witnesses would
have said that would have changed the result at trial. In addition, counsel
testified at the evidentiary hearing that he avoided making unnecessary
SUPREME COURT
OF
NEVADA
2
(0) 1947A
objections in order to preserve credibility in front of the jury. The district
court found counsel to be credible and the record supports the district
court's determination. Therefore, we conclude that no relief is warranted
on this claim.
Fourth, Budd contends that the district court erred by denying
his claim that counsel was ineffective for conceding his guilt without his
consent. We disagree. Counsel did not concede Budd's guilt; rather, he
conceded that some evidence pointed towards Budd's culpability but
argued that the evidence was insufficient to prove guilt beyond a
reasonable doubt. Counsel testified that he made this argument because
there was overwhelming evidence against Budd and he needed to preserve
credibility in front of the jury. Given the record, Budd fails to demonstrate
that counsel's decision was unreasonable See Armenta-Carpio v. State,
129 Nev., Adv. Op. 54, 306 P.3d 395, 399 (2013). Therefore, Budd fails to
demonstrate that the district court erred. 1
Having considered Budd's contentions and concluded they
lack merit, we
ORDER the judgment of the district court AFFIRMED.
, C.J.
Hardesty
J.
Gibbons
1 Budd also contends that cumulative error warrants relief. Having
found no error, there are no errors to cumulate
SUPREME COURT
OF
NEVADA
3
(0) 104Th e
cc: Hon. David B. Barker, District Judge
Matthew D. Carling
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1941A e