Jardine (Hector) v. State ( 2014 )

 would entitle him to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686
P.2d 222, 225 (1984).
First, appellant argues that his trial counsel was ineffective
for failing to file a pretrial petition for a writ of habeas corpus arguing that
the kidnapping charge was improper because the movement of the victim
did not substantially increase the risk of harm. Appellant acknowledges
counsel moved to dismiss the kidnapping charge prior to trial, but he
argues that the proper procedure to challenge that charge was via a
petition for a writ of habeas corpus. Appellant fails to demonstrate that
his trial counsel's performance was deficient or that he was prejudiced.
"A separate charge of first degree kidnaping is proper if the movement of
the victim is not merely incidental to the associated offense and it results
in substantially increased risk of harm." Curtis D. v. State, 98 Nev. 272,
274, 646 P.2d 547, 548 (1982) (citing Wright v. State, 94 Nev. 415, 581
P.2d 442 (1978)). In this case, appellant took the victim at knifepoint
upstairs to a bedroom, locked the bedroom door behind them, and then
forced her to stay in that bedroom for a substantial period of time. Moving
the victim to a more secluded room and locking her in that room
substantially increased the risk of harm. Under these circumstances,
appellant fails to demonstrate that reasonably diligent counsel would have
filed a pretrial petition for a writ of habeas corpus challenging the
kidnapping charge or that a petition had a reasonable probability of
altering the outcome of the proceedings as such a petition would have been
futile. See Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006).
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Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Second, appellant argues that his trial counsel was ineffective
for failing to obtain evidence from the Navy regarding false allegations of
sexual misconduct the victim made while she served in the military.
Appellant fails to demonstrate that he was prejudiced. Appellant fails to
demonstrate a reasonable probability of a different outcome at trial had
counsel sought these records as appellant does not demonstrate that these
records actually exist and that any records discussing the victim's sexual
history would have been admissible at trial. See NRS 50.090; see also
Miller v. State, 105 Nev. 497, 502, 779 P.2d 87, 90 (1989) (discussing that
prior to admission of a victim's prior sexual abuse allegation, a defendant
must establish by a preponderance of the evidence that the victim made
an accusation, the accusation was false, and that the evidence is more
probative than prejudicial). Appellant also fails to demonstrate a
reasonable probability of a different outcome at trial had counsel obtained
these records as there was overwhelming evidence that appellant sexually
assaulted the victim and attempted to murder her. Therefore, the district
court did not err in denying this claim without conducting an evidentiary
hearing.
Third, appellant argues that his trial counsel was ineffective
for failing to object when the State asked appellant during trial if other
witnesses were lying. Appellant fails to demonstrate that he was
prejudiced. The challenged questions were considered on direct appeal
under a plain error standard and this court concluded that the questions
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did not affect appellant's "substantial rights in light of the overwhelming
evidence of his guilt." Jardine v. State, Docket Nos. 48736 and 48737
(Order of Affirmance, December 19, 2008). As there was overwhelming
evidence of appellant's guilt presented at trial, appellant fails to
demonstrate a reasonable probability of a different outcome at trial had
counsel objected to the State's questions regarding the veracity of the
other witnesses. Therefore, the district court did not err in denying this
claim without conducting an evidentiary hearing.
Fourth, appellant argues that his trial counsel was ineffective
for failing to retain a medical expert to review the victim's wounds and
testify that she was hurt by falling on a piece of glass, not by appellant's
knife. Appellant fails to demonstrate that his trial counsel's performance
was deficient or that he was prejudiced. The surgeon who operated on the
victim testified that, while it was possible that a sharp piece of glass could
have caused the victim's wounds, the jagged glass depicted in a
photograph from the crime scene could not have been the cause.
Appellant fails to demonstrate that reasonably diligent counsel could have
discovered a medical expert that would have testified in a different
manner or a reasonable probability of a different outcome had counsel
retained a medical expert on appellant's behalf. Therefore, the district
court did not err in denying this claim without conducting an evidentiary
hearing.
Fifth, appellant argues that his trial counsel was ineffective
for failing to discover that appellant had actually filed for divorce from his
wife prior to the incident with the victim. Appellant fails to demonstrate
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that his trial counsel's performance was deficient or that he was
prejudiced. Appellant testified that he hired a divorce attorney and that
he believed thefl divorce process had been initiated. Appellant fails to
demonstrate that reasonably diligent counsel would have sought further
evidence to bolster this testimony as it did not provide a defense to
appellant's actions with respect to the victim. Appellant fails to
demonstrate a reasonable probability of a different outcome at trial had
counsel further investigated appellant's divorce proceedings as there was
overwhelming evidence presented that appellant sexually assaulted the
victim and attempted to murder her. Therefore, the district court did not
err in denying this claim without conducting an evidentiary hearing.
Sixth, appellant argues that his trial counsel was ineffective
for failing to obtain cell phone records to demonstrate that the victim
called appellant on the day of the incident. Appellant fails to demonstrate
that his trial counsel's performance was deficient or that he was
prejudiced. Appellant testified that the victim called him and indicated
that she wanted to discuss their relationship. Appellant fails to
demonstrate that reasonably diligent counsel would have attempted to
bolster this statement through cell phone records as those records would
not have provided a defense for appellant's actions. Appellant fails to
demonstrate a reasonable probability of a different outcome at trial had
counsel sought these records, as there was overwhelming evidence
presented that appellant hid in the victim's apartment with a knife,
sexually assaulted her when she returned home, and then stabbed her in
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the neck when she attempted to escape. Therefore, the district court did
not err in denying this claim without conducing an evidentiary hearing.
Seventh, appellant argues that his trial counsel was
ineffective for failing to adequately draft a motion for new trial. Appellant
fails to demonstrate that his trial counsel's performance was deficient or
that he was prejudiced. Appellant fails to demonstrate either deficiency or
prejudice for this claim as he does not identify any claims that reasonably
diligent counsel would have raised or that would have had a reasonable
probability of success. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225.
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Eighth, appellant argues that the cumulative effect of
ineffective assistance of counsel warrants vacating his judgment of
conviction. Because appellant's ineffective-assistance claims lack merit,
he fails to demonstrate any cumulative error. Therefore, the district court
did not err in denying this claim without conducting an evidentiary
hearing.
Finally, appellant argues that the district court erred by
adopting the State's proposed order without providing appellant the
opportunity to review and object to the proposed order. The proposed
order contains a certificate of service indicating that the State served
appellant's counsel with a copy of the proposed order. To the extent
appellant asserts that he did not have sufficient time to review and
respond to the proposed order prior to the district court's adoption of that
order, we conclude that any error in this regard was harmless and
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appellant fails to demonstrate prejudice, See NRS 178.598 (stating that
any error, defect, irregularity or variance which does not affect substantial
rights shall be disregarded). But cf. Byford v. State, 123 Nev. 67, 69, 156
P.3d 691, 692 (2007) (stating that when a district court requests a party to
prepare a proposed order, the court must ensure that the other parties are
aware of the request and given the opportunity to respond to the proposed
order). Appellant does not demonstrate that any error adversely affected
the outcome of the proceedings or his ability to seek full appellate review.
Therefore, appellant is not entitled to relief based on this argument.
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
J.
J.
Saitta
cc: Hon. Michael Villani, District Judge
Law Offices of C. Conrad Claus
Attorney GeneraVCarson City
Clark County District Attorney
Eighth District Court Clerk
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