Cobb (Delbert) v. State ( 2014 )

 deference to the district court's factual findings if supported by substantial
evidence and not clearly erroneous but 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, appellant argues that counsel was ineffective for failing
to prepare for trial. Specifically, appellant claims that investigator J.
Osterman did not meet with appellant until right before trial, resulting in
a failure to investigate a list of potential leads due to time constraints, and
that counsel failed to timely provide appellant with the transcripts from a
pretrial hearing until a few days before trial, thereby preventing an
adequate investigation of appellant's "list of salient points" to rebut
testimony from that hearing. Appellant's bare claims have failed to
demonstrate deficiency or prejudice. See Hargrove v. State, 100 Nev. 498,
502, 686 P.2d 222, 225 (1984). Appellant does not attempt to explain why
he did not provide the leads to counsel in the several years preceding trial,
nor does he dispute the district court's finding, which was supported by
evidence in the record, that counsel had been utilizing a different
investigator until shortly before trial. Further, appellant fails to state
what leads or "salient points" should have been investigated, what the
results would have been, or how it would have affected the outcome of the
trial. See Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). We
therefore conclude that the district court did not err in denying this claim.
Second, appellant argues that counsel was ineffective for
failing to conduct a pretrial interview of victim J. Lopez, Jr. Appellant has
failed to demonstrate deficiency or prejudice. Appellant has not shown
that counsel was objectively unreasonable in not interviewing a victim
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who repeatedly told police that he could not remember details of the
shooting and who did not identify appellant in a photographic lineup. At
trial, the victim maintained that he could not remember, and at the
evidentiary hearing for the instant petition, the victim testified that at the
time of trial he felt that the best way to help appellant was to continue to
maintain that he could not remember. We therefore conclude that the
district court did not err in denying this claim.
Third, appellant argues that counsel was ineffective for failing
to request that the jury be instructed that it must presume the two
murder weapons lacked appellant's fingerprints because the State failed to
test the murder weapons for fingerprints. Appellant has failed to
demonstrate deficiency or prejudice. Appellant admitted at trial to
handling, and was previously convicted of crimes involving the discharge
of, one of the firearms, and he was acquitted of the crime involving the
other firearm. Thus a lack of prints would not have exculpated him.
Further, two defense witnesses, one of whom was a former member of
appellant's gang, testified that gang members passed guns among
themselves, and accordingly, the presence of prints other than appellant's
would also not have been exculpatory. We therefore conclude that the
district court did not err in denying this claim.
Fourth, appellant argues that counsel was ineffective for
failing to object to the hearsay testimony of A. Melendez, which allegedly
portrayed him as a violent man with criminal tendencies. Appellant has
failed to demonstrate deficiency or prejudice. The testimony of the
witness, who was subject to cross-examination, was elicited as a prior
inconsistent statement, which is excluded from the definition of hearsay.
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See NRS 51.035(2)(a). Further, appellant had pleaded guilty to the crime
about which the witness was testifying, which included an enhancement
for gang activity. We therefore conclude that the district court did not err
in denying this claim.
Fifth, appellant argues that counsel was ineffective for failing
to object to leading questions posed by the State. Appellant has failed to
demonstrate deficiency or prejudice. Most of the questions to which
appellant refers did not lead but rather recapped the witness's prior
testimony before posing a new question. The few that could arguably be
considered leading were of such minor consequence that counsel was not
objectively unreasonable in not objecting to them. We therefore conclude
that the district court did not err in denying this claim.
Sixth, appellant argues that counsel was ineffective for failing
to object to the expert testimony of a witness who had not been noticed as
an expert. Appellant has failed to demonstrate deficiency or prejudice.
Appellant did not ask counsel about this witness at the evidentiary
hearing nor demonstrate that it was objectively unreasonable for counsel
to refrain from objecting to testimony that is only questionably expert in
nature. Further, the allegedly expert testimony to which appellant now
objects had already largely been admitted via other witnesses such that he
could not demonstrate a reasonable probability of a different outcome at
trial had the testimony been excluded. We therefore conclude that the
district court did not err in denying this claim.
Seventh, appellant argues that counsel was ineffective for
failing to move for a new trial based on juror misconduct. Appellant has
failed to demonstrate deficiency or prejudice. The district court's findings
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that the jurors were aware of the existence of, but not the content of,
various media reports of the trial, as well as that the existence of such
reports did not affect the jurors' ability to render a fair and impartial
verdict, was supported by substantial evidence in the record. We therefore
conclude that the district court did not err in denying this claim.
Eighth, appellant argues that counsel was ineffective for
admitting appellant's guilt during the opening statements to the penalty
phase of the trial. Appellant has failed to demonstrate deficiency or
prejudice. Counsel did not insinuate appellant's guilt, but rather
commented on the jury's ability to sift through a lot of disparate
information during the guilt phase of trial. We therefore conclude that the
district court did not err in denying this claim.
Finally, appellant argues that the cumulative effect of
counsel's errors warrants reversal of his conviction. Because appellant
failed to demonstrate error, he necessarily failed to demonstrate
cumulative error.
Next appellant argues that he is entitled to a new trial based
on newly discovered evidence: the testimony of J. Lopez, Jr. Even were
such a claim cognizable in a post-conviction petition for a writ of habeas
corpus, appellant's claim is untimely. A motion for new trial based on new
evidence must be raised within two years of the verdict. NRS 176.515(3).
Appellant's verdict was rendered on May 1, 2007, but the instant petition
was filed more than three years later. Moreover, as a separate and
independent ground to deny relief, appellant could not have met the
requirements for a new trial even had his motion been timely filed. The
district court found Mr. Lopez to be utterly lacking in credibility, such that
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his new information would not have "render[ed] a different result probable
upon retrial." Sanborn v. State, 107 Nev. 399, 406, 812 P.2d 1279, 1284
(1991).
For the foregoing reasons, we conclude that appellant's claims
are without merit, and we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
Lxl Aia J.
Douglas
J.
cc: Hon. Abbi Silver, District Judge
Oronoz & Ericsson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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