Atkins (James) v. State ( 2013 )

 proceedings would have been different. Strickland v. Washington, 466
U.S. 668, 687-88 (1984); Warden, Nev. State Prison v. Lyons, 100 Nev. 430,
432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland); see also
Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996).
First, appellant claimed that counsel was ineffective for failing
to appear at his initial arraignment, where counsel should have
challenged appellant's arrest on the basis that the police officer made a
binding promise not to arrest him, and challenged the arraignment
because it was not held within 72 hours of his arrest. Appellant failed to
demonstrate deficiency or prejudice. He did not demonstrate that his
arrest was illegal, and the record belies his claim that he was not
arraigned within 72 hours of his arrest. See id. Counsel cannot be
deemed ineffective for failing to file futile motions. Donovan v. State, 94
Nev. 671, 675, 584 P.2d 708, 711 (1978). Thus, the district court did not
err in denying this claim.
Second, appellant claimed that counsel was ineffective for
failing to challenge the amended criminal complaint because it was signed
without authority and constituted a violation of the Double Jeopardy
Clause. Appellant failed to demonstrate deficiency or prejudice.
Appellant's claim is belied by the record, as the complaint was signed by a
deputy district attorney under penalty of perjury. See NRS 171.102. In
regard to his claim of a double jeopardy violation, he had not yet been
tried or punished for any of the offenses and thus double jeopardy was not
at issue. See Jackson v. State, 128 Nev. , 291 P.3d 1274, 1278
(2012), petition for cert. filed, 81 U.S.L.W. (U.S. Mar. 8, 2013) (No. 12-
9118). Because a challenge to the amended criminal complaint would
have been unsuccessful, appellant failed to demonstrate that counsel was
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ineffective. See Donovan, 94 Nev. at 675, 584 P.2d at 711. Accordingly,
the district court did not err in denying this claim.
Third, appellant claimed that counsel was ineffective for
failing to argue at the preliminary hearing that the prosecution was a
"sham" because Counts 3 and 4 were the same as Count 6. Appellant
failed to demonstrate deficiency or prejudice, as this claim is clearly belied
by the record. Count 3 charged him with assault with the use of a deadly
weapon of victim Kurt Holub, while Count 4 charged him with battery
with the use of a,deadly weapon of a different victim, Ryan Hickman, and
Count 6 charged him with attempted murder of Hickman. Thus, the
charges in the counts were not identical. Furthermore, appellant was
convicted only of Counts 3 and 4, which were two different offenses
involving two different victims. Thus, the district court did not err in
denying this claim.
Fourth, appellant claimed that counsel was ineffective for
failing to file a motion to produce victim Hickman at the preliminary
hearing, which would have resulted in the dismissal of charges when
Hickman did not appear to testify at the hearing. Appellant failed to
demonstrate deficiency or prejudice. A defendant may be bound over for
trial if the evidence at the preliminary hearing is sufficient to establish
probable cause that a crime was committed by the defendant, and
probable cause to support a criminal charge may be based on slight or
marginal evidence. Sheriff, Washoe Cnty. v. Hodes, 96 Nev. 184, 186, 606
P.2d 178, 180 (1980); NRS 171.206. While Hickman did not testify at the
preliminary hearing, Holub's testimony established probable cause to
support the charges related to Hickman—two counts of battery with the
use of a deadly weapon and one count of attempted murder. Holub
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testified that appellant confronted him and Hickman and swung a knife at
them, cutting Hickman on the hand. Holub further testified that
appellant drove off but then came back and drove his truck at Holub and
Hickman, hitting Hickman and trapping him between the truck and a
transformer before driving away. Because the State was unable to locate
Hickman and have him testify about his injuries at the preliminary
hearing, the State struck the "resulting in substantial bodily harm"
language from one of the battery charges. Appellant failed to demonstrate
a reasonable probability that any of the charges would have been dropped
had counsel filed a motion to produce Hickman at the preliminary hearing.
Thus, the district court did not err in denying this claim.
Fifth, appellant claimed that counsel was ineffective for failing
to suppress Holub's testimony at the preliminary hearing because Holub
was in jail and was a "duress witness" and because Holub had a prior
felony conviction and thus was in "infamy" and could not testify as a
witness. Appellant failed to demonstrate deficiency or prejudice. The
State met its burden of presenting probable cause to bind appellant over
for trial, and the alleged problems with the testimony identified by
appellant would not have affected the admissibility of that testimony at
the preliminary hearing. Because a motion to suppress would have been
futile, counsel was not ineffective for failing to file it. See Donovan, 94
Nev. at 675, 584 P.2d at 711. Therefore, we conclude that the district
court did not err in denying this claim.
Sixth, appellant claimed that counsel was ineffective for
failing to subpoena a "bar full of people" for the preliminary hearing.
Appellant failed to demonstrate deficiency or prejudice, as he failed to
explain what the witnesses would have testified to or how the testimony
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would have affected the outcome of the proceedings. See Hargrove, 100
Nev. at 502-03, 686 P.2d at 225. Thus, the district court did not err in
denying this claim.
Seventh, appellant claimed that counsel was ineffective for
failing to ensure that a bench conference during the preliminary hearing
was recorded and for failing to object to witnesses' testimony. Appellant
failed to demonstrate deficiency or prejudice, as he failed to support these
claims with any specific facts that would entitle him to relief. Id. Thus,
the district court did not err in denying these claims.
Eighth, appellant claimed that counsel was ineffective during
the preliminary hearing for asking Officer Kruse only four questions, for
not objecting to Officer Kruse's testimony about Hickman, and for failing
to question Officer Kruse about inducing appellant to return to the scene
of the crime by promising that he would not be arrested. Appellant failed
to demonstrate deficiency or prejudice. At the preliminary hearing,
Officer Kruse testified that he arrived at the scene and saw a victim lying
on the ground and that he interviewed appellant later that night. Counsel
objected to any identification of the victim, and the officer did not identify
the victim as Hickman nor testify about appellant's arrest or statements.
Appellant failed to indicate how any further objections or questioning of
the officer would have changed the outcome of the proceedings. Therefore,
the district court did not err in denying these claims.
Ninth, appellant claimed that counsel was ineffective for
failing to appeal or challenge the probable-cause determination.
Appellant failed to demonstrate that his trial counsel's performance was
deficient or that he was prejudiced, because sufficient evidence was
presented at the preliminary hearing to support the bind-over to the
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district court. See Donovan, 94 Nev. at 675, 584 P.2d at 711. Therefore,
we conclude that the district court did not err in denying this claim.
Tenth, appellant claimed that counsel was ineffective for
failing to personally appear at his arraignment in district court and at a
pretrial hearing. Appellant failed to demonstrate deficiency or prejudice.
He did not explain how counsel's personal presence, rather than the
presence of counsel's associate, at the arraignment and pretrial hearing
would have affected the outcome of the proceedings. Thus, the district
court did not err in denying this claim.
Eleventh, appellant claimed that counsel was ineffective for
failing to remove herself as appellant's counsel several weeks after his
arraignment. This claim is belied by the record, as counsel moved to
withdraw shortly after the arraignment in district court, explaining that
appellant refused to cooperate and wanted different counsel, but the
district court initially denied the motion and did not allow counsel to
formally withdraw until several months later. Thus, the district court did
not err in denying this claim.
Twelfth, appellant claimed that counsel was ineffective for
waiving his attorney-client privilege. Appellant asserted that, after his
first counsel was removed and he was appointed new counsel, his new
counsel informed the district court that he had obtained appellant's case
file from appellant's previous counsel. Appellant failed to demonstrate
deficiency, as counsel was not unreasonable for obtaining the necessary
files and informing the court of this. Thus, the district court did not err in
denying this claim.
Thirteenth, appellant claimed that counsel was ineffective for
failing to object to a competency evaluation and an order of commitment.
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Appellant failed to demonstrate deficiency or prejudice. The district court
ordered appellant removed from the courtroom and evaluated for
competency after appellant's behavior disrupted a pretrial hearing and
appellant refused to cooperate with counsel. At a subsequent hearing,
appellant again was removed from the courtroom for disruptive behavior,
and the district court ordered him to be committed, evaluated, and
treated. Appellant failed to explain how any objection by counsel would
have affected the outcome of the proceedings. Thus, the district court did
not err in denying this claim.
Fourteenth, appellant claimed that counsel was ineffective for
failing to meet with him until a month after being appointed to represent
him. Appellant also claimed that counsel was ineffective for stating on
several occasions to the district court that counsel was unprepared to go to
trial, and for lying to appellant as to the reason for the one-day delay of
trial. Appellant failed to demonstrate prejudice, as he did not explain how
counsel's failure to meet with him, statements of unpreparedness, or
explanation for the trial delay affected the outcome of the trial.
Furthermore, while the record indicates that counsel wanted more time to
investigate and prepare for trial, appellant refused to waive his right to a
speedy trial and postpone the trial. Therefore, we conclude that the
district court did not err in denying these claims.
Fifteenth, appellant claimed that counsel was ineffective for
failing to move to dismiss the charges based on speedy trial violations and
double jeopardy concerns. Appellant failed to demonstrate deficiency or
prejudice. Any delay in trial beyond the 60-day statutory time limit was
due to appellant's refusal to work with counsel and his disruptive
behavior, which resulted in his commitment and treatment. See NRS
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Eames ILta
178.556; Furbay v. State, 116 Nev. 481, 484-85, 998 P.2d 553, 555 (2000).
As discussed earlier, double jeopardy was not at issue because appellant
had not yet been tried, convicted, or punished for any of the offenses with
which he was charged. See Jackson, 128 Nev. at , 291 P.3d at 1278.
Because a motion to dismiss on these bases would have been futile,
counsel was not ineffective for failing to file one. See Donovan, 94 Nev. at
675, 584 P.2d at 711. Thus, the district court did not err in denying these
claims.
Sixteenth, appellant claimed that counsel was ineffective for
recommending that the trial be postponed over appellant's objections and
for attempting to convince him to waive his right to a speedy trial.
Appellant failed to demonstrate that he was prejudiced, as counsel neither
asked for a continuance nor waived appellant's right to a speedy trial.
Thus, the district court did not err in denying this claim.
Seventeenth, appellant claimed that counsel was ineffective
for failing to file or address his proper person motions regarding
ineffective assistance of counsel and complaints against the clerk and the
district court. Appellant failed to demonstrate prejudice, as he failed to
demonstrate a reasonable probability that the outcome of the trial would
have been different had counsel considered those motions. Thus, the
district court did not err in denying this claim.
Eighteenth, appellant claimed that counsel was ineffective for
failing to invoke appellant's right to discovery regarding Hickman and for
failing to prevent Hickman from testifying at trial. Appellant did not
demonstrate deficiency or prejudice, as he failed to support his claim with
specific factual allegations. See Hargrove, 100 Nev. at 502-03, 686 P.2d at
225. Furthermore, counsel did object to Hickman's testifying at trial, but
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the trial court allowed Hickman to testify. Thus, the district court did not
err in denying this claim.
Nineteenth, appellant claimed that counsel was ineffective for
failing to call any defense witnesses, particularly when appellant informed
counsel about a "bar full of witnesses." Appellant failed to demonstrate
deficiency or prejudice. Before trial, counsel advised the district court that
he needed more time to investigate and prepare for trial but that
appellant wished to proceed to trial without any further delay and against
the advice of counsel. Furthermore, appellant failed to explain what
testimony any possible defense witnesses would have offered. Id.
Accordingly, the district court did not err in denying this claim.
Twentieth, appellant claimed that counsel was ineffective for
failing to move for a directed verdict after Hickman testified that the truck
incident was an accident. Appellant failed to demonstrate deficiency or
prejudice. Although the district court may enter a judgment of acquittal,
NRS 175.381(2), there is no provision in Nevada law for the entry of a
directed verdict in a criminal case. To the extent that appellant contended
that counsel should have requested a judgment of acquittal, a review of
the record reveals sufficient evidence to sustain his convictions for assault
with the use of a deadly weapon and battery with the use of a deadly
weapon. Holub testified at trial that appellant was driving slowly down
the street looking at Holub and Hickman, and then appellant turned his
truck towards them, sped up, and hit Hickman before reversing and
driving away. Hickman did not contradict this testimony, but rather
testified that he had his back turned and did not see the truck until
immediately before it struck him. From this evidence, a reasonable juror
could have concluded that appellant deliberately aimed his truck at the
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victims and thus committed assault against Holub and battery against
Hickman. Thus, appellant failed to demonstrate that his counsel was
ineffective for failing to move for a judgment of acquittal. Accordingly, the
district court did not err in denying this claim.
Twenty-first, appellant claimed that counsel was ineffective
for failing to move for a mistrial after the district court commented to the
jury that it would have found him guilty of the same counts as the jury
did. Appellant failed to demonstrate prejudice, as the district court made
this comment after the jury returned the verdict, and appellant could not
show that the comment improperly influenced the jury. Thus, the district
court did not err in denying this claim.
Twenty-second, appellant claimed that appellate counsel was
ineffective for raising only five claims on direct appeal, and for failing to
raise all of the issues that appellant raised in his proper person motions
filed in district court. Appellant failed to demonstrate deficiency or
prejudice, as he failed to support this claim with specific factual
allegations. See Hargrove, 100 Nev. at 502-03, 686 P.2d at 225. Appellant
failed to provide any explanation as to which specific claims counsel
should have raised on direct appeal or why those claims would have been
successful. Thus, the district court did not err in denying this claim.
To the extent that appellant raised the above claims outside
the context of ineffective assistance of counsel, he waived them by failing
to raise them on direct appeal or demonstrate that he had good cause for
his failure to raise them. See NRS 34.810(1)(b)(2), (3).
Appellant also claimed that his constitutional rights were
violated when (1) he was not allowed to call an attorney during
questioning by the police; (2) the district court removed him from the
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courtroom and did not appoint someone as amicus curiae during pretrial
hearings; (3) he did not receive a trial within 60 days of his arrest, and the
district court did not explain his speedy trial rights to him; (4) the clerk
refused to file his proper person documents, and the district court ordered
his proper person motions to be stricken as fugitive documents; (5) the
district court did not consider his complaints and motions regarding
judicial bias, ineffective assistance of counsel, and the clerk's refusal to file
his submissions; (6) the district court did not inquire about his counsel's
case load before appointing him; (7) he was under the influence of a pain
reliever and muscle relaxant, which prevented him from testifying at trial;
(8) the district court set a time limit on the trial and rushed the defense's
questioning of witnesses; (9) the district court did not instruct the jury as
to accident; and (10) the district court denied his post-sentencing motion to
dismiss counsel. These claims were also waived because they could have
been raised on direct appeal and appellant did not demonstrate cause and
actual prejudice for his failure to do so. NRS 34.810(1)(b)(2), (3).
Next, appellant claimed that the district court erred by
instructing the jury on flight. This claim was raised and rejected on direct
appeal, and the doctrine of the law of the case prevents further litigation
of this issue. See Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975).
Finally, appellant claimed that this court violated his
constitutional rights on direct appeal by denying his motions to dismiss
counsel and appoint alternate counsel. We conclude that the district court
did not err in denying these claims, as the district court does not have
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jurisdiction over this court's decisions. See Nev. Const. art. 6, § 6.
Accordingly, we
ORDER the judgment of the district court AFFIRMED. 3
J.
Gibbons
.,
.1).e ULCOAL
kr5_ J.
Douglas
J.
Saitta
cc: Hon. Linda Marie Bell, District Judge
James Lewis Atkins
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously presented in the proceedings
below, we have declined to consider them in the first instance.
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