Paez (Evier) v. State ( 2013 )

 "A defendant has a Sixth Amendment right to conflict-free
representation." Daniels v. Woodford, 428 F.3d 1181, 1196 (9th Cir. 2005).
To establish a violation of this right, a defendant "must show that an
actual conflict of interest adversely affected his lawyer's performance."
United States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998) (internal
quotation marks omitted). "Conflict of interest and divided loyalty
situations can take many forms, and whether an actual conflict exists
must be evaluated on the specific facts of each case. In general, a conflict
exists when an attorney is placed in a situation conducive to divided
loyalties." Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376 (1992)
(internal quotation marks omitted).
An attorney's duties to current and former clients are
governed by the Nevada Rules of Professional Conduct (RPC). Rule 1.7
outlines the duties owed by an attorney to current clients, Rule 1.9
outlines the duties owed by an attorney to former clients, Rule 1.10
outlines the imputation of conflicts, and Rule 1.11(d) subjects current
government attorneys to rules 1.7 and 1.9 regarding personal conflicts of
interest but does not provide for the imputation of conflicts. The
commentary to the ABA Model Rule 1.11 emphasizes that "Rule 1.10 is
not applicable to the conflicts of interest addressed by this Rule," and
explains that "[b] ecause of the special problems raised by imputation
within a government agency, [Rule 1.11(d)] does not impute the conflicts of
a lawyer currently serving as an officer or employee of the government to
other associated government officers or employees, although ordinarily it
will be prudent to screen such lawyers." Model Rules of Prof' Conduct R.
1.11 cmt. 2 (2013); see RPC 1.0A (comments to the ABA Model Rules may
be consulted when interpreting and applying Nevada's Rules).
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The record reveals that the public defender's office
represented Paez's victim in an unrelated matter four years before the
instant offense. Paez and the victim were not represented by the same
deputy public defenders. The potential conflict was discovered shortly
before trial. And the district court heard argument on the conflict,
established a "Chinese wall" to protect the victim's privileged information,
and denied the deputy public defender's motion to withdraw. Given this
record, we conclude that Paez has not demonstrated the existence of an
actual conflict, the potential conflict could not be imputed to Paez's deputy
public defender, the district court's decision to screen the deputy public
defender was a prudent measure, and the late discovery and notice of the
potential conflict was of no consequence. 2
Perjury
Paez contends that he was deprived of his constitutional rights
when the district court, prosecutor, and defense counsel allowed the victim
to present false testimony to the jury. However, Paez did not object to the
victim's testimony at trial and the error is not plain from our review of the
record. See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008)
(reviewing unpreserved claims for plain error). Alternatively, Paez claims
that defense counsel was ineffective for failing "to obtain the information
and/or confront [the victim] with it." But this claim is not properly raised
on appeal. Archanian v. State, 122 Nev. 1019, 1036, 145 P.3d 1008, 1020-
21 (2006) ("This court has repeatedly declined to consider ineffective-
assistance-of-counsel claims on direct appeal unless the district court has
2 Theprosecutor's special responsibilities under RPC 3.8(d) are not
implicated here because the existence of a potential conflict is not
exculpatory evidence or information.
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held an evidentiary hearing on the matter or an evidentiary hearing would
be needless.").
Firearm evidence
Paez contends that he was deprived of his constitutional rights
when he was not allowed to introduce evidence that he did not own a .22
caliber firearm. "We review a district court's decision to admit or exclude
evidence for abuse of discretion." Mclellan v. State, 124 Nev. 263, 267, 182
P.3d 106, 109 (2008). During cross-examination, defense counsel asked a
police detective whether Paez legally owned two handguns, the State
objected, and the district court sustained the objection after a bench
conference. The district court made a record of the bench conference,
stating that Paez had registered the handguns before he was convicted of
a felony and any questions as to why he would not register newly acquired
handguns would open the door to evidence of the felony conviction. We
conclude from this record that the district court did not abuse its
discretion by excluding evidence that Paez had legally owned firearms in
the past. See NRS 48.035(1).
Pretrial and in-court identifications
Paez contends that he was deprived of his constitutional rights
when the district court admitted identification evidence because the
victim's in-court and out-of-court identifications were based on an
unnecessarily suggestive photographic line-up, which was also admitted
into evidence. However, Paez did not object to the admission of this
evidence and the error is not plain from our review of the record. See
Thompson v. State, 125 Nev. 807, 813, 221 P.3d 708, 713 (2009) ("A
photographic lineup is suggestive if, given the totality of the
circumstances, the procedure was so unduly prejudicial as fatally to taint
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the defendant's conviction." (internal quotation marks and brackets
omitted)); Valdez, 124 Nev. at 1190, 196 P.3d at 577 (reviewing
unpreserved claims for plain error).
Having concluded that Paez is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED. 3
J.
Parraguirre
cc: Chief Judge, Eighth Judicial District Court
Hon. Valerie Adair, District Judge
Travis E. Shetler
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3We decline to consider Paez's claims that the public defender's
office represented the victim on more than one occasion and that a witness
may have made exculpatory statements to the prosecutor prior to the
preliminary hearing because these claims do not properly appear in the
trial record and were not considered by the district court in the first
instance. See NRAP 10(a); Davis v. State, 107 Nev. 600, 606, 817 P.2d
1169, 1173 (1991), overruled on other grounds by Means v. State, 120 Nev.
1001, 1012-13, 103 P.3d 25, 33 (2004); Carson Ready Mix, Inc. v. First
Nat'l Bank, 97 Nev. 474, 476, 635 P.2d 276, 277 (1981).
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