Moore (Devell) v. State ( 2013 )

 by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012,
103 P.3d 25, 33 (2004).
First, appellant claimed that his trial counsel had a conflict of
interest and was ineffective because counsel worked for the public
defender's office and was compensated for expenses at the beginning of the
case rather than at the end. Appellant failed to demonstrate that
counsel's performance was deficient or that he was prejudiced. That
counsel worked for the public defender's office was insufficient to
demonstrate an actual conflict of interest and appellant provided no
additional facts which would demonstrate that his counsel had divided
loyalties. See Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376
(1992). Appellant failed to demonstrate it was unreasonable for counsel to
receive expenses at the beginning of the case or a reasonable probability of
a different outcome had counsel requested a different payment schedule
for expenses. Therefore, the district court did not err in denying this
claim.
Second, appellant claimed that counsel failed to communicate
with him regarding trial strategy and failed to investigate appellant's
theory of the case. Appellant failed to demonstrate that he was
prejudiced. As appellant confessed to committing the crimes, appellant
failed to demonstrate a reasonable probability of a different outcome at
trial had he and counsel had discussions regarding trial strategy.
Appellant also failed to demonstrate what further investigation into his
theory of the case would have revealed. See Molina v. State, 120 Nev. 185,
192, 87 P.3d 533, 538 (2004). Therefore, the district court did not err in
denying this claim.
Third, appellant claimed that counsel failed to interview the
victim or the victim's mother prior to trial. Appellant failed to
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demonstrate that his counsel's performance was deficient or that he was
prejudiced. Counsel cross-examined the victim and the victim's mother at
length during trial and appellant failed to demonstrate reasonable counsel
would have needed further information from these witnesses for such
questioning. Given appellant's confession, appellant failed to demonstrate
a reasonable probability of a different outcome at trial had counsel
obtained further information from the victim or the victim's mother before
trial. Therefore, the district court did not err in denying this claim.
Fourth, appellant claimed that counsel failed to seek a pretrial
competency evaluation as appellant asserted he used antipsychotic
medication during trial. Appellant failed to demonstrate that counsel's
performance was deficient or that he was prejudiced. That appellant used
medication during trial was insufficient to demonstrate that he did not
have the ability to consult with his attorney with a reasonable degree of
rational understanding and that he did not have a factual understanding
of the proceedings against him. See Melchor-Gloria v. State, 99 Nev. 174,
179-80, 660 P.2d 109, 113 (1983) (citing Dusky v. United States, 362 U.S.
402, 402 (1960)). Appellant failed to demonstrate a reasonable probability
of a different outcome had counsel sought a pretrial competency
evaluation. Therefore, the district court did not err in denying this claim.
Fifth, appellant claimed that counsel failed to argue that the
justice court did not have jurisdiction to consider this matter as it was a
felony. Appellant failed to demonstrate that counsel's performance was
deficient or that he was prejudiced. Appellant only appeared before the
justice court before he waived the preliminary hearing and then all
remaining proceedings were properly conducted in district court. See NRS
171.178(1), (4); NRS 171.196(1). Appellant failed to demonstrate a
reasonable probability of a different outcome at trial had counsel argued
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no proceedings should have been conducted in the justice court. Therefore,
the district court did not err in denying this claim.
Sixth, appellant claimed that counsel should have asserted the
Iprior-bad-acts evidence was irrelevant, unduly prejudicial, and without
sufficient proof. Appellant failed to demonstrate that counsel's
performance was deficient or that he was prejudiced. Counsel objected to
the admission of the prior bad acts, but the district court overruled the
objection. Appellant failed to demonstrate a reasonable probability of a
different outcome had counsel raised further objections as the district
court conducted a pretrial hearing and concluded that (1) the prior bad
acts were proven by clear and convincing evidence; (2) the prior bad acts
were relevant to the crime charged and offered for a purpose other than
proving the defendant's propensity; and (3) the probative value of the
evidence was not substantially outweighed by the danger of unfair
prejudice. See Bigpond v. State, 128 Nev. „ 270 P.3d 1244, 1249-50
(2012). Therefore, the district court did not err in denying this claim.
Seventh, appellant claimed that his trial counsel failed to
argue that he had not been convicted of the prior bad acts and failed to file
meritorious pretrial motions. Appellant failed to demonstrate that his
counsel's performance was deficient or that he was prejudiced. A
conviction is not necessary for a prior bad act to be admissible at trial. See
Bostic v. State, 104 Nev. 367, 371, 760 P.2d 1241, 1244 (1988). Appellant
failed to demonstrate a reasonable probability of a different outcome had
counsel raised further challenges to the admission of the prior-bad-act
evidence or filed additional pretrial motions. Therefore, the district court
did not err in denying this claim.
Eighth, appellant claimed that his counsel waived the
preliminary hearing without appellant's consent. Appellant failed to
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demonstrate that counsel waived the preliminary hearing without his
consent. Appellant failed to demonstrate a reasonable probability of a
different outcome had he proceeded to a preliminary hearing. Therefore,
the district court did not err in denying this claim.
Ninth, appellant claimed that counsel failed to challenge a
juror who expressed aversion towards sexual-assault allegations as she
had a friend who had been sexually assaulted in a different country, but
the government in that country had not prosecuted the assailant.
Appellant failed to demonstrate that counsel's performance was deficient
or that he was prejudiced. Counsel questioned the juror and the juror
stated she could be fair. Appellant failed to demonstrate a reasonable
probability of a different outcome at trial had counsel taken further
actions regarding this juror. Therefore, the district court did not err in
denying this claim.
Tenth, appellant claimed that counsel failed to object to
prosecutorial and judicial misconduct. Appellant failed to demonstrate
that his counsel's performance was deficient or that he was prejudiced.
Appellant failed to demonstrate that any of the challenged comments by
the State were not supported by evidence. Greene v. State, 113 Nev. 157,
177, 931 P.2d 54, 66-67 (1997), receded from on other grounds by Byford v.
State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000)). Further, appellant
failed to identify any judicial misconduct, and therefore, failed to
demonstrate he was entitled to relief for this claim. See Hargrove v. State,
100 Nev. 498, 502, 686 P.2d 222, 225 (1984). Appellant failed to
demonstrate a reasonable probability of a different outcome at trial had
counsel raised objections of this nature as appellant confessed. Therefore,
the district court did not err in denying this claim.
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Eleventh, appellant claimed that counsel was ineffective for
failing to cross-examine the victim. Appellant failed to demonstrate that
counsel's performance was deficient or that he was prejudiced. Counsel
did cross-examine the victim. Given appellant's confession, appellant
failed to demonstrate a reasonable probability of a different outcome at
trial had counsel further questioned the victim. Therefore, the district
court did not err in denying this claim.
Twelfth, appellant claimed that counsel failed to allow
appellant to testify at trial. Appellant failed to demonstrate that his
counsel's performance was deficient or that he was prejudiced. Appellant
personally informed the district court that he had discussed testifying
with counsel and had decided not to testify. Appellant failed to
demonstrate a reasonable probability of a different outcome at trial had he
testified as he confessed to the police. Therefore, the district court did not
err in denying this claim.
Thirteenth, appellant claimed that counsel failed to object to
the jury instruction regarding substantial bodily harm or argue there was
insufficient evidence of substantial bodily harm. Appellant failed to
demonstrate deficiency or prejudice as appellant was not charged with
causing substantial bodily harm to the victim. Therefore, the district
court did not err in denying this claim.
Fourteenth, appellant claimed that counsel was ineffective for
failing to request instructions on assault, coercion, and sexual seduction.
Appellant failed to demonstrate counsel's performance was deficient or
that he was prejudiced. Appellant failed to demonstrate that reasonable
counsel would have requested instructions regarding uncharged criminal
conduct in this matter. Appellant failed to demonstrate a reasonable
probability of a different outcome at trial had counsel requested additional
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instructions given the substantial evidence of his guilt for the charged
crimes. Therefore, the district court did not err in denying this claim.
Fifteenth, appellant claimed that counsel failed to argue there
was insufficient evidence for counts three and four. Appellant failed to
demonstrate that counsel's performance was deficient or that he was
prejudiced. Counsel argued that the victim had fabricated the allegations
of sexual misconduct and appellant was acquitted of count four, lewdness
with a child under the age of 14. Regarding count three, a charge of
sexual assault with a minor under the age of 14, sufficient evidence was
presented that appellant unlawfully performed oral sex upon the child
victim given the victim's testimony, her statements to the authorities, and
appellant's confession. See Crowley v. State, 120 Nev. 30, 35, 83 P.3d 282,
286 (2004). Appellant failed to demonstrate a reasonable probability of a
different outcome had counsel made further arguments regarding the
sufficiency of the evidence. Therefore, the district court did not err in
denying this claim.
Sixteenth, appellant claimed that counsel failed to argue that
appellant was charged with committing the sexual acts on the same day,
but the victim testified that they occurred on different days. Appellant
failed to demonstrate that his counsel's performance was deficient or that
he was prejudiced. Appellant was charged with committing the sexual
offenses between August 2008 and October 2008, not on only one day.
Further, time and date are not essential elements of a sexual offense
against a minor. Cunningham v. State, 100 Nev. 396, 400, 683 P.2d 500,
502 (1984). Appellant failed to demonstrate a reasonable probability of a
different outcome had counsel objected to the victim's testimony regarding
the timing of the sexual assaults. Therefore, the district court did not err
in denying this claim.
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Seventeenth, appellant claimed that counsel failed to seek
dismissal of the sexual assault charges based upon the victim's testimony
that appellant's penis did not completely penetrate her. Appellant failed
to demonstrate that counsel's performance was deficient or that he was
prejudiced. The victim testified that appellant penetrated her, but that
appellant was unable to go in the entire way. This was sufficient
testimony to demonstrate that appellant committed sexual assault as
penetration need only be slight. See NRS 200.364(4); NRS 200.366(1).
Appellant failed to demonstrate a reasonable probability of a different
outcome had counsel argued that the victim's testimony regarding
penetration was insufficient to establish that appellant sexually assaulted
her. Therefore, the district court did not err in denying this claim.
Eighteenth, appellant claimed that counsel was ineffective for
instructing him to decline to talk with the Division of Parole and
Probation as he faced additional charges in Colorado. Appellant failed to
demonstrate that counsel's performance was deficient or that he was
prejudiced. Appellant failed to demonstrate that advice from counsel
regarding possible charges in Colorado was unreasonable. Appellant
failed to demonstrate a reasonable probability of a different outcome had
counsel not advised appellant to decline to talk with the division.
Therefore, the district court did not err in denying this claim.
Nineteenth, appellant claimed that counsel was ineffective for
failing to correct an error in the presentence investigation report (PSI),
failing to argue consecutive sentences were illegal for this matter, failing
to file a sentencing memorandum, and failing to submit mitigating
evidence. Appellant failed to demonstrate that counsel's performance was
deficient or that he was prejudiced. Appellant failed to identify any errors
contained in the PSI. See Hargrove, 100 Nev. at 502, 686 P.2d at 225.
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Moreover, it was within the district court's discretion to sentence
appellant to consecutive terms, see NRS 176.035(1), and appellant failed to
demonstrate that counsel was ineffective for failing to argue such a
sentence was illegal. Appellant failed to demonstrate a reasonable
probability of a different outcome at the sentencing hearing had counsel
argued that the victim was not injured, appellant was a productive citizen,
house arrest was more suitable than prison, appellant was cooperative,
appellant was remorseful, appellant's confession was an attempt to receive
counseling, concurrent sentences were warranted, or the police officer
believed appellant was misguided and not a predator. Therefore, the
district court did not err in denying this claim.
Next, appellant claimed that his appellate counsel was
ineffective. To prove ineffective assistance of appellate counsel, a
petitioner must demonstrate that counsel's performance was deficient in
that it fell below an objective standard of reasonableness, and resulting
prejudice such that the omitted issue would have had a reasonable
probability of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923
P.2d 1102, 1114 (1996). Both components of the inquiry must be shown.
Strickland v. Washington, 466 U.S. 668, 697 (1984). Appellate counsel is
not required to raise every non-frivolous issue on appeal. Jones v. Barnes,
463 U.S. 745, 751 (1983). Rather, appellate counsel will be most effective
when every conceivable issue is not raised on appeal. Ford v. State, 105
Nev. 850, 853, 784 P.2d 951, 953 (1989).
First, appellant claimed that his appellate counsel was
ineffective for failing to raise the previous underlying claims on direct
appeal. Appellant failed to demonstrate that appellate counsel's
performance was deficient or that he was prejudiced. Appellant asserted
that he requested counsel to raise the previous underlying claims on direct
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appeal, but was told by appellate counsel that they were improper claims.
Tactical decisions such as a decision to decline to raise certain arguments
on direct appeal "are virtually unchallengeable absent extraordinary
circumstances," id., which appellant did not demonstrate. As discussed
previously, appellant failed to demonstrate that the underlying claims had
merit, and therefore, failed to demonstrate a reasonable likelihood of
success had they been argued on direct appeal. Therefore, the district
court did not err in denying these claims.
Second, appellant claimed that his appellate counsel was
ineffective because his direct appeal was dismissed due to a jurisdictional
error and the remittitur has not issued. Appellant failed to demonstrate
either deficiency or prejudice because his direct appeal was not dismissed
due to a jurisdictional error. This court considered appellant's claims on
the merits and affirmed the judgment of conviction. Moore v. State,
Docket No. 55527 (Order of Affirmance, June 8, 2011). The remittitur
issued on July 5, 2011. Therefore, the district court did not err in denying
this claim.
Next, appellant claimed that the jury contained only
Caucasians, the district court sentenced him after the start of appellate
proceedings, he was improperly charged by criminal complaint and did not
waive his right to a grand jury, Nevada sentences are longer than
neighboring states, and MRS 200.364 and NRS 200.366 are
unconstitutional. Appellant also claimed his sentence was
unconstitutional because it violated the Equal Protection Clause, his due
process rights were violated, it was a bill of attainder or of pains and
penalties, it violated his right to confrontation, it was cruel and unusual
punishment because it imposed excessive fines and penalties, and it
violated his rights regarding privileges and immunities. These claims are
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waived as they could have been raised in appellant's direct appeal, and
appellant failed to demonstrate good cause for his failure to do so. See
NRS 34.810(1)(b)(2), Pellegrini v. State, 117 Nev. 860, 884, 34 P.3d 519,
535 (2001). Therefore, the district court did not err in denying these
claims.
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 2
Douglas Saitta
cc: Hon. James M. Bixler, District Judge
Devell Moore
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2We 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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