Smith (Keith) v. State ( 2013 )

 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 claims that counsel was ineffective for
commenting on appellant's right to remain silent during closing
arguments. Appellant fails to demonstrate that counsel was deficient.
Trial counsel stated during closing arguments, "[o] ne of the most
important witnesses in this case didn't get on the stand and testify, but
you heard what they had to say, and that is Keith in that interview." At
the evidentiary hearing counsel testified that his choice to make this
statement was a tactical decision. He wanted to use appellant's
statements in the interview in order to tell appellant's side because
appellant did not testify at trial. "Tactical decisions [of counsel] are
virtually unchallengeable absent extraordinary circumstances," Ford v.
State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989), and appellant failed to
demonstrate any extraordinary circumstances. Therefore, the district
court did not err in denying this claim.
Second, appellant claims that trial counsel was ineffective for
failing to object to other bad act evidence that was introduced at trial.
Specifically, appellant claims that counsel should have objected to the
State's introduction of other "sex toys" and apparatuses found in
appellant's home that were not used in the crime. We note that owning
sex toys and apparatuses would not be a bad act pursuant to NRS
48.045(2) as owning these objects is not illegal. However, appellant also
argues that the evidence was irrelevant and that the probative value of
the evidence was substantially outweighed by the prejudicial effect of the
evidence. Appellant fails to demonstrate that he was prejudiced by trial
counsel's failure to argue that the evidence was irrelevant. Specifically,
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appellant fails to demonstrate a reasonable probability of a different
outcome at trial because there was overwhelming evidence presented at
trial. The evidence presented demonstrated that the victim was unable to
consent to sexual contact because the victim had been heavily drinking
prior to getting into appellant's cab. Appellant told the police in his
interview that the victim was in and out of consciousness during the cab
ride and at his home. Further, this court concluded on appeal that the
victim testified with some particularity regarding the incident, which was
sufficient in itself to uphold the conviction. Smith v. State, Docket No.
42069 (Order of Affirmance and Limited Remand to Correct the Judgment
of Conviction, December 21, 2005). Therefore, the district court did not err
in denying this claim.'
Third, appellant claims that trial counsel was ineffective for
failing to request the criminal history of the victim from the State.
Appellant fails to demonstrate that counsel was deficient or that he was
prejudiced. 2 Trial counsel testified at the evidentiary hearing that his
office had access to computer programs that could produce a person's
criminal history. He stated that he asked his investigator to look into the
'To the extent that appellant claims that appellate counsel should
have raised the underlying claim on appeal, appellant fails to demonstrate
that this claim had a reasonable probability of success on appeal because
of the overwhelming evidence presented at trial. Kirksey v. State, 112
Nev. 980, 998, 923 P.2d 1102, 1114 (1996).
2 Further,to the extent that appellant claims that the district court
erred by denying his motion for discovery regarding the victim's criminal
history, appellant fails to demonstrate that the district court abused its
discretion in denying the motion. Means, 120 Nev. at 1007, 103 P.3d at
29.
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victim's criminal history and that the investigator did not inform him of
any criminal history. Further, appellant fails to demonstrate a reasonable
probability of a different outcome at trial had trial counsel requested the
criminal history from the State given the overwhelming evidence
presented at trial, including appellant's statements to the police that the
victim was in and out of consciousness. Therefore, the district court did
not err in denying this claim.
Fourth, appellant claims that trial counsel was ineffective for
failing to test the victim's blood sample to see if it was positive for
methamphetamine. Appellant fails to demonstrate that trial counsel was
deficient or that he was prejudiced. 3 Trial counsel testified at the
evidentiary hearing that he did not pursue the blood sample because the
theory of the prosecution was that the victim was too intoxicated to
consent, and if the victim was also on methamphetamine in addition to
drinking, that would only help the State. "Tactical decisions [of counsel]
are virtually unchallengeable absent extraordinary circumstances," Ford,
105 Nev. at 853, 784 P.2d at 953, and appellant failed to demonstrate any
extraordinary circumstances. Further, appellant fails to demonstrate a
reasonable probability of a different outcome at trial had counsel further
tested the blood sample. Appellant claims that because
methamphetamine is a stimulant it may have shown that the victim was
aware of what she was doing and that she consented to the sexual contact.
As stated above, appellant's own statements to the police demonstrate
3 Further, to the extent that appellant claims that the district court
erred by denying his motion for discovery regarding the testing of the
blood sample, appellant fails to demonstrate that the district court abused
its discretion in denying the motion. Id.SUPREME COURT
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that the victim was in and out of consciousness during the entire incident,
which does not change even if counsel demonstrated that she was using
methamphetamine. Therefore, the district court did not err in denying
this claim.
Fifth, appellant argues that trial counsel was ineffective for
failing to object to the nurse's testimony regarding the blood sample
because she was not a qualified expert relying on Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 564
U.S. , 131 S.Ct. 2705 (2011). Appellant fails to demonstrate that these
cases apply retroactively to him. Generally, a new rule will not apply
retroactively to a person whose conviction was final before the new rule
was announced. Appellant's conviction was final on December 17, 2006,
and Melendez-Diaz and Bullcoming were not decided until 2009, and 2011,
respectively. Appellant fails to allege facts to support that he met either
exception to the general principle that such rules do not apply
retroactively to cases which were already final. Colwell v. State, 118 Nev.
807, 816, 59 P.3d 463, 469-70 (2002). Further, if this claim was not new
and was available to be raised after Crawford v. Washington, 541 U.S. 36(2004) was decided, appellant failed to demonstrate that he was prejudiced
by counsel's failure to challenge the testimony or appellate counsel's
failure to raise this claim on appeal. As stated above, overwhelming
evidence was presented at trial and the absence of the nurse's testimony
regarding the blood sample would not have affected the strength of the
evidence against appellant. Therefore, the district court did not err in
denying this claim.
Sixth, appellant argues that the district court erred in denying
additional claims raised in the proper person petition. Appellant fails to
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provide any cogent argument as to how or why the district court erred in
denying these claims and merely refers to the proper person petition
without discussing any of the issues raised therein. "It is appellant's
responsibility to present relevant authority and cogent argument; issues
not so presented need not be addressed by this court." Maresca v. State,
103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Moreover, appellant may not
incorporate by reference arguments made in documents filed before the
district court. See NRAP 28(e)(2). Thus, we do not address these claims.
Finally, appellant claims that the district court erred in
denying his claim that the cumulative errors of counsel entitled him to
relief. Appellant fails to demonstrate any alleged errors by counsel, singly
or cumulatively, would have had a reasonable probability of altering the
outcome of trial. Therefore, we
ORDER the judgment of the district court AFFIRMED.
J.
Gibbons
GA et , J.
Dougl
J.
Saitta
cc: Hon. Jerome T. Tao, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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