Reed (Herman) v. State ( 2013 )

 First, appellant claimed that trial counsel was ineffective for
failing to adequately communicate with him and investigate appellant's
allegations that he did not consent to the search of his car and that the
police planted marijuana and a stolen firearm in his car. Appellant failed
to demonstrate prejudice, as he did not explain how further
communication or investigation would have helped with his defense or
changed the outcome of the trial. See Molina v. State, 120 Nev. 185, 192,
87 P.3d 533, 538 (2004); Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d
222, 225 (1984). Thus, the district court did not err in denying this claim.
Second, appellant claimed that trial counsel was ineffective for
failing to adequately litigate a motion to suppress the firearm and
marijuana that were seized from his car. Specifically, appellant contended
that counsel should not have conceded that the search of his car was
consensual and should have argued that the evidence was planted by the
police. Appellant failed to demonstrate that counsel's performance was
deficient or that he was prejudiced, as he failed to demonstrate that a
motion to suppress would have been successful. See Kirksey v. State, 112
Nev. 980, 990, 923 P.2d 1102, 1109 (1996); see also Donovan v. State, 94
Nev. 671, 675, 584 P.2d 708, 711 (1978) (holding that counsel cannot be
ineffective for failing to file a futile motion). Two police officers testified
that appellant consented to a search of his car during a routine traffic stop
and that they found marijuana and a firearm in the car. In light of this
testimony, appellant failed to demonstrate a reasonable probability that
the evidence would have been suppressed had counsel argued that the
search was non-consensual and that the evidence was planted by the
police. Therefore, the district court did not err in denying this claim.
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Third, appellant claimed that counsel was ineffective for
failing to object at trial to the admission of the evidence seized from
appellant's car. Appellant failed to demonstrate that counsel's
performance was deficient or that he was prejudiced, as the district court
made a pretrial ruling that the evidence was admissible at trial. Counsel
cannot be deemed ineffective for failing to make a futile objection or
motion. See Donovan, 94 Nev. at 675, 584 P.2d at 711. Thus, the district
court did not err in denying this claim.
Fourth, appellant claimed that trial counsel was ineffective for
failing to present appellant's theory of defense—non-consensual search
and planted evidence—at trial. Appellant failed to demonstrate that
counsel's performance was deficient or that he was prejudiced. At trial,
counsel challenged the police officers' testimony about the traffic stop and
search and seizure and argued that the officers were not telling the truth
and that appellant did not consent to the search. Thus, appellant's claim
is repelled by the record, see Hargrove, 100 Nev. at 503, 686 F'.2d at 225,
and the district court did not err in denying this claim.
Fifth, appellant claimed that counsel was ineffective for failing
to object to the admission of appellant's statements to the police as
impermissible hearsay testimony. Appellant failed to demonstrate that
his counsel's performance was deficient or that he was prejudiced, as his
statements were not hearsay. See NRS 51.035(3)(a). Therefore, the
district court did not err in denying this claim.
Finally, appellant claimed that counsel had an actual conflict
of interest. Appellant's claim of a conflict of interest was based entirely on
his above allegations of ineffective assistance and, thus, he failed to
demonstrate an actual conflict of interest. See Cuyler v. Sullivan, 446 U.S.
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335, 348, (1980); Clark v. State, 108 Nev. 324, 326, 831 P.2d 1374, 1376
(1992). Accordingly, the district court did not err in denying this claim.
For the foregoing reasons, we conclude that the district court
did not err in denying the petition, and we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
cc: Hon. Jennifer P. Togliatti, District Judge
Herman Lee Reed
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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