Tiffany (David) v. State ( 2013 )

 the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
First, appellant argues that his pretrial counsel was
ineffective for failing to seek the disqualification of Judge Victor L. Miller
and Judge Donald Mosley. Appellant failed to demonstrate deficiency or
prejudice. Appellant claims that Judge Miller should have recused
himself because he had recused himself in a previous case involving
appellant. However, in response to counsel's inquiry, Judge Miller stated
that he had recused himself previously because he had knowledge of the
victims in that case. Because Judge Miller did not have knowledge of the
victims in this case, counsel had no basis to seek his disqualification. See
Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006) ("Trial
counsel need not lodge futile objections to avoid ineffective assistance of
counsel claims."). Appellant also claims that Judge Mosley should have
recused himself because he was biased, as he denied appellant's motion for
expert and investigative fees and expressed concerns about the costs of
indigent defense. Appellant failed to demonstrate that Judge Mosley's
rulings and comments constituted bias, see Cameron v. State, 114 Nev.
1281, 1283, 968 P.2d 1169, 1171 (1998), and thus a motion to disqualify on
this basis would not have been successful. Furthermore, to the extent that
appellant argues that Judge Mosley improperly denied his motion for
investigative fees, he cannot demonstrate prejudice, as this court
concluded on direct appeal that the denial of the motion was harmless
error in light of the overwhelming evidence of guilt presented at trial.
Tiffany v. State, Docket No. 49817 (Order of Affirmance, April 13, 2010).
Therefore, the district court did not err in denying this claim.
Second, appellant argues that his pretrial counsel was
ineffective for failing to lodge objections during the preliminary hearing.
SUPREME COURT Appellant failed to demonstrate deficiency or prejudice, as he did not
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explain what objections counsel should have made and how those
objections would have affected the outcome of the proceedings. See
Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).
Therefore, the district court did not err in denying this claim.
Third, appellant contends that his pretrial counsel was
ineffective for failing to object to the State's supplemental notice of
witnesses. Appellant failed to demonstrate deficiency or prejudice, as the
notice was timely filed and counsel cannot be deemed ineffective for failing
to lodge futile objections. See NRS 174.234; Ennis, 122 Nev. at 706, 137
P.3d at 1103. To the extent that appellant argues that the notice would
have been untimely had counsel asserted his right to a speedy trial, he
fails to make any cogent argument on appeal regarding his right to a
speedy trial. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
Therefore, the district court did not err in denying this claim.
Fourth, appellant contends that trial counsel was ineffective
for failing to object to the district court's denial of appellant's motions to
reduce bail. This claim is not cognizable in a post-conviction petition for a
writ of habeas corpus, as it does not challenge his conviction or sentence.
NRS 34.720(1); NRS 34.724(1). Therefore, the district court did not err in
denying this claim.
Fifth, appellant contends that trial counsel was ineffective for
failing to object to improper questions and testimony at trial. Appellant
asserts that counsel should have objected to: (1) J.M.'s speculative
testimony about how many times he smoked marijuana with appellant;
(2) C.J.'s and K.T.'s testimony about T.T. spending the night in appellant's
room, as they lacked personal knowledge; (3) the prosecutor's leading
questions of K.T. regarding appellant's signals simulating oral sex;
(4) appellant's ex-wife's hearsay testimony about K.T. doing drugs at
SUPREME COURT appellant's house; and (5) the prosecutor's premature use of a written
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statement to refresh T.T.'s memory about appellant's threats. Appellant
failed to demonstrate deficiency or prejudice. The testimony of J.M., C.J.,
and K.T. was based on their own personal knowledge, and thus any
objection would have been unsuccessful. See Ennis, 122 Nev. at 706, 137
P.3d at 1103. Counsel did in fact object to the ex-wife's hearsay testimony,
and counsel was not unreasonable for failing to object to the prosecutor's
improper questions where the testimony itself was admissible.
Furthermore, in light of the overwhelming evidence of guilt, appellant
could not demonstrate a reasonable probability of a different outcome at
trial had counsel made these objections. Therefore, the district court did
not err in denying this claim.
Sixth, appellant argues that trial counsel was ineffective for
failing to timely move for a psychological evaluation of victim T.T.
Appellant failed to demonstrate prejudice. In denying his untimely
motion for a psychological evaluation, the district court found that an
evaluation was not warranted because the victim's testimony was
supported by corroborating evidence and there was no indication that the
victim's mental state affected his veracity. See Abbott v. Nevada, 122 Nev.
715, 724, 138 P.3d 462, 468 (2006). Therefore, appellant failed to show a
reasonable probability of a different outcome had counsel filed a timely
motion. Accordingly, the district court did not err in denying this claim.
Seventh, appellant argues that trial counsel was ineffective for
failing to permit appellant to meaningfully participate in the preparation
of his defense. Specifically, appellant contends that counsel failed to file
various motions requested by appellant, failed to communicate with him
after the trial, and failed to make a Bradyl request for the victim's school
'Brady v. Maryland, 373 U.S. 83 (1963).
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records. Appellant failed to demonstrate prejudice. Appellant did not
explain how counsel's failure to file various motions and communicate
with appellant after trial affected the outcome of the proceedings. See
Hargrove, 100 Nev. 498 at 502, 686 P.2d at 225. Appellant's Brady claim
was rejected by this court on direct appeal, and thus appellant could not
demonstrate a reasonable probability of a different outcome but for
counsel's alleged failure to request the school records. Therefore, the
district court did not err in denying this claim.
Finally, appellant argues that the cumulative effect of
ineffective assistance of counsel warrants vacating his judgment of
conviction. Because appellant's ineffective-assistance claims lacked merit,
he failed to demonstrate any cumulative error. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Gibbons
J.
Douglas
Saitta
cc: Hon. Doug Smith, District Judge
Matthew D. Carling
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
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