Branagan (Thomas) v. State ( 2015 )

 court's factual findings if supported by substantial evidence and not
clearly erroneous but 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, Branagan contends that trial counsel was ineffective for
waiving 3 days of the 10-day notice requirement under NRS 51.385(3)
after the district court continued the trial 7 days to provide adequate
notice at the request of the State. NRS 51.385(3) provides that when the
State seeks the admission of a statement by a child describing sexual
conduct or physical abuse, and "the child is unavailable or unable to
testify, written notice must be given to the defendant at least 10 days
before the trial of the prosecution's intention to offer the statement in
evidence." Branagan fails to demonstrate that trial counsel's performance
was deficient or prejudice. The district court found that any failure to
waive the additional three days "would have been a futile act on trial
counsel's part" because "the court would have continued the trial anyway
to accommodate the proper notice." The district court also found that
notice under NRS 51.385(3) was not required because the victim testified •
and was subject to cross-examination. See NRS 51.385(1)(b). We conclude
that the district court did not err by denying this claim.
Second, Branagan contends that trial counsel was ineffective
for failing to investigate medical issues relating to potential defenses.
Branagan claims that such an investigation would have shown that his
rights were violated under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12132 (1990), by Nevada's failure to recognize diminished
capacity as a defense because, under the ADA, a defendant must "be
allowed to present evidence of their disability in any proceeding."
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Branagan notes that lilt is quite possible that [he] was involuntarily
intoxicated." In a related argument, Branagan contends that trial counsel
was ineffective for failing to apply and enforce the ADA in order to present
a diminished capacity/involuntary intoxication defense. 2 Branagan fails to
demonstrate that trial counsel's performance was deficient or prejudice.
Although "the technical defense of diminished capacity is not available in
Nevada," Crawford v. State, 121 Nev. 744, 757, 121 P.3d 582, 591 (2005),
Branagan was not prohibited from presenting evidence regarding his
mental health and use of medications. The district court noted that the
jury did, in fact, hear about Branagan's mental health and use of various
medications through his own testimony on direct examination. Therefore,
Branagan did not demonstrate that the failure to recognize the defense of
diminished capacity prevented him from presenting evidence of his
disability. Further, the district court found that Branagan failed to
specify "what the desired investigation would have revealed" or
demonstrated that "but for counsel's errors, the result would have been
different." We agree and conclude that the district court did not err by
denying this claim.
Third, Branagan contends that trial counsel was ineffective for
failing to investigate and use the preliminary hearing transcript to
impeach the child-victim and her mother on cross-examination. Branagan
argues that their trial testimony was inconsistent and differed greatly
2Although the supplemental habeas petition filed by Branagan
discussed the ADA and Nevada's failure to recognize a diminished
capacity defense, it was not specifically alleged that trial counsel was
ineffective for failing to apply and enforce the ADA in order to present
such a defense.
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from their testimony at the preliminary hearing. Branagan fails to
demonstrate that trial counsel's performance was deficient or prejudice.
The district court found that Branagan's claims were belied by the record
because "trial counsel did in fact cross-examine the witnesses at the trial
using the preliminary hearing transcript." The district court noted that
counsel impeached both the victim and her mother "using their previous
statements, their previous descriptions of the incident, how the victim had
previously described the testimony, and other topics." The district court
determined that counsel provided "a meaningful cross-examination" of the
two witnesses indicating "a well-reasoned strategic decision." See
generally Rhyne v. State, 118 Nev. 1, 8, 38 P.3d 163, 167-68 (2002)
(explaining that trial tactics are within counsel's control). The district
court also determined that Branagan's allegations of prejudice amounted
to "unsupported conclusory statements." We agree and conclude that the
district court did not err by denying this claim.
Fourth, Branagan contends that trial counsel was ineffective
for failing to raise a hearsay objection to the testimony of the victim's
mother regarding the victim's out-of-court statements. Branagan claims •
that counsel did not object to the testimony "because he clearly never read
the case file or investigated the case." Branagan fails to demonstrate that
trial counsel's performance was deficient or prejudice. The district court
determined that an objection on hearsay grounds would have been futile
because, after the trustworthiness hearing conducted outside the presence
of the jury, the mother's testimony was deemed admissible pursuant to
NRS 51.385. See Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103
(2006) (stating that counsel cannot be deemed ineffective for failing to
make futile objections). The district court also determined that Branagan
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failed to demonstrate that the outcome of the trial would have been
different had counsel objected. Finally, in rejecting this claim, the district
court noted that in Branagan's direct appeal, we found that the district
court did not abuse its discretion by admitting the challenged testimony.
See Branagan v. State, Docket No. 57523 (Order of Affirmance, November
18, 2011). We agree and conclude that the district court did not err by
denying this claim. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
, J.
cc: Hon. David B. Barker, District Judge
Michael H. Schwarz
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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