Decastro (Castro) v. Warden ( 2014 )

 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, appellant claims that counsel was ineffective because
counsel violated his right to a speedy trial. Appellant fails to demonstrate
that counsel was deficient or that he was prejudiced. First, appellant
mistakenly relies on authority regarding the government being the cause
of the delay and fails to provide any case cites indicating that his own
counsel can violate his speedy trial rights. We note that appellant had five
different attorneys in a three-year timespan. These attorneys filed
numerous motions, sought discovery, and attempted to secure a plea
bargain with the State. There does not appear to have been a lack of
diligence on the part of counsel. Second, appellant fails to demonstrate a
reasonable probability of a different outcome at trial had the trial
commenced earlier. Therefore, the district court did not err in denying
this claim.
Second, appellant claims that counsel was ineffective for
failing to effectively communicate regarding plea negotiations. Appellant
claims that counsel attempted to coerce him into pleading guilty but also
did not explain the consequences of going to trial and what the mandatory
minimums would have been if he were convicted of all charges. Appellant
fails to demonstrate that trial counsel was deficient. First, appellant did
not plead guilty. Further, appellant does not explain what coercive tactics
counsel used to attempt to coerce appellant into taking the plea
agreement. Therefore, the district court did not err in denying this claim.
Third, appellant claims that counsel was ineffective for failing
to communicate with appellant prior to trial. Appellant claims that after
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he refused to accept the plea agreement, his counsel stopped
communicating with him and failed to properly work his case. Appellant
claims that this failure caused counsel to not be prepared for trial.
Appellant fails to demonstrate that counsel was deficient or that he was
prejudiced. Counsel who negotiated the potential plea agreement was not
the counsel that took appellant's case to trial. Therefore, appellant's
claims that his "plea" counsel failed to communicate with him, and
therefore, trial counsel was not prepared for trial is without merit.
Accordingly, the district court did not err in denying this claim.
Fourth, appellant claims that counsel was ineffective for
insisting that appellant testify at the suppression hearing and for failing
to properly prepare him for the hearing. Appellant fails to demonstrate
that counsel was deficient or that he was prejudiced. Appellant's
testimony was the only way to demonstrate counsel's theory that the
interview at appellant's house was a custodial interrogation.' Further,
appellant fails •to demonstrate how he was not properly prepared for
testifying. Finally, he fails to demonstrate a reasonable probability of a
different outcome at the hearing had appellant not testified or had counsel
further prepared him. Appellant was not in custody at the time of the
interview. See State v. Taylor, 114 Nev. 1071, 1082, 968 P.2d 315, 323
(1998) (listing factors to consider whether a person is in custody during a
police interview). Therefore, the district court did not err in denying this
claim.
'We note that appellant's testimony from the suppression hearing
was not used at appellant's trial.
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Fifth, appellant claims that counsel was ineffective for failing
to engage in pretrial discovery and preparation. Specifically, appellant
claims that counsel failed to timely obtain records and failed to contact an
out-of-state therapist who treated the victim. Appellant fails to
demonstrate that counsel was deficient or that he was prejudiced. It
appears from the record that counsel did obtain the records and appellant
fails to demonstrate how having the records earlier would have affected
the outcome at trial. As to the out-of-state therapist, appellant fails to
state what this therapist would have testified about and how the
testimony would have had a reasonable probability of altering the outcome
at trial. Therefore, the district court did not err in denying this claim.
Sixth, appellant claims that counsel was ineffective for failing
to object during many of the pretrial and trial proceedings. Specifically,
appellant cites to two examples. The first example involved the victim's
father testifying regarding what his daughter told him, which appellant
claims was hearsay. Appellant fails to demonstrate that counsel was
deficient for failing to object to this statement because it was not hearsay
because the victim testified, was cross-examined, the father's testimony
was consistent with the victim's testimony, and it was offered to rebut a
charge against her of recent fabrication. NRS 51.035(2)(b); Donovan v.
State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978) (holding that counsel is
not deficient for failing to make futile motions).
The second example involved the detective's testimony
regarding the delayed disclosure of victims. Appellant claims that counsel
should have objected based on a lack of foundation. Appellant fails to
demonstrate that counsel was deficient or that he was prejudiced. While
counsel did not object on this exact ground, counsel did object to the
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detective's testimony because the detective was not noticed as an expert.
This objection was overruled. Appellant fails to demonstrate that a second
objection based on lack of foundation would have been successful or that
there was a reasonable probability of a different outcome at trial had
counsel objected a second time.
To the extent that appellant makes a general claim regarding
counsel's failure to object before and during trial, appellant fails to support
this claim with specific facts that, if true, entitled him to relief. Hargrove,
100 Nev. at 502-03, 686 P.2d at 225. Therefore, the district court did not
err in denying this claim.
Seventh, appellant claims that counsel was ineffective for
failing to retain defense experts. Specifically, appellant claims that
counsel should have retained an expert to refute the detective's
statements regarding delayed disclosures and victims in general. Further,
he claims that counsel should have obtained a psychiatric evaluation of
the victim or an expert to observe her demeanor, or an expert to review
• her medical and psychiatric records. Appellant fails to demonstrate that
he was prejudiced because he fails to demonstrate a reasonable probability
of a different outcome at trial had these experts been retained given
appellant's own admissions. 2 Therefore, the district court did not err in
denying this claim.
Eighth, appellant claims that counsel was ineffective for
failing to ensure a record was made of unrecorded bench conferences.
Appellant failed to demonstrate that counsel was deficient because he
2 We note that counsel did file a motion to have the victim undergo
an independent psychological examination which was denied by the
district court. Therefore, this claim was belied by the record.
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failed to demonstrate that the missing portions of the record "are so
significant that their absence precludes this court from conducting a
meaningful review, of the alleged errors that the appellant identified and
the prejudicial effect of any error." Preciado v. State, 130 Nev. ,
318 P.3d 176, 178 (2014). Appellant does not make any specific argument
about any unrecorded bench conferences in this case. Instead appellant
only makes a general argument that the standard should be changed. We
decline this invitation. Therefore, the district court did not err in denying
this claim.
Ninth, appellant claims that counsel was ineffective for failing
to subpoena material witnesses. Appellant claims that counsel was
ineffective for failing to subpoena the victim's father and the victim's aunt.
Appellant fails to demonstrate that counsel was deficient or that he was
prejudiced. As to the victim's father, he was subpoenaed by the State and
testified for both the State and the defense. As to the victim's aunt, the
court concluded on direct appeal that the information that appellant
sought to introduce from the aunt was presented through other witnesses.
DeCastro v. State, Docket No. 55184 (Order of Affirmance, February 24,
2012). Further, appellant fails to demonstrate a reasonable probability of
a different outcome at trial had the aunt testified given the testimony by
the victim and appellant's own admissions. Therefore, the district court
did not err in denying this claim.
Tenth, appellant claims that counsel was ineffective for failing
to move to dismiss the count of attempted sexual assault on a minor under
the age of 14. Appellant fails to demonstrate that counsel was deficient.
Considering that this court concluded on direct appeal that there was
sufficient evidence presented at trial to prove the attempted sexual
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assault, id., it appears that a motion to dismiss the count would have been
futile, and therefore, appellant cannot demonstrate that counsel's failure
to file a motion was objectively unreasonable. Donovan, 94 Nev. at 675,
584 P.2d at 711. Accordingly, the district court did not err in denying this
claim.
Eleventh, appellant claims that counsel was ineffective for
failing to file a sentencing memorandum prior to sentencing. Appellant
failed to provide a transcript of the sentencing hearing for this court's
review. The burden is on appellant to provide an adequate record
enabling this court to review assignments of error. See Thomas v. State,
120 Nev. 37, 43 n.4, 83 P.3d 818, 822 n.4 (2004); see also Greene v. State,
96 Nev. 555, 558, 612 P.2d 686, 688 (1980). Therefore, we are unable to
review this claim to determine whether counsel was deficient or whether
appellant was prejudiced by the failure to file a sentencing memorandum.
Finally, appellant claims that the cumulative errors of counsel
entitle him to relief. Appellant fails to demonstrate that any alleged
errors by counsel, singly or cumulatively, would have had a reasonable
probability of altering the outcome at trial. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Adeuti J.
J.
Parraguirre
J.
Saitta
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cc: Hon. Douglas Smith, District Judge
Matthew D. Carling
Drew Christensen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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