Rose (Jeff) v. State ( 2013 )

 First, appellant argues that trial counsel was ineffective for
failing to adequately investigate and prepare for trial. Specifically,
appellant claims that counsel should have presented expert testimony
about appellant's broken hip and physical limitations, which would have
established that he did not have the physical capacity to commit the
sexual offenses. Appellant failed to demonstrate deficiency or prejudice.
Many of the victim's allegations of sexual abuse predated appellant's
injuries, and appellant and several other defense witnesses testified in
depth about appellant's injuries and physical limitations. Thus, appellant
failed to demonstrate that an expert's testimony would have had a
reasonable probability of changing the outcome of the trial.'
Second, appellant argues that trial counsel was ineffective for
failing to file a pretrial motion requesting a psychiatric examination of the
victims. Appellant failed to demonstrate that counsel's performance was
deficient or that he was prejudiced. Appellant did not demonstrate that a
psychological evaluation of the victims would have been appropriate, as he
did not show that the State benefited from a psychological expert or that
there was a reasonable basis for believing that the female victims' mental
'Appellant also claims that counsel failed to properly secure the
attendance of expert witness Dr. Esplin at trial. Appellant failed to
explain how counsel was deficient or what counsel should have done
differently. Appellant also failed to provide this court with the transcripts
that he cites to for this claim. See Thomas v. State, 120 Nev. 37, 43 & n.4,
83 P.3d 818, 822 & n.4 (2004) (appellant is ultimately responsible for
providing this court with portions of the record necessary to resolve his
claims on appeal); Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688
(1980) ("The burden to make a proper appellate record rests on
appellant."). Thus, he has failed to demonstrate deficiency or prejudice.
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or emotional state may have affected their veracity. See Koerschner v.
State, 116 Nev. 1111, 1116, 13 P.3d 451, 455 (2000) (holding that a
defendant must demonstrate a compelling need exists for the
examination); see also Abbott v. State, 122 Nev. 715, 728, 138 P.3d 462,
471 (2006) (reaffirming the test set forth in Koerschner). Thus, appellant
did not demonstrate a reasonable probability of a different outcome at
trial had counsel sought a psychological evaluation of the female victims.
Accordingly, the district court did not err in denying this claim without
conducting an evidentiary hearing.
Third, appellant argues that trial counsel was ineffective for
failing to ensure that all bench conferences and discussions were recorded.
We conclude that appellant failed to demonstrate that he was prejudiced,
as he has not identified any issue that this court was unable to
meaningfully review due to the failure to record bench conferences. See
Hargrove, 100 Nev. at 502, 686 P.2d at 225 (holding that "bare" or "naked"
claims are insufficient to grant relief). To the extent that he claims that
appellate review of jury selection was not possible, this claim is belied by
the record, as this court concluded on direct appeal that appellant was not
prejudiced by the unrecorded bench conferences during the jury selection
process. 2 Rose v. State, 123 Nev. 194, 207-08, 163 P.3d 408, 417 (2007).
Furthermore, a review of the record shows that most of the unrecorded
bench conferences during trial were explained on the record or pertained
2 We also note that appellant failed to provide this court with the
transcripts for jury selection, and thus failed to show prejudice. See
Thomas, 120 Nev. at 43 & n.4, 83 P.3d at 822 & n.4; Greene, 96 Nev. at
558, 612 P.2d at 688.
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to housekeeping matters. Therefore, we conclude that the district court
did not err in denying this claim.
Fourth, appellant argues that trial counsel was ineffective for
delivering an inadequate opening statement. Appellant argues that
counsel's opening statement was ineffective because it was not clear or
organized, it was composed of clichés and generalities, it did not
specifically refer to the evidence that would be presented through defense
witnesses, and counsel informed the district court earlier that his opening
statement would be inadequate. Appellant failed to demonstrate that
counsel's performance was deficient or that he was prejudiced. Counsel's
opening statement set forth the theory of defense and addressed evidence
that would be presented at trial. Appellant has failed to specify what
additional information counsel should have included in the opening
statement, nor has he shown a reasonable probability that, but for
counsel's errors, the outcome of the trial would have been different. Thus,
we conclude that the district court did not err in denying this claim.
Fifth, appellant argues that trial counsel was ineffective for
failing to move to recuse Judge Jackie Glass for bias toward the defense.
Appellant specifically contends that Judge Glass was biased because she
excluded evidence offered to support appellant's theory that the victims
had fabricated the allegations, denied his motion for a continuance,
conducted unrecorded bench conferences, reprimanded defense counsel for
asking leading questions of appellant, and made inappropriate statements
at sentencing. We conclude that appellant failed to demonstrate that trial
counsel was deficient or that he was prejudiced. Adverse rulings "during
the course of official judicial proceedings do not establish legally
cognizable grounds for disqualification." In re Petition to Recall Dunleavy,
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104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988). Moreover, this court
concluded on direct appeal that the district court did not abuse its
discretion in excluding the evidence of fabricated allegations. Rose, 123
Nev. at 205 n.18, 163 P.3d at 415 n.18. Thus, a motion to recuse on this
basis would have been futile. See Ennis v. State, 122 Nev. 694, 706, 137
P.3d 1095, 1103 (2006). As for the other challenged conduct and
statements, appellant failed to demonstrate that Judge Glass closed her
mind to the presentation of evidence, see Cameron v. State, 114 Nev. 1281,
1283, 968 P.2d 1169, 1171 (1998), or displayed "'a deep-seated favoritism
or antagonism that would make fair judgment impossible," Kirksey v.
State, 112 Nev. 980, 1007, 923 P.2d 1102, 1119 (1996) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). Thus, we conclude that the
district court did not err in denying this claim.
Sixth, appellant argues that trial counsel was ineffective for
failing to adequately select or prepare character witness T. Quaadman.
Appellant asserts that Quaadman's testimony harmed the defense because
she stated on cross-examination that her opinion of appellant might
change if she knew that he had admitted touching the victim's vagina.
Appellant failed to demonstrate that counsel's performance was deficient
or that he was prejudiced. On redirect examination, counsel elicited
favorable testimony from Quaadman. Furthermore, counsel called at least
five other witnesses who gave favorable testimony as to appellant's
character and reputation. Thus, appellant did not show a reasonable
probability that, but for counsel's errors, the outcome of the trial would
have been different. Accordingly, we conclude that the district court did
not err in denying this claim.
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Seventh, appellant argues that trial counsel was ineffective for
failing to effectively prevent and cure a reference by State witness G.
Moore to prejudicial polygraph evidence. Appellant failed to demonstrate
that trial counsel was deficient or that he was prejudiced. Trial counsel
objected and requested a mistrial when Moore mentioned the word
"polygraph" in describing his training and experience. On direct appeal,
this court concluded that the district court's admonishment to the jury
cured any prejudice from this single "polygraph" reference and that a
mistrial was not warranted. Rose, 123 Nev. at 206-07, 163 P.3d at 416-17.
Thus, we conclude that the district court did not err in denying this claim.
Eighth, appellant argues that trial counsel was ineffective for
failing to timely object to prosecutorial misconduct during closing
argument. Specifically, he contends that the prosecutor improperly
referred to him as a "predator," stated that defense counsel used "smoke
screens and flat-out deception" and "is trying to fool you," and commented
that the victims were "old enough to be believed, to be remembered, and to
be given justice." Appellant challenged these comments on direct appeal
and this court concluded that the comments were not prejudicial and thus
did not amount to plain error. Id. at 208-11, 163 P.3d at 417-19. Although
appellant appears to contend that his appellate rights were forfeited by
counsel's failure to object, he offers no cogent argument as to how a
different standard of review on appeal would have affected the outcome of
either the trial or the appeal. Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987). Thus, we conclude that the district court did not err in
denying this claim.
Finally, appellant argues that the cumulative effect of
counsel's deficiencies warrants relief. We conclude that, because he failed
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to demonstrate multiple deficiencies, he failed to demonstrate cumulative
error. Thus, the district court did not err in denying this claim.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Saitta
cc: Hon. Michael Villani, District Judge
Terrence M. Jackson
Jeff N. Rose
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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