Dewey (Shelli) v. Foster ( 2013 )

 facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166
(2005).
First, appellant argues that her trial counsel was ineffective
for failing to investigate and present testimony from a linguist who had
reviewed her statement to police. Appellant argues that her statements
where she appeared to admit guilt were actually questions or
hypotheticals made in response to the police's inquiries. An expert in
linguistics testified at the evidentiary hearing that appellant's intonation
rose at the end of her statements, indicating a question and not a factual
statement. For example, appellant asserts that her statement, which
appeared to be "I hit him with a knife," was actually a question to the
officers, "I hit him with a knife?"
Appellant fails to demonstrate that her counsel's performance
was deficient or that she was prejudiced. Testimony presented at the
evidentiary hearing demonstrated that use of a linguistics expert in a
criminal trial was relatively novel at the time counsel prepared for trial of
this matter. Considering the relatively novel use of a linguistics expert in
preparation for a criminal trial, appellant fails to demonstrate it was
unreasonable for counsel to have not investigated and obtained a
linguistics expert to testify in this case. See Strickland, 466 U.S. at 689
("A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate that
conduct from counsel's perspective at the time.") The district court further
concluded, after listening to the expert's testimony and the recording of
appellant's interviews with the police, that the testimony of appellant's
expert was insufficient to demonstrate a reasonable probability of a
different outcome at trial had counsel obtained an expert in linguistics.
SUPREME COURT Substantial evidence supports the district court's finding that appellant
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failed to demonstrate prejudice. Therefore, appellant fails to demonstrate
the district court erred in denying this claim.
Second, appellant argues that her trial counsel was ineffective
for failing to provide the defense crime scene analyst with all of the
evidence available and failing to ask the analyst proper questions at trial.
Appellant fails to demonstrate that her trial counsel's performance was
deficient or that she was prejudiced. Counsel testified that he provided
the analyst with all of the evidence in his possession, but that a State's
witness caused a delay in sending one report to the analyst. The analyst
testified at the evidentiary hearing that he believed the victim pulled the
knife out of his own chest after he was stabbed; but even after further
review of all of the available evidence, the analyst testified that he could
not state how the knife got into the victim's chest. Given the analyst's
testimony that he could not opine that appellant did not cause the victim's
death, appellant fails to demonstrate a reasonable probability of a
different outcome at trial had counsel supplied the analyst with additional
evidence or asked different questions during the trial. Therefore, the
district court did not err in denying this claim.
Third, appellant argues that her trial counsel was ineffective
for failing to investigate and present evidence through a forensic
psychologist regarding battered woman's syndrome and the mental issues
appellant suffered as a result of domestic violence. Appellant fails to
demonstrate that her trial counsel's performance was deficient or that she
was prejudiced. Counsel testified that, while he could not recall if he
sought expert testimony on battered woman's syndrome, he did
investigate whether appellant had been abused by the victim; he could not
find credible evidence of such abuse. Based on that testimony, counsel's
performance was not deficient. Further, the district court concluded that
SUPREME COURT the expert testimony presented at the evidentiary hearing did not
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establish that any mental issues appellant suffered from occurred solely
by domestic violence at the hands of the victim and not due to traumas
suffered since her incarceration. Appellant fails to demonstrate a
reasonable probability of a different outcome had counsel sought to
present expert testimony on battered woman's syndrome and its effect on
appellant. Therefore, the district court did not err in denying this claim.
Fourth, appellant argues that her trial counsel was ineffective
for failing to seek an instruction on the spoliation of evidence that the
police failed to collect. Appellant fails to demonstrate that her trial
counsel's performance was deficient or that she was prejudiced as
appellant fails to demonstrate that any of the evidence she asserts the
State should have collected was material—that there is a reasonable
probability that the outcome of trial would have been different had the
defense had access to the uncollected evidence. See Daniels v. State, 114
Nev. 261, 267, 956 P.2d 111, 115 (1998). Therefore, the district court did
not err in denying this claim.
Fifth, appellant argues that trial counsel was ineffective for
requesting an instruction on self-defense. Appellant fails to demonstrate
that her trial counsel's performance was deficient or that she was
prejudiced. Counsel testified at the evidentiary hearing that he wanted to
give the jury multiple chances to return a verdict in appellant's favor and
that was why he requested a self-defense instruction. Tactical decisions
such as this one "are virtually unchallengeable absent extraordinary
circumstances," Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989),
which appellant did not demonstrate. Appellant also fails to demonstrate
a reasonable probability of a different outcome at trial had counsel not
requested a self-defense instruction. Therefore, the district court did not
err in denying this claim.
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Sixth, appellant argues that trial counsel was ineffective for
failing to properly present evidence and testimony from an audio expert,
which would have demonstrated appellant invoked her right to counsel
prior to confessing. Appellant fails to demonstrate that her trial counsel
was deficient or that she was prejudiced. The district court concluded,
even after listening to the recording enhanced by the audio expert, that
appellant failed to demonstrate that she requested a lawyer prior to
confessing. Appellant fails to demonstrate a reasonable probability of a
different outcome had counsel presented further expert testimony
incorporating the enhanced recording. Therefore, the district court did not
err in denying this claim."
Seventh, appellant argues that trial counsel was ineffective for
failing to investigate and present testimony from R. Goldie. Appellant
fails to demonstrate that her trial counsel's performance was deficient or
that she was prejudiced. Appellant's investigator testified that he
investigated Goldie prior to trial and gave the information regarding
Goldie to counsel. Further, Goldie's testimony at the evidentiary hearing
was similar to that of witnesses who testified at trial. Appellant fails to
demonstrate a reasonable probability of a different outcome at trial had
further investigation of Goldie been performed or had Goldie's testimony
'Appellant also appears to argue that trial counsel should have
hired an independent transcriber to transcribe the recordings of
appellant's interviews with the police. Appellant fails to demonstrate that
counsel's performance was deficient or that she was prejudiced. Counsel
testified that he did not want to use a transcript at the trial, as he wanted
the jury to listen to the tape for themselves and appellant fails to
demonstrate this was an unreasonable decision. See Ford, 105 Nev. at
853, 784 P.2d at 953. As the jury was not given a transcript to use at trial,
appellant fails to demonstrate a reasonable probability of a different
outcome at trial had counsel sought an independent transcriber.
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been presented at trial. Therefore, the district court did not err in denying
this claim.
Eighth, appellant argues that trial counsel was ineffective for
failing to file a motion to suppress evidence because the search warrant
was not served properly on appellant. Appellant fails to demonstrate that
her trial counsel's performance was deficient or that she was prejudiced.
The officer testified that he left the search warrant for appellant with the
jail after appellant's arrest and appellant fails to demonstrate that this
service was insufficient. Appellant fails to demonstrate a reasonable
probability of a different outcome had counsel argued the search warrant
was not properly served on appellant. Therefore, the district court did not
err in denying this claim.
Ninth, appellant argues that trial counsel was ineffective for
failing to move to suppress evidence allegedly obtained in violation of
Franks v. Delaware, 438 U.S. 154 (1978), as appellant asserts the officer
falsely claimed in his affidavit in support of the search warrant that
appellant was uncooperative and had confessed, and that the officer
improperly stated a particular witness had knowledge of the facts prior to
the stabbing. Appellant fails to demonstrate that her trial counsel's
performance was deficient or that she was prejudiced. Counsel testified at
the evidentiary hearing that he considered raising an argument about the
affidavit under the Franks case, but decided against it as he wanted to
challenge the officer's statement at trial and wanted the officer to be
surprised by the challenge. Tactical decisions such as this one "are
virtually unchallengeable absent extraordinary circumstances," Ford, 105
Nev. at 853, 784 P.2d at 953, which appellant did not demonstrate.
Appellant fails to demonstrate that any of the statements were false or
that the officer made knowing and intentional false statements, and
SUPREME COURT therefore, fails to demonstrate a reasonable probability of a different
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outcome had counsel sought to suppress the search warrant. Franks, 438
U.S. at 155-56. Therefore, the district court did not err in denying this
claim.
Tenth, appellant argues that trial counsel was ineffective for
failing to make a proper record regarding invocation of appellant's right to
remain silent, which caused appellate counsel to litigate this issue on
appeal with an incomplete record. Appellant fails to demonstrate that her
trial counsel's performance was deficient or that she was prejudiced. The
underlying claim was considered on direct appeal and this court concluded
that the police did not violate appellant's right to remain silent. Dewey v.
State, 123 Nev. 483, 489-91, 169 P.3d 1149, 1153-54 (2007). Appellant
fails to demonstrate that the additional issues she highlights, such as
appellant's concern for her children, appellant's intoxication level, and the
waiver-of-rights form, were not available to be considered on direct appeal
as they were discussed during the trial and the discussion was included in
the trial transcript. Appellant also fails to demonstrate a reasonable
probability of a different outcome had counsel made an additional record
regarding this issue as appellant fails to demonstrate the police violated
her right to remain silent. Therefore, the district court did not err in
denying this claim.
Eleventh, appellant argues that trial counsel was ineffective
for failing to seek suppression of appellant's statements as appellant was
detained longer than 60 minutes in violation of NRS 171.123. Appellant
fails to demonstrate that her trial counsel's performance was deficient or
that she was prejudiced. A suspect has been detained 'only if, in view of
all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave. . . . [T]he subjective
intent of the officers is relevant to an assessment of the Fourth
SUPREME COURT Amendment implications of police conduct only to the extent that that
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intent has been conveyed to the person confronted.' State v. McKellips,
118 Nev. 465, 469-70, 49 P.3d 655 659 (2002) (quoting Michigan v.
Chesternut, 486 U.S. 567, 573, 575 n.7 (1988)). In the context of a
voluntariness inquiry, the trial court determined that appellant was not in
custody until she was placed under arrest after her initial interview.
Here, appellant points to no evidence, other than a few police officers'
testimony that they would not have allowed appellant to leave the crime
scene on her own, to demonstrate that reasonable trial counsel would have
raised additional arguments that appellant was improperly detained pre-
arrest.
In addition, even assuming that appellant was actually
detained longer than 60 minutes prior to her arrest, ripening the
detainment into an arrest, appellant fails to demonstrate that the police
did not have probable cause to arrest her, given the evidence that
appellant was the only person with her fatally stabbed husband and that
appellant had been in a struggle with the victim. Id. at 472, 49 P.3d at
660 ("Probable cause to arrest 'exists when police have reasonably
trustworthy information of facts and circumstances that are sufficient in
themselves to warrant a person of reasonable caution to believe that [a
crime] has been . . . committed by the person to be arrested." (alteration
and omission in original) (quoting Doleman v. State, 107 Nev. 409, 413,
812 P.2d 1287, 1289 (1991))). Accordingly, appellant fails to demonstrate
a reasonable likelihood of a different outcome had counsel raised this
claim. Therefore, the district court did not err in denying this claim.
Twelfth, appellant argues that errors committed by trial
counsel cumulatively amount to ineffective assistance of counsel.
Appellant fails to demonstrate deficiency or prejudice for any of the
previous claims, and therefore, fails to demonstrate errors of counsel
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amount cumulatively to ineffective assistance of counsel. Therefore, the
district court did not err in denying this claim.
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 2
J.
Hardesty
Pareaguirre U° Cherry
cc: Chief Judge, Fourth Judicial District Court
Hon. Charles M. McGee, Senior Judge
Richard F. Cornell
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
2Appellant filed a motion requesting oral argument. We conclude
that oral argument is unnecessary for our disposition of this appeal and
deny appellant's motion. See NRAP 34(0(3).
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