Warden v. Hashemi (Hamid) ( 2013 )

 give deference to the district 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, the State argues that the district court erred by
determining that trial counsel was ineffective for failing to impeach the
victims' father, Robert Neale, with his statements that he was sexual with
the oldest victim 12 to 13 times. The State failed to demonstrate error.
Respondent was charged with several counts of sexual assault of a minor
under the age of 14 and lewdness with a minor under the age of 14
committed against two victims, ages 4 and 6. Neale was also prosecuted
for lewdness with a minor under the age of 14 committed against the older
victim, pleaded guilty, and agreed to testify against respondent. Neale
only testified regarding the one count he pleaded guilty to. Trial counsel,
however, was provided with a copy of Neale's psychosexual examination
which included statements that Neale had been sexual with the victim 12
to 13 times. Trial counsel was also provided with a copy of a transcript
with the oldest victim indicating that she had been sexual with her father
on numerous occasions and that it was okay because he was her father.
The district court concluded that trial counsel failed to use this
information to impeach Neale at trial or to establish that Neale was the
actual perpetrator in the crimes alleged by the victims. 1 The district court
1 0nly
the incident that Neale pleaded guilty to was used to impeach
Neale at appellant's trial.
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concluded that the failure to use this evidence was deficient and
prejudiced respondent, especially in conjunction with the other error
discussed below, and that there was a reasonable probability of a different
outcome at trial had trial counsel used this evidence. Substantial evidence
supports the decision of the district court, and we conclude that the
district court did not err in granting the petition on this ground. 2
Next, the State argues that the district court erred by
determining that trial counsel was ineffective for failing to retain an
expert to refute the findings of the sexual assault response nurse, Lily
Clarkson. Specifically, the State argues that respondent failed to
demonstrate that there was a prevailing professional norm to hire an
expert or that there was prejudice. The State failed to demonstrate error.
At the evidentiary hearing, counsel testified that he did not seek an
independent review of Clarkson's findings because he worked for the
contract public defender and was limited in funds to hire an expert. He
further testified that he was unaware of Widdis v. Second Judicial Dist.
Court, 114 Nev. 1224, 1228, 968 P.2d 1165, 1167 (1998), which allowed
payment of reasonable defense costs at public expense, and that he could
have sought funds through the court. At the evidentiary hearing,
respondent presented an expert that refuted Clarkson's findings that
2 The State also argues that the district court erred by determining
that trial counsel was ineffective for failing to use the plea agreement and
Neale's psychosexual evaluation to impeach Neale by demonstrating that
he had a motive lie. In light of our decision, we decline to consider this
claim.
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there was any injury or scarring. The district court concluded that trial
counsel should have retained an expert because an objectively reasonable
lawyer would have attempted to impeach Clarkson since her testimony
was particularly compelling. Further, the district court concluded that
had trial counsel presented the expert's testimony and impeached Neale
with his statements and the statement of the victim, there was a
reasonable probability of different outcome at tria1. 3 Substantial evidence
supports the decision of the district court, and we conclude that the
district court did not err in granting the petition.
Finally, the State argues that even if the district court was
correct in its determination that trial counsel was ineffective, it should not
have granted the petition as to count 4, the lewdness-with-a-minor count
that was perpetrated against the oldest victim. The State argues that the
district court's conclusion that Neale sexually assaulted the older victim
12 to 13 times and that Clarkson's physical findings were found to be
erroneous do not negate count 4. The State fails to demonstrate error.
The State appears to labor under the impression that the district court
concluded that Neale's statement regarding "being sexual" with the older
victim meant that he sexually assaulted the victim. Our review of the
3 We note that the district court erroneously relied on a letter from
the State regarding a Dr. Wagoner who was apparently hired by the State
to review Clarkson's findings. The district court specifically found in its
order regarding exhibits filed on November 16, 2011, that the letter
constituted hearsay upon hearsay and was not testified about during the
hearing. Therefore, it was error for the district court to rely on this letter
in its findings of facts.
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order does not demonstrate that the district court equated being sexual
with sexual assault. In fact, the district court in its order referred to the
"being sexual" as molestation and not sexual assault. As stated above, the
district court's decision to grant the petition was supported by substantial
evidence, and we
ORDER the judgment of the district court AFFIRMED.
Hardesty
J.
cc: Hon. Jerome Polaha, District Judge
Attorney General/Carson City
Washoe County District Attorney
Mary Lou Wilson
Washoe District Court Clerk
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