Smith (Jacob) v. State ( 2014 )

 of a witness while she was testifying at trial by other witnesses who would
have been excluded. Appellant has failed to demonstrate prejudice.
Appellant failed to satisfy his burden of proof at the evidentiary hearing
when he presented no evidence that the testifying witness was in fact
intimidated into changing her testimony, what her testimony would have
been had she not been intimidated, or how it would have affected the
outcome at trial. We therefore conclude that the district court did not err
in denying this claim.
Second, appellant argues that counsel was ineffective for
failing to object to the prosecutor's misstatement of law in closing
argument concerning the definitions of willfulness, premeditation, and
deliberation. Appellant has failed to demonstrate deficiency or prejudice.
Despite carrying the burden of proof, appellant failed to question either
trial counsel at his evidentiary hearing about their decision not to object to
the misstatement of the law. See Doleman v. State, 112 Nev. 843, 848, 921
P.2d 278, 280-81 (1996) (noting that strategic decisions are "virtually
unchallengeable") (quoting Howard v. State, 106 Nev. 713, 722, 800 P.2d
175, 180 (1990), abrogated on other grounds by Harte v. State, 116 Nev.
1054, 1072 n.6, 13 P.3d 420, 432 n.6 (2000))). Further, appellant failed to
provide this court with complete trial transcripts such that this court
cannot review the district court's conclusion that he was not prejudiced.
See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The
burden to make a proper appellate record rests on appellant."). We
therefore conclude that the district court did not err in denying this claim.
Appellant's remaining claims—the district court erred in
denying a motion to continue trial; the State improperly excluded the only
minority potential juror; and the State misstated the law in closing
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argument at trial—could have been raised in appellant's direct appeal.
Appellant failed to demonstrate good cause for his failure to do so. NRS
34.810(1)(b); see also Franklin a State, 110 Nev. 750, 751-52, 877 P.2d
1058, 1059 (1994), overruled on other grounds by Thomas v. State, 115
Nev. 148, 979 P.2d 222 (1999). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
, J.
Hardesty
fiD1149% J.
Douglas
J.
cc: Hon. Lidia Stiglich, District Judge
Story Law Group
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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