Hankston (Lemel) v. State

• Court: Nevada Supreme Court
• Decided: July 22, 2013
• Docket: 62442
• Status: Unpublished

Opinion

evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We

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).

Hankston asserts that had counsel interviewed Shane Harris

and Tasha Bradford they would have informed him that at least one of the

individuals who approached Hankston before the shooting was armed and

with this information counsel could have presented a theory of self-

defense, as he requested. The district court conducted an evidentiary

hearing, found Bradford's testimony not credible, made no finding

regarding Harris or Hankston's testimony, and found credible trial

counsel's testimony that Hankston never told him that he acted in self-

defense or asked him to seek out any witnesses to present a theory of self-

defense. The district court also noted that, while the jury was deliberating

at trial, counsel stated that Harris had been contacted by an investigator

and had nothing to offer and Hankston acknowledged that either Harris

was unable or unwilling to testify. The district court denied Hankston's

claims, concluding that counsel was not deficient for presenting a

misidentification defense and Hankston failed to demonstrate a

reasonable likelihood that the verdict would have otherwise been different

because neither Bradford nor Harris actually saw the shooting. See State

v. Love, 109 Nev. 1136, 1139, 865 P.2d 322, 324 (1993). The record SUPREME COURT OF NEVADA 2 (0) 1947A supports these determinations. We conclude that the district court did not

err by denying these claims, and we

ORDER the judgment of the district court AFFIRMED.'

J. Hardesty

Cherry

cc: Hon. Stefany Miley, District Judge Craig W. Drummond Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

1 Hankston's fast track statement does not comply with NRAP 3C(h)(1) and NRAP 32(a)(4) because it does not have 1-inch margins on all four sides. We caution Hankston's counsel, Craig Drummond, that future failure to comply with formatting requirements when filing briefs with this court may result in the imposition of sanctions. See NRAP 3C(n).

SUPREME COURT OF NEVADA 3 (0) 1947A

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