Lopez (Alexander) v. State

• Court: Nevada Supreme Court
• Decided: July 22, 2014
• Docket: 63462
• Status: Unpublished

Opinion

Second, Lopez contends that he was denied the effective

assistance of counsel in violation of the Sixth Amendment. As Lopez acknowledges, ineffective-assistance-of-counsel claims generally may not

be raised on direct appeal, see Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995), and we decline to consider them here because the district court has not held an evidentiary hearing and an evidentiary

hearing is necessary to substantiate Lopez's factual allegations, see

Archanian v. State, 122 Nev. 1019, 1036, 145 P.3d 1008, 1020-21 (2006).

Third, Lopez contends that the State committed prosecutorial misconduct during closing arguments, vouched for the credibility of the victim, and shifted the burden of proof. Lopez failed to object during

closing, and we review for plain error. NRS 178.602; Green v. State, 119

Nev. 542, 545, 80 P.3d 93, 95 (2003). Lopez has the burden of establishing

that these errors occurred, see Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008) (discussing prosecutorial misconduct); Lisle v. State, 113 Nev. 540, 553-54, 937 P.2d 473, 481 (1997) (discussing improper vouching and burden shifting), that the errors are plain or clear from the

record, and that the errors affected his substantial rights, Green, 119 Nev. at 545, 80 P.3d at 95. In addition to making the statements which Lopez

alleges violated his rights, the State specifically told the jury during closing arguments that "it's your job to determine [the victim's] credibility," and on rebuttal that, "we're going to let you decide how credible do you think that person is," and if the jury had any reasonable

doubt about whether the victim lied, that "reasonable doubt entitles the

SUPREME COURT OF NEVADA 2 (0) 1947A et), Defendant to a not guilty verdict." Having reviewed the closing arguments in their entirety, we conclude that if there is any error, it is not plain or clear from the record, and Lopez has not demonstrated that it affected his substantial rights. Therefore, we ORDER the judgment of conviction AFFIRMED.

J. Pickering

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cc: Hon. Valerie Adair, District Judge Carmine J. Colucci & Associates Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1047A e