district court granted the petition in part, concluding that trial counsel
was ineffective in failing to consult and call an expert witness to rebut the
nurse's testimony as it related to the count of sexual assault, and denied
the remaining claims in the petition.
To prove ineffective assistance of counsel, a petitioner must
demonstrate that counsel's performance was deficient in that it fell below
an objective standard of reasonableness, and resulting prejudice such that
there is a reasonable probability that, but for counsel's errors, the outcome
of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683
P.2d 504, 505 (1984) (adopting the test in Strickland). The performance-
inquiry must be whether trial counsel's assistance was reasonable
considering all the circumstances and under the prevailing professional
norms at the time of the conduct at issue. Strickland, 466 U.S. at 688,
690. "[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation." Id. at 690. Both components of
the inquiry must be shown, id. at 697, and the petitioner must
demonstrate the underlying facts by a preponderance of the evidence,
Means u. 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
SUPREME COURT OF NEVADA 2 (0) 1947A evidence and not clearly erroneous but review the court's application of
the law to those facts de novo. Lad,er v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
The State argues that the district court erred in granting
relief on appellant's claim that trial counsel, Mr. Kevin Van Ry, was
ineffective for failing to consult and call an expert witness to rebut the
nurse's testimony. While not disputing the district court's determination
of prejudice, the State argues that appellant failed to demonstrate that
Mr. Van Ry's performance was constitutionally deficient. Specifically, the
State argues that there was no evidence presented of what the
professional norms require in a case when an "ostensibly qualified nurse"
presents evidence of what she observed during a physical examination of a
child-sexual-assault victim. The State further argues that the district
court erroneously applied a subjective test when it referred to counsel's
performance as "unprofessional."
We conclude that the district court's determination that trial
counsel was ineffective in failing to call an expert witness to rebut the
nurse's testimony was supported by substantial evidence and was not
clearly wrong. In this case, given the equivocal nature of the victim's
testimony and given how critical the nurse's testimony was in proving the
count of sexual assault, Mr. Van fly's failure to investigate, consult, and
present expert testimony was objectively unreasonable under the totality
of the circumstances and the prevailing professional norms. Appellant's
SUPREME COURT OF NEVADA 3 (D) 1947A en former trial counsel, Mr. Carl Hylin, 2 who testified at the evidentiary
hearing as to his experience in criminal defense, stated that after the
preliminary hearing he felt the nurse was "reckless" in her description of
the examination and findings and understood that he would need an
expert to dispute this evidence. Testimony from an experienced criminal
defense attorney may establish prevailing professional norms. 3 See
Matylinsky v. Budge, 577 F.3d 1083, 1092 (9th Cir. 2009) (acknowledging
that prevailing professional norms may be shown in various ways,
including an "alternate attorney's determination challenging" trial
counsel's decisions and practice standards set forth by the American Bar
Association). 4 In fact, Mr. Hylin secured funds from the court, found an
expert, and filed a notice of an expert, Dr. James Crawford-Jacubiak. Dr.
Crawford's testimony at the evidentiary hearing seriously and
substantially undermined the testimony of the nurse at trial in regard to
2 Mr.Hylin negotiated a guilty plea, which appellant ultimately withdrew. Mr. Hylin was replaced by Mr. Van Ry.
3 To the extent that the district court may have determined that Mr. Hylin could not testify as to the prevailing professional norms, we conclude that determination was in error.
4ABA standards in effect at the time of the representation in this case provided that "[dlefense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case." ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Standard 4- 4.1 (3d ed. 1993).
SUPREME COURT OF NEVADA 4 (0) 1947A (44044 the count of sexual assault. At the evidentiary hearing, Mr. Van Ry could
not recall what he had done to investigate the case and could provide no
reasonable explanation for not consulting and calling an expert witness in
regard to rebutting the testimony of the nurse regarding the sexual-
assault count. Thus, the decision not to consult or call an expert witness
in regard to the sexual-assault count cannot be deemed a strategic one in
this case. Based on the testimony presented at the evidentiary hearing,
appellant demonstrated that his trial counsel's performance was
deficient. 5 Further, as the State does not dispute the finding of prejudice,
the district court did not err in determining that counsel was ineffective in
regard to the sexual-assault count.
Appellant argues that the district court erred in concluding
that the deficiency in failing to call an expert to rebut the nurse's
testimony did not apply to the lewdness counts as well. Appellant fails to
demonstrate error. Dr. Crawford's testimony related only to the sexual-
assault count. While the testimony of M.N. may have been equivocal
regarding the sexual assault count, her testimony regarding the lewdness
count was not equivocal. Likewise the testimony of the other victims was
not equivocal regarding the lewdness counts. Appellant fails to
5 Reviewing the district court's order as a whole and in context, the district court applied an objective test in evaluating counsel's performance. Reference to Mr. Van Ry's performance as "unprofessional" was aimed at the State's concern regarding the prevailing professional norms.
SUPREME COURT OF NEVADA 5 (0) 1947 A e demonstrate that counsel's failure to present an expert to rebut the
nurse's testimony had a reasonable probability of altering the outcome at
trial regarding the lewdness counts.
Next, appellant argues that trial counsel was ineffective for
failing to call an expert witness, Dr. William O'Donahue, to challenge the
reliability of the accusations given alleged defects in the forensic
interviews.
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district court granted the petition in part, concluding that trial counsel
was ineffective in failing to consult and call an expert witness to rebut the
nurse's testimony as it related to the count of sexual assault, and denied
the remaining claims in the petition.
To prove ineffective assistance of counsel, a petitioner must
demonstrate that counsel's performance was deficient in that it fell below
an objective standard of reasonableness, and resulting prejudice such that
there is a reasonable probability that, but for counsel's errors, the outcome
of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683
P.2d 504, 505 (1984) (adopting the test in Strickland). The performance-
inquiry must be whether trial counsel's assistance was reasonable
considering all the circumstances and under the prevailing professional
norms at the time of the conduct at issue. Strickland, 466 U.S. at 688,
690. "[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation." Id. at 690. Both components of
the inquiry must be shown, id. at 697, and the petitioner must
demonstrate the underlying facts by a preponderance of the evidence,
Means u. 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
SUPREME COURT OF NEVADA 2 (0) 1947A evidence and not clearly erroneous but review the court's application of
the law to those facts de novo. Lad,er v. Warden, 121 Nev. 682, 686, 120
P.3d 1164, 1166 (2005).
The State argues that the district court erred in granting
relief on appellant's claim that trial counsel, Mr. Kevin Van Ry, was
ineffective for failing to consult and call an expert witness to rebut the
nurse's testimony. While not disputing the district court's determination
of prejudice, the State argues that appellant failed to demonstrate that
Mr. Van Ry's performance was constitutionally deficient. Specifically, the
State argues that there was no evidence presented of what the
professional norms require in a case when an "ostensibly qualified nurse"
presents evidence of what she observed during a physical examination of a
child-sexual-assault victim. The State further argues that the district
court erroneously applied a subjective test when it referred to counsel's
performance as "unprofessional."
We conclude that the district court's determination that trial
counsel was ineffective in failing to call an expert witness to rebut the
nurse's testimony was supported by substantial evidence and was not
clearly wrong. In this case, given the equivocal nature of the victim's
testimony and given how critical the nurse's testimony was in proving the
count of sexual assault, Mr. Van fly's failure to investigate, consult, and
present expert testimony was objectively unreasonable under the totality
of the circumstances and the prevailing professional norms. Appellant's
SUPREME COURT OF NEVADA 3 (D) 1947A en former trial counsel, Mr. Carl Hylin, 2 who testified at the evidentiary
hearing as to his experience in criminal defense, stated that after the
preliminary hearing he felt the nurse was "reckless" in her description of
the examination and findings and understood that he would need an
expert to dispute this evidence. Testimony from an experienced criminal
defense attorney may establish prevailing professional norms. 3 See
Matylinsky v. Budge, 577 F.3d 1083, 1092 (9th Cir. 2009) (acknowledging
that prevailing professional norms may be shown in various ways,
including an "alternate attorney's determination challenging" trial
counsel's decisions and practice standards set forth by the American Bar
Association). 4 In fact, Mr. Hylin secured funds from the court, found an
expert, and filed a notice of an expert, Dr. James Crawford-Jacubiak. Dr.
Crawford's testimony at the evidentiary hearing seriously and
substantially undermined the testimony of the nurse at trial in regard to
2 Mr.Hylin negotiated a guilty plea, which appellant ultimately withdrew. Mr. Hylin was replaced by Mr. Van Ry.
3 To the extent that the district court may have determined that Mr. Hylin could not testify as to the prevailing professional norms, we conclude that determination was in error.
4ABA standards in effect at the time of the representation in this case provided that "[dlefense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case." ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Standard 4- 4.1 (3d ed. 1993).
SUPREME COURT OF NEVADA 4 (0) 1947A (44044 the count of sexual assault. At the evidentiary hearing, Mr. Van Ry could
not recall what he had done to investigate the case and could provide no
reasonable explanation for not consulting and calling an expert witness in
regard to rebutting the testimony of the nurse regarding the sexual-
assault count. Thus, the decision not to consult or call an expert witness
in regard to the sexual-assault count cannot be deemed a strategic one in
this case. Based on the testimony presented at the evidentiary hearing,
appellant demonstrated that his trial counsel's performance was
deficient. 5 Further, as the State does not dispute the finding of prejudice,
the district court did not err in determining that counsel was ineffective in
regard to the sexual-assault count.
Appellant argues that the district court erred in concluding
that the deficiency in failing to call an expert to rebut the nurse's
testimony did not apply to the lewdness counts as well. Appellant fails to
demonstrate error. Dr. Crawford's testimony related only to the sexual-
assault count. While the testimony of M.N. may have been equivocal
regarding the sexual assault count, her testimony regarding the lewdness
count was not equivocal. Likewise the testimony of the other victims was
not equivocal regarding the lewdness counts. Appellant fails to
5 Reviewing the district court's order as a whole and in context, the district court applied an objective test in evaluating counsel's performance. Reference to Mr. Van Ry's performance as "unprofessional" was aimed at the State's concern regarding the prevailing professional norms.
SUPREME COURT OF NEVADA 5 (0) 1947 A e demonstrate that counsel's failure to present an expert to rebut the
nurse's testimony had a reasonable probability of altering the outcome at
trial regarding the lewdness counts.
Next, appellant argues that trial counsel was ineffective for
failing to call an expert witness, Dr. William O'Donahue, to challenge the
reliability of the accusations given alleged defects in the forensic
interviews. Appellant fails to demonstrate that it was objectively
unreasonable not to present this testimony as any inconsistencies or
motivation to tell a particular story could have been elicited in other ways.
• It is for the jury to determine the credibility of witnesses, Walker v. State,
91 Nev. 724, 726, 542 P.2d 438, 439 (1975), and Dr. O'Donahue
acknowledged that any flaws in the forensic interview did not mean that
the girls were untruthful, but that any flaws could leave the interviews
open to other interpretations. Even assuming that counsel was deficient
for failing to present testimony regarding the interviews, appellant fails to
demonstrate that there was a reasonable probability of a different
outcome had trial counsel presented testimony from this expert in this
case.
Next, appellant argues that trial counsel was ineffective for
presenting no defense and conceding appellant's guilt to the lewdness
counts in closing arguments without his consent. Appellant failed to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. Mr. Van Ry testified that appellant admitted to him that
SUPREME COURT OF NEVADA 6 (0) 1947A e he had committed the physical acts forming the basis for the lewdness
counts and that his strategy was to concede that the physical acts occurred
but argue that appellant lacked the required specific intent for the
offenses. Appellant fails to demonstrate that counsel's strategy was
unreasonable under the circumstances in this case; appellant's consent to
the strategy was not required. See Armenta-Carpio u. State, 129 Nev. ,
306 P.3d 395, 398 (2013). Appellant further fails to demonstrate that
there was a reasonable probability of a different outcome had trial counsel
not conceded that appellant committed the physical acts underlying the
lewdness counts or presented some other defense to the lewdness counts.
Finally, appellant appears to argue that the remaining claims
in his petition were improperly denied, but he fails to provide any cogent
argument. We therefore decline to consider these claims. See Maresca v.
State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Accordingly, we ORDER the judgment of the district court AFFIRMED.
Gibbons
J.
SUPREME COURT OF NEVADA 7 (0) 1947A 4117D), cc: Hon. Jerome Polaha, District Judge Federal Public Defender/Las Vegas Attorney GenerallCarson City Washoe County District Attorney Washoe District Court Clerk
SUPREME COURT OF NEVADA 8 (0) 1947A 74)2A:(9