Sanders (Timothy) v. State

• Court: Nevada Supreme Court
• Decided: June 10, 2015
• Docket: 64005
• Status: Unpublished

Opinion

facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166

(2005).

First, Sanders argues that trial counsel was ineffective for

failing to file a pretrial motion to suppress his statement to officers during

a custodial interrogation. When an ineffective-assistance claim is based

upon the failure to file a motion to suppress, "the prejudice prong must be

established by a showing that the claim was meritorious and that there

was a reasonable likelihood that the exclusion of the evidence would have

changed the result of a trial." Kirksey v. State, 112 Nev. 980, 990, 923

P.2d 1102, 1109 (1996). Sanders fails to allege, let alone demonstrate, a

reasonable likelihood of a different result at trial had the statements been

suppressed. Additionally, Sanders does not identify what statements,

made after his alleged invocation of counsel, should have been suppressed

or allege that any such statements were introduced at trial. We therefore

conclude that the district court did not err by denying this claim.

Second, Sanders contends that trial counsel was ineffective for

failing to file a pretrial motion to sever the joint trial because he was

prejudiced when the State referred to the defendants collectively during

argument to the jury and when evidence against each defendant came in

against both. Sanders fails to demonstrate deficiency as he has not

demonstrated that such a motion would have been successful. See

Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978) (holding that

counsel cannot be ineffective for failing to make futile motions).

SUPREME COURT OF NEVADA 2 (0) 1947A e Therefore, we conclude the district court did not err by denying this claim.

Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Saitta

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

SUPREME COURT OF NEVADA 3 (0) 1947A 44e40