Smith (Jacob) v. State

• Court: Nevada Supreme Court
• Decided: September 17, 2014
• Docket: 64385
• Status: Unpublished

Opinion

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

SUPREME COURT OF NEVADA 2 (0) 1947A 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

SUPREME COURT OF NEVADA 3 (0) 1947A