Torrez (Richard) v. Warden

• Court: Nevada Supreme Court
• Decided: November 12, 2014
• Docket: 65087
• Status: Unpublished

Opinion

must be shown, Strickland, 466 U.S. at 697, and the petitioner must

demonstrate the underlying facts by a preponderance of the evidence,

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

deference to the district court's factual findings regarding ineffective

assistance of counsel if they are supported by substantial evidence and not

clearly wrong but review the district court's application of the law to those

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

(2005).

Torrez was convicted, pursuant to a jury verdict, of aggravated

stalking. See NRS 200.575(1), (2). The district court conducted a hearing

on Torrez's petition over the course of multiple days, received testimony

from numerous witnesses, and concluded that trial counsel was deficient

for:

(1) Failing to subpoena the victim's phone records because

they cast doubt on either the victim's veracity or memory and because "the

State relied heavily on the testimony of [the victim] to prove their case."

Further, it found that "it was extremely important for Trial Counsel to

impeach [the victim's] testimony," and that trial counsel had no valid

explanation for his decision not to subpoena the records.

(2) Failing to object to the lack of direct evidence of prior bad

acts at a Pet rocelli hearing because the victim was the sole witness and

she had no first-hand knowledge of the prior bad acts.

SUPREME COURT OF NEVADA 2 (0) 1947A e (3) Failing to object to the victim's hearsay testimony

regarding the prior bad acts.

(4) Failing to object to the police officers' hearsay testimony

regarding the motive behind the prior bad acts because the officers did not

have first-hand knowledge of any motive.

After making the above findings, the district court

cumulatively considered trial counsel's deficiencies, concluded that, while

"Trial Counsel made multiple errors and did a less than stellar job

handling th[e] case," Torrez was not prejudiced by trial counsel's errors,

and denied Torrez's petition.

Whether considering the claims individually or cumulatively,

we conclude that the district court erred in determining that Torrez was

not prejudiced by trial counsel's deficiencies. The State relied heavily on

the victim's testimony to prove their case, and it was crucial for counsel to

impeach her testimony. The victim's trial testimony was belied by her

phone records, and the phone records would have impeached either her

memory of events or her veracity. Furthermore, trial counsel failed to

object to key testimony regarding Torrez's prior bad acts, or the incidents

used by the State to demonstrate a course of conduct under NRS

200.575(1). Torrez has demonstrated a reasonable probability of a

different outcome at trial had counsel impeached the victim's testimony

with her phone records and/or objected to key testimony used to establish

an element of the offense. Therefore, we conclude that the district court SUPREME COURT OF NEVADA 3 (0) 1947A erred in denying Torrez's petition and he is entitled to a new jury trial.

Accordingly, we

ORDER the judgment of the district court REVERSED AND

REMAND this matter to the district court for proceedings consistent with

this order."

fr=lt,A-ua-e-71.\ Hardesty

Douglas '74 cc: Hon. William Rogers, District Judge Law Offices of John P. Schlegelmilch, Ltd. Attorney General/Carson City Lyon County District Attorney Third District Court Clerk

'Because of the decision reached in this order, we need not reach the merits of Torrez's remaining claims.

The fast track response submitted in this case fails to comply with NRAP 32(a)(4) because it does not contain page numbers. See NRAP 3C(h)(1) (requiring fast track filing to comply with the provisions of NRAP 32(a)(4)-(6)). W caution counsel for the State that future failure to follow the Nevada Rules of Appellate Procedural when filing briefs with this court may result in the imposition of sanctions. See NRAP 3C(n).

SUPREME COURT OF NEVADA 4 (0) 1947A Z