Cole v. State
| Decision Date | 16 October 2013 |
| Docket Number | No. 62653,62653 |
| Parties | JAY H. COLE A/K/A HERMAN COLE A/K/A JAY COLE, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Nevada Supreme Court |
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
This is a proper person appeal from an order denying a post-conviction petition for a writ of habeas corpus.1 Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.
In his petition filed on October 30, 2012, appellant claimed that he received ineffective assistance of trial counsel. 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) (). Both components of the inquirymust 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).
First, appellant claimed that his counsel failed to investigate and adequately prepare for trial in regard to the testimony of Officer Pollock. In particular, appellant claimed his counsel should have challenged the officer's testimony about: (1) the beer cans observed in the bed of the truck because the cans were not collected as evidence or included in the report; (2) the soiled clothing because the detention center indicated that their records do not indicate appellant's clothing was soiled; (3) the mention of a partner because the officer does not have a partner; (4) observing the truck running because appellant was allegedly out of gas; and (5) the smell of alcohol because appellant's BAC test came back negative for alcohol. Appellant also claimed that Officer Pollock lied about his observations of appellant's person and behavior. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. Trial counsel questioned Officer Pollock about his observations of appellant's appearance and behavior. Appellant provided no proof supporting his assertions that the officer testified falsely. Appellant failed to demonstrate that further investigation and presentation of evidence in any of the areas described above would have had a reasonable probability of altering the outcome at trial. Therefore, we conclude that the district court did not err in denying this claim.
Second, appellant claimed that his counsel failed to hire an expert to re-test the blood to assess the accuracy of the hydrocodone levels and an expert to testify about whether his levels would have made him impaired given the fact that he had taken hydrocodone for five years andhad built up a tolerance to its effects. Appellant further claimed that counsel should have presented testimony from his treating physician about his drug usage and appellant's medical records. Appellant failed to demonstrate that he was prejudiced given the officer's observations about appellant's behavior and his failure and/or inability to complete the field sobriety tests. Therefore, we conclude that the district court did not err in denying this claim.
Third, appellant claimed that his counsel failed to cross-examine the State's forensic scientist about whether the hydrocodone levels would have resulted in appellant's impairment. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. The forensic scientist testified that appellant's levels were within the high therapeutic range and described the concept of drug tolerance in general terms. Given the officer's testimony about his observations about appellant's appearance and behavior, appellant failed to demonstrate that further testimony regarding these points would have had a reasonable probability of altering the outcome at trial. Therefore, we conclude that the district court did not err in denying this claim.
Fourth, appellant claimed that trial counsel was unprepared for trial and originally erroneously advised him the charges could be dismissed because the blood draw was not timely performed. Appellant failed to demonstrate that his trial counsel's performance was deficient or that he was prejudiced. Appellant failed to demonstrate that his counsel was unprepared for trial due to the alleged mistake about the timing of the blood draw. Appellant failed to demonstrate that further investigation and preparation would have had a reasonable probability of altering theoutcome at trial. Therefore, we conclude that the district court did not err in denying this claim.
Next, appellant claimed that he received ineffective assistance of appellate counsel. To prove ineffective assistance of appellate 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 the omitted issue would have a reasonable probability of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). Both components of the inquiry must be shown. Strickland, 466 U.S. at 697. Appellate counsel is not required to raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, appellate counsel will be most effective when every conceivable issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989).
First, appellant claimed that appellate counsel failed to argue that the police officer gave improper expert testimony regarding the effects of hydrocodone. Appellant failed to demonstrate that his counsel's performance was deficient or that this issue had a reasonable probability of success on appeal because the testimony was rationally based on the perception of the witness and helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue. See NRS 50.265; Collins v. State, 113 Nev. 1177, 1184, 946 P.2d 1055, 1060 (1997).
Second, appellant claimed that appellate counsel failed to argue that there was insufficient evidence. Appellant failed to demonstrate that his counsel's performance was deficient or that this issue had a reasonable probability of success on appeal. The record indicates there was sufficient evidence to establish guilt beyond areasonable doubt as determined by a rational trier of fact. See Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998); Jackson y. Virginia, 443 U.S. 307, 319 (1979). The jury could reasonably infer from the evidence presented that appellant was under the influence of a controlled substance to a degree which rendered him incapable of safely operating or being in actual physical control of a vehicle and that he was driving or in actual physical control of a vehicle on premises open to the public. See 2003 Nev. Stat., ch. 421, § 6, at 2559-60) (former NRS 484.379) (re-codified in NRS 484C. 110(2)). Officer Pollock, responding to a call regarding an accident in a store parking lot, observed appellant behind the wheel of a car, with the engine running and the key in the ignition. The officer described appellant as being unable to comprehend the officer's requests for his paperwork and unable to stand on his own. Appellant's speech was slurred and his gait was unsteady. Appellant was observed with bloodshot, watery and droopy eyes, and appellant failed the horizontal nystagmus test. Additionally, the officer observed that appellant's clothes were soiled. The forensic scientist testing the blood drawn indicated that appellant had 140 nanograms per milliliter of hydrocodone. Therefore, we conclude that the district court did not err in denying this claim.
Third, appellant claimed that his appellate counsel failed to properly challenge the statute for vagueness because the officer testified falsely and the statute does not proscribe the levels prohibited. Appellant failed to...
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