Warden, Nevada State Prison v. Lischko

• Decision Date: 10 June 1974
• Docket Number: No. 7088,7088
• Parties: WARDEN, NEVADA STATE PRISON, Appellant, v. Joseph LISCHKO, Respondent.
• Court: Nevada Supreme Court

Page 6

523 P.2d 6

90 Nev. 221

WARDEN, NEVADA STATE PRISON, Appellant, v. Joseph LISCHKO, Respondent.

No. 7088.

Supreme Court of Nevada.

June 10, 1974.

Rehearing Denied Aug. 6, 1974.

Robert List, Atty. Gen., Carson City, Robert E. Rose, Dist. Atty. and Kathleen M. Wall, Chief Deputy Dist. Atty., Reno, for appellant.

Vargas, Bartlett & Dixon, and J. Rayner Kjeldsen, Reno, for respondent.

OPINION

THOMPSON, Chief Justice:

This appeal by the State is from an order of the district court granting post-conviction relief in the form of another trial. That court found that Joseph Lischko was denied the effective assistance of counsel in connection with his 1970 trial upon the charge of kidnapping. He was then represented by privately retained counsel. A jury found him guilty as charged and judgment was duly entered upon the verdict. Different counsel was appointed to prosecute an appeal to this court. The judgment of conviction was affirmed. Lischko v. State, 87 Nev. 493, 489 P.2d 89 (1971). On appeal, he did not assert that he had been denied the effective assistance of counsel at trial. The present post-conviction proceeding was instituted through still another attorney of Lischko's choice, and after an evidentiary hearing thereon, resulted in the order granting another trial from which the State has taken this appeal.

1. Although the district court properly may have refused to entertain Lischko's post-conviction petition because of his failure to urge the incompetency of trial counsel as a claim of error upon direct appeal, ¹ it chose instead to conduct an evidentiary hearing and rule upon the merits. That choice fell within its discretionary power. Consequently, we must review the merits also and decide, as a matter of law, whether due process was denied Lischko at trial by reason of the alleged ineffective assistance of counsel.

2. The standard by which such a claim is to be stated is whether the effectiveness of counsel was of such low caliber as to reduce the trial to a sham, a farce, or a pretense. Layton v. State, 87 Nev. 598, 602, 491 P.2d 45 (1971); Smithart v. State, 86 Nev. 925, 931, 478 P.2d 576 (1970); Bean v. State, 86 Nev. 80, 92, 465 P.2d 133 (1970). It is presumed that counsel fully discharged his duties, and that presumption can only be overcome by strong and convincing proof to the contrary. Smithart v. State, supra. Measured by this standard we are wholly unable to find, as did the district court, that trial counsel's handling of the case was ineffective and inadequate, and resulted in the deprivation of constitutional rights. We turn to express our view in this regard.

Preliminary, we note that in October 1969, Lischko and William McCoole jointly were charged with having kidnapped one, Dean Petersen, for the purpose of ransom. Lischko retained private counsel. McCoole was represented by the Public Defender of Washoe County. Neither defendant testified at the trial. Each was convicted and sentenced to prison. Sometime later, a third participant in the offense, a Robert Sheridan, was apprehended, tried and convicted. Lischko's appeal to this court was denied. Almost three years later, this post-conviction proceeding was commenced in which, for the first time, trial counsel is charged with incompetency. The charge is premised mainly upon the fact that counsel elected not to have Lischko testify on his own behalf and tell the story that the whole affair was a hoax planned by the victim's sister, Faye Petersen.

At the evidentiary hearing counsel stated several reasons for his decision not to offer Lischko as a witness. Faye Petersen, who according to Lischko, set up the kidnapping plot, was the person who initiated steps which culminated in a report to law enforcement and the subsequent arrests. Counsel could not square that conduct on her part with his client's tale that she had planned the hoax. Moreover, counsel knew of a recorded statement given by Lischko after his arrest to the district attorney, which could be used to impeach Lischko were he to testify. Finally, the private investigator counsel had hired before trial in an effort to uncover evidence to corroborate Lischko's story found nothing of value. For these reasons and others counsel elected not to offer Lischko as a witness. Counsel had practiced law for many years and had extensive experience in the handling of criminal cases. Contrary to the view of the district court, we find it quite impossible at this late date to declare counsel's trial strategy an indicia of ineffective or inadequate representation.

The lower court apparently gave weight to the following bits of evidence in deciding that Lischko should have another trial. Lischko testified that he wished to take a lie detector test before trial, but that his counsel would not permit him to do so. Counsel did not recall Lischko having expressed that wish. In April 1972 long after the trial, a lie detector test was administered to Lischko and the examiner was of the opinion that his responses to questions were truthful. This was followed in May 1972 by an interview of Lischko while under sodium amytal and the doctor concluded 'that the descriptions given are at a high level of validity.' Although the results of those tests may weigh in favor of the petitioner's truthfulness, neither narco-interrogation nor the lie detector method has received court recognition as possessing the truthworthiness and reliability needed to accord the results the status of competent evidence. Vol. 3A, Wigmore, Chadbourn Revision, §§ 998, 999 (1970). Moreover, it is evident that the test results have no bearing at all upon the charge that trial counsel was ineffective. Counsel accepted his client's story as the truth and urged the defense of a hoax during his closing argument to the jury. Had the test results been available before trial, they would not have been admissible evidence during trial, nor may we assume that counsel's decision not to offer Lischko as a witness would have been altered thereby.

Finally, the district court believed that counsel failed to adequately investigate the case before trial. The record does not demonstrate this to be so. It reveals only that counsel hired a private investigator who was unable to corroborate Lischko's story of a hoax. The investigator's reports are not in the record. We are not informed as to the details of his work, nor as to the extent of his investigation. There was nothing of substance before the court upon which it properly could charge counsel with an inadequate pretrial investigation.

In short, the record before us does not show by clear and convincing evidence that counsel's representation was of such low caliber as to reduce the trial to a sham, a farce, or a pretense.

Reversed.

BATJER, J., and COMPTON and McDANIEL, District Judges, concur.

MOWBRAY, Justice (dissenting):

Respectfully, I dissent.

This is an appeal from an order of the district court granting Joseph Lischko's petition for post-conviction relief and ordering a new trial.

Lischko was tried before a jury and convicted of first-degree kidnapping. He was sentenced to serve 20 years in the Nevada State Prison. At the time of his arrest, Lischko secured private counsel, who represented him throughout his trial. Lischko did not...