Warner v. State

• Court: Nevada Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Warner v. State, 102 Nev. 635, 729 P.2d 1359 (Nev. 1986)
• Decision Date: 23 December 1986
• Docket Number: No. 17380,17380
• Parties: James Calvin WARNER, Appellant, v. The STATE of Nevada, Respondent.

Page 1359

729 P.2d 1359

102 Nev. 635

James Calvin WARNER, Appellant, v. The STATE of Nevada, Respondent.

No. 17380.

Supreme Court of Nevada.

Dec. 23, 1986.

Rehearing Denied Feb. 6, 1987.

[102 Nev. 636] Norman Y. Herring, Carson City, for appellant.

Brian McKay, Atty. Gen., Carson City, and Larry G. Bettis, Dist. Atty., Mineral County, for respondent.

OPINION

PER CURIAM:

This is an appeal from an order of the district court denying appellant's petition for post-conviction relief. Appellant was charged with sexual assault, a violation of NRS 200.366, and lewdness with a child under fourteen years of age, a violation of NRS 201.230. Following a jury trial, he was convicted and sentenced on the sexual assault charge to life imprisonment without the possibility of parole until he serves at least ten years, and on the lewdness charge to ten years in prison, the sentences to run concurrently. In this appeal, appellant contends that he was denied the effective assistance of counsel before and during trial, and therefore was denied his right to a fair trial. We agree, and accordingly reverse and remand this case for a new trial.

At appellant's trial, the state presented the testimony of only two witnesses, the alleged victim (appellant's eleven-year-old stepdaughter, Dee) and appellant's wife. The only witnesses with any personal knowledge of the events in question were Dee, appellant, and possibly Dee's seven-year-old brother, Arthur. There was no physical evidence of the alleged incidents; Dee was never given a medical examination.

Appellant primarily contends that his trial counsel did not conduct an adequate investigation before trial. At the post-conviction hearing below, trial counsel, a deputy public defender, admitted that he did not consult with any other attorneys in the public defender's office about the case, even though the potential sentence was as serious as that for a murder case. Although he was encouraged to make use of the public defender's full-time investigator, he declined to do so. Trial counsel admitted that it would have been important to investigate the background of the complaining witnesses, Dee and her mother, but he failed to do so. He never attempted to interview Dee. He did not request that Dee be given a physical examination. Although Dee admitted at trial that she lies on occasion, trial counsel did not request the district court to order Dee to undergo a psychological examination to determine whether Dee was being truthful.

Trial counsel did not present any witnesses in support of appellant's character, although appellant's credibility and the credibility of the alleged victim were central issues in...