McCallister (Donald) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA

DONALD E. MCCALLISTER, No. 68445 Appellant, vs. THE STATE OF NEVADA, FIL Respondent. FEB 17 2017 ELIZABETH BROIv•IN % CLERK F SU"kEME COURT BY • 4"4 DEPIETC ir 11<d LEF

ORDER AFFIRMING IN PART, REVERSING IN PART AND REMANDING This is an appeal from a district court order denying appellant s. Donald E. McCallister's postconviction petition for a writ of habeas corpu Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge. McCallister argues that the district court erred in rejecting his claims that he received ineffective assistance from his trial counsel. We affirm in part and reverse in part. To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient and that prejudice Warden resulted. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); the test v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting in Strickland). Both components of the inquiry must be shown, the Strickland, 466 U.S. at 697, and the petitioner must demonstrate underlying facts by a preponderance of the evidence, Means v. State, 120 t Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give deference to the distric court's factual findings that are supported by substantial evidence and not clearly wrong but review the court's application of the law to those facts de (2005). novo. Lader o. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 "[T]rial counsel's strategic or tactical decisions will be virtually SUPREME COURT OF NEVADA

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v. State, 120 unchallengeable absent extraordinary circumstances." Lara omitted). Nev. 177, 180, 87 P.3d 528, 530 (2004) (internal quotation marks McCallister first argues that trial counsel should have asserted a statute-of-limitations defense. We agree with the district court as to the that McCallister did not demonstrate deficient performance se there charges of sexual assault of a minor under 14 years of age becau based on was no viable statute-of-limitations defense to those charges v. Quinn, 117 NRS 171.095(1) (1993) 1 and NRS 171.083(1). See also State overy" for Nev. 709, 71516, 30 P.3d 1117, 1121-22 (2001) (discussing "disc 51, 56, 752 purposes of NRS 171.095(1)(a)); Winstrom v. State, 104 Nev. a minor is P.2d 225, 228 (1998) (discussing when sex offense involving Hubbard committed in a "secret manner"), overruled on other grounds by we agree that v. State, 112 Nev. 946, 920 P.2d 991 (1996). In particular, 83(1) in the victim filed a police report within the meaning of NRS 171.0 ations November 2006 and, as a result, that statute removed the limit es. 2 We period for commencing a prosecution on the sexual assault charg ctive- disagree, however, with the district court's assessment of this ineffe 14 years assistance claim as to the charges of lewdness with a child under thus did of age because NRS 171.083(1) is limited to "sexual assault" and

ed lAt all pertinent times in these proceedings, NRS 171.095(1) appli Bailey v. as amended in 1993. See 1993 Nev. Stat., ch. 177, § 1, at 305-06; g that State, 120 Nev. 406, 407-08, 91 P.3d 596, 597 (2004) (explainin limitations period is that in effect at the time of the offense).

2We note that NRS 171.083 applied to each count of sexual assault to sexual because the Legislature expressly intended the statute to apply te of assaults committed before its effective date where the statu see State limitations had not yet run. 1997 Nev. Stat., ch. 248, § 4, at 891; v. Merolla, 100 Nev. 461, 464, 686 P.2d 244, 246 (1984).

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n on the not remove the limitations period for commencing a prosecutio (reviewing lewdness charges. See Bailey, 120 Nev. at 409, 91 P.3d at 598 ing); ct statute for its plain language where words have an ordinary mean abuse of a NRS 171.095(1)(b) (referring to "any offense constituting sexual . It further child, as defined in NRS 432B.100," which includes lewdness) enced appears that the prosecution for the lewdness charges was not comm st period within the applicable limitation period even considering the longe unlikely afforded by NRS 171.095. Although we acknowledge that it is to raise a that counsel could have had a sound strategic reason for failing People v. statute-of-limitations defense to the lewdness charges, see no Harris, 43 N.E.3d 750, 753 (N.Y. 2015) (holding "there could have been as against strategic purpose for failing to raise the statute of limitations Defense the time-barred charge"); ABA Criminal Justice Standards for the hearing Function, 4-5.1(b) (4th ed. 2015), we conclude that an evidentiary rmance is necessary for a final determination as to whether counsel's perfo fell below an objective standard of reasonableness. 3 Second, McCallister argues that trial counsel should have es as an called his supervisor to testify as to his good character, his virtu night. employee, and that other teachers had hosted students over witnesses McCallister has not shown deficient performance because other ony testified to the same matters and therefore the supervisor's testim

would have been cumulative. See Elam v. Denney, 662 F.3d 1059, 1065 (8th Cir. 2011) (observing that the "failure to present cumulative evidence does not constitute ineffective assistance of counsel") (quotation marks omitted); Lara, 120 Nev. at 180, 87 P.3d at 530. We therefore conclude that the district court did not err in denying this claim. Third, McCallister argues that trial counsel should have objected to the State's questions during jury selection. Because McCallister has not demonstrated that the State's inquiries were improper or argued that any of the impaneled jurors were not impartial, see Wesley

v. State, 112 Nev. 503, 511, 916 P.2d 793, 799 (1996) (concluding that defendant is not entitled to relief from limitation of voir dire if impaneled jury is impartial), he has not shown that counsel's performance was deficient or that any objection would have led to a reasonable probability t of a different outcome at trial. We therefore conclude that the distric court did not err in denying this claim. Fourth, McCanister argues that trial counsel should have withdrawn due to counsel's preexisting brain injury and prosecution as the target of a tax investigation. McCallister has not identified and the record does not indicate any effect that counsel's personal issues had on his performance in this matter, and thus McCallister has not shown deficient performance or prejudice. We therefore conclude that the district court did not err in denying this claim. Fifth, McCallister argues that trial counsel should not have introduced evidence of an uncharged act of sexual assault. Based on d counsel's opening statement at trial, it is clear that the strategy behin introducing this evidence was to impeach the victim's credibility. As the State's case relied heavily on the victim's credibility, McCallister has not

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bility demonstrated that counsel's strategy to impeach the victim's credi fell below an objective standard of reasonableness. See Vaca v. State, 314 ective in S.W.3d 331, 335 (Mo. 2010) (holding counsel was not ineff introducing evidence of uncharged misconduct as trial strategy); State v. Nev. Bedell, 322 P.3d 697, 703-04 (Utah 2014) (same); see also Lara, 120 court did at 180, 87 P.3d at 530. We therefore conclude that the district not err in denying this claim. Sixth, McCallister argues that trial counsel did not adequately cross-exa mine the victim. McCanister has not demonstrated that ard of counsel's strategy in cross-examination fell below an objective stand or argued reasonableness, see Lara, 120 Nev. at 180, 87 P.3d at 530, not err in prejudice. We therefore conclude that the district court did denying this claim. Seventh, McCallister argues that trial counsel should have er as to objected to testimony by the school psychologist and another teach it was whether either had hosted a student overnight on the ground that their own improper expert testimony. These witnesses testified based on or other perceived experiences, not based on scientific, technical not as specialized knowledge. They therefore testified as lay witnesses, testimony expert witness. Compare NRS 50.265 with NRS 50.275. As the a futile was admissible, counsel was not deficient in failing to raise , 1103 objection. See Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095 denying (2006). We therefore conclude that the district court did not err in this claim. Eighth, McCallister argues that trial counsel failed to adequ ately prepare him to testify, leading to his impeachment with prior e merely inconsistent statements. Counsel cannot be deemed "ineffectiv

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because his client was unable to adhere to a consistent version of the facts." Commonwealth v. Hill, 301 A.2d 587, 591 (Pa. 1973). The decision and to testify lies with the accused, Lara, 120 Nev. at 182, 87 P.3d at 531, McCallister does not show that counsel's preparation was so deficient that it deprived him "of the ability to choose whether to testify on his own er, behalf," see Beasley v. State, 18 So. 3d 473, 496 (Fla. 2009). Furth McCanister fails to argue prejudice. We conclude that the district court did not err in denying this claim. Ninth, McCallister argues that trial counsel conducted a "rambling" opening statement. The record belies this claim, as counsel's 's opening statement coherently set forth the defense theory that the victim r allegations were not credible. McCallister offers no authority or furthe development for this bare claim and has failed to show either deficient performance or prejudice. We therefore conclude that the district court did not err in denying this claim. Tenth, McCallister argues that cumulative error warrants relief. While it is unclear whether multiple deficiencies in counsel's performance may be cumulated for purposes of demonstrating prejudice, n.17 see McConnell v. State, 125 Nev. 243, 259 n.17, 212 P.3d 307, 318 d (2009), McCallister has identified only one deficiency, for which a reman is warranted. One instance of deficient performance cannot be cumulated. Lastly, McCallister argues that he was entitled to an evidentiary hearing on his claims. Aside from the ineffective-assistance s, claim related to the statute-of-limitations defense to the lewdness charge McCallister has failed to support his claims with specific factual 124 allegations that, if true, would entitle him to relief. See Nika v. State, Nev. 1272, 1300-01, 198 P.3d 839, 858 (2008). We therefore conclude that

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the district court did not err in denying the other claims without conducting an evidentiary hearing. Having considered McCallister's contentions and concluded that his ineffective-assistance claim regarding the statute-of-limitations defense to the charges of lewdness with a child under 14 years of age warrants an evidentiary hearing and that the remainder of his claims lack merit, we ORDER the judgment of the district court AFFIRMED IN PART AND REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent with this order.

Hardesty

J. Parraguirre ‘-' Stiglicli

cc: Hon. Elizabeth Goff Gonzalez, District Judge Paternoster Law Group Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

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Footnotes

[3] The deficiency prong is crucial here beca use it is clear that, if nstrate counsel's performance was deficient, McCallister can demo statute-of- prejudice with respect to the lewdness convictions—a successful charges. limitations defense would have barred a trial on the lewdness dice as We do not believe, however, that McCallister can demonstrate preju uded a to the sexual assault convictions had trial counsel successfully precl trial on the lewdness charges. SUPREME COURT OF NEVADA 3 (0) 1947A a