Opinion
No. 82587-COA
10-07-2021
Leroy Hall MCCOY, Appellant, v. The STATE of Nevada, Respondent.
Leroy Hall McCoy Attorney General/Carson City
Leroy Hall McCoy
Attorney General/Carson City
ORDER OF AFFIRMANCE
McCoy argues the district court erred by denying his claims of ineffective assistance of trial counsel. To demonstrate ineffective assistance of counsel, a petitioner must show counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that there was a reasonable probability of a different outcome absent counsel's errors. Strickland v. Washington , 466 U.S. 668, 687-88 (1984) ; Warden v. Lyons , 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland ). Both components of the inquiry must be shown. Strickland , 466 U.S. at 687. We give deference to the district court's factual findings if supported by substantial evidence and not clearly erroneous but review the court's application of the law to those facts de novo. Lader v. Warden , 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). A petitioner must raise claims supported by specific factual allegations that are not belied by the record and, if true, would entitle him to relief. Cf. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984). "Trial counsel need not lodge futile objections to avoid ineffective assistance of counsel claims." Ennis v. State , 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006).
First, McCoy claimed that counsel should have objected to the admission of text messages between McCoy and another person. McCoy claimed that the evidence was "false" because it was admitted under the "pretense" that Joslyn H. was the one texting him. McCoy further claimed that the State never proved the messages were between Joslyn and McCoy and a detective testified that Joslyn was not on the scene when the detective received the evidence. The district court properly admitted the evidence because Joslyn testified that she recognized the text messages and that they were texts between her and McCoy. See NRS 52.015(1). To the extent McCoy challenged Joslyn's credibility, it was the jury's role to determine her credibility and the amount of weight to give her testimony in light of conflicting testimony. See Bolden v. State , 97 Nev. 71, 73, 624 P.2d 20, 20 (1981). Accordingly, McCoy failed to demonstrate counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome had counsel objected to the admission of the evidence on the grounds offered by McCoy. Therefore, we conclude the district court did not err by denying this claim.
Second, McCoy claimed that counsel should have objected to the admission of the text messages on Confrontation Clause grounds because the evidence was given to police by someone other than Joslyn and the State failed to establish that person was unavailable to testify. Because Joslyn provided the foundation for the exhibit and was subject to cross-examination, any Confrontation Clause objection would have been futile. See Chavez v. State , 125 Nev. 328, 338, 213 P.3d 476, 483 (2009) ("[T]he opportunity to cross-examine is the focal point of the right to confront."). Accordingly, McCoy failed to demonstrate counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome had counsel objected to the admission of the evidence on Confrontation Clause grounds. Therefore, we conclude the district court did not err by denying this claim.
Third, McCoy claimed that counsel should have objected to the admission of the victim's medical records on the grounds that McCoy should have been allowed to confront the attending doctor about the victim's injuries and whether they were self-inflicted. McCoy did not allege that the records contained accusatory statements or prejudicial items. Thus, objecting to their admission on the grounds offered by McCoy would have been futile. See NRS 48.025 ; NRS 51.115 ; Flores v. State , 121 Nev. 706, 718 n.33, 120 P.3d 1170, 1178 n.33 (2005). To the extent McCoy claimed counsel was ineffective for not calling the doctor as a witness, McCoy did not allege what the doctor's testimony would have been or how it would have affected the outcome of the proceedings. Accordingly, McCoy failed to demonstrate counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome had counsel objected to admission of the medical records. Therefore, we conclude the district court did not err by denying this claim.
Fourth, McCoy claimed that counsel failed to conduct an adequate investigation. A petitioner claiming counsel did not conduct an adequate investigation must allege what the results of a better investigation would have been and how it would have affected the outcome of the proceedings. See Molina v. State , 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). McCoy's bare claims failed to explain what the results of a better investigation would have been and how they would have affected the outcome of the proceedings. Accordingly, McCoy failed to demonstrate counsel's performance fell below an objective standard of reasonableness or a reasonable probability of a different outcome had counsel conducted the suggested investigations. Therefore, we conclude the district court did not err by denying this claim.
McCoy next argues the district court erred by denying his claims of ineffective assistance of appellate counsel. To demonstrate ineffective assistance of appellate counsel, a petitioner must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in 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 687. 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).
McCoy claimed that counsel failed to raise Brady violations on appeal. McCoy alleged the State violated Brady by failing to turn over law enforcement notes and blood and DNA evidence. McCoy's bare claim failed to explain how counsel was deficient or how these arguments had a reasonable probability of success on appeal. Moreover, this court has previously held that there was overwhelming evidence of McCoy's guilt. See McCoy v. State , Docket No. 76447-COA (Order of Affirmance, October 31, 2019). Therefore, we conclude the district court did not err by denying this claim.
Brady v. Maryland, 373 U.S. 83 (1963).
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
To the extent McCoy attempts to present new claims or facts on appeal, we decline to consider them in the first instance. See McNelton v. State , 115 Nev. 396, 416, 990 P.2d 1263, 1276 (1999).