facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 

(2005). 

First, appellant argues that the district court erred by denying 

his claim that trial counsel was ineffective for failing to investigate. 

Appellant claims that had counsel investigated he would have presented a 

defense that there was no evidence linking appellant to the crimes and 

would not have made a concession that appellant was the suspect that 

Officer Cupp chased and shot at. Appellant fails to demonstrate that 

counsel was deficient or that he was prejudiced. 

First, appellant fails to demonstrate that counsel failed to 

investigate. Appellant was given the opportunity to present witnesses to 

the district court at an evidentiary hearing and declined. Therefore, there 

is no evidence in the record that counsel did not investigate or why he 

chose the defense he chose. Further, it appears that counsel did 

understand the facts of the case and there is nothing on the face of the 

record that demonstrates that he did not investigate. 

Second, appellant fails to demonstrate that counsel was 

ineffective for failing to present a defense that appellant was not the 

person that Officer Cupp chased or for conceding that appellant was the 

person Officer Cupp chased. At trial, counsel argued that appellant was 

not one of the people who got out of the vehicle, but instead was in the 

area and Officer Cupp began chasing him, thinking he was involved with 

the people in the car. Appellant argues in his petition and on appeal that 

counsel should have argued that appellant was not the person that Officer 

Cupp chased but instead was the person that Officer Rios chased and just 

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happened to be in the area. 1Given the evidence presented in this case, 

that there was an almost continuous line of sight of appellant from the 

vehicle crash to being found in the dumpster, appellant fails to 

demonstrate that a defense that he was not the person Officer Cupp 

chased would have had a reasonable probability of resulting in a different 

outcome at trial. Therefore, the district court did not err in denying this 

claim. 

Next, appellant argues that the district court erred by denying 

his claim that trial counsel was ineffective for failing to cross-examine a 

witness regarding her in-court identification of appellant. Appellant fails 

to demonstrate that he was prejudiced. He fails to demonstrate a 

reasonable probability of a different outcome at trial had counsel crossexamined the witness given the weakness of the identification. The 

witness first testified that she did not get a good enough look at any of the 

suspects' faces to identify them. She then testified that appellant looked 

similar to one of the suspects, but that she was not sure one way or the 

other. The State even conceded it was not much of an identification when 

it stated, let the "record reflect the identification of Pierre Joshlin to the 

extent that she's made any identification at all." Therefore, the district 

court did not err in denying this claim. 

Next, appellant argues that the district court erred by denying 

his claim that trial counsel was ineffective for failing to object or request a 

mistrial because the State showed a picture of appellant in restraints. 

Appellant fails to demonstrate that counsel was deficient or that he was 

'Appellant argues that the person Officer Cupp chased was a 

different person whom he refers to as "suspect X." 

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prejudiced. First, counsel did object to the picture, so this claim is belied 

by the record. Second, appellant fails to demonstrate that a motion for 

mistrial would have been successful, and counsel is not deficient for failing 

to file a futile motion. Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 

711 (1978). The picture was taken shortly after appellant was arrested 

and was used to demonstrate appellant's appearance the night of the 

chase. Because the jury was aware that appellant had been arrested, the 

photograph did not inform the jury of a fact that it did not already know, 

and appellant was not prejudiced by the jury viewing the photograph. 

See, e.g., Shuman v. State, 94 Nev. 265, 271-72, 578 P.2d 1183, 1187 

(1978) (stating that no prejudice can ensue from seeing what is already 

known). 

Next, appellant argues that the district court erred by denying 

his claim that trial counsel was ineffective for failing to focus on whether 

appellant constructively possessed the weapon found in the dumpster and 

for failing to offer an instruction on constructive possession. Appellant 

fails to demonstrate that he was prejudiced. Given the fact that appellant 

was continuously chased from the vehicle to the dumpster, he was viewed 

with the gun by one of the officers, and the gun was found under his left 

hand in the dumpster, appellant failed to demonstrate a reasonable 

probability of a different outcome at trial had counsel focused more on 

constructive possession or had offered an instruction on constructive 

possession. Therefore, the district court did not err in denying this claim. 

Finally, appellant argues that counsel was ineffective for 

failing to intervene in the State's bill of attainder for a finding of guilt. 

This claim was not raised below and this court declines to address it for 

the first time on appeal. Davis v. State,107 Nev. 600, 606, 817 P.2d 1169, 

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1173 (1991) overruled on other grounds by Means v. State, 120 Nev. 1001, 

1012-13, 103 P.3d 25, 33 (2004). Therefore, we 

ORDER the judgment of the district court AFFIRMED. 

j. 

Hardesty 

Parraguirre 

--TVA 

Cherry 

cc: Hon. David B. Barker, District Judge 

Michael H. Schwarz 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

J. 

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