Mazzan v. State

783 P.2d 430, 105 Nev. 745, 1989 Nev. LEXIS 299
CourtNevada Supreme Court
DecidedNovember 27, 1989
Docket18758
StatusPublished
Cited by8 cases

This text of 783 P.2d 430 (Mazzan v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mazzan v. State, 783 P.2d 430, 105 Nev. 745, 1989 Nev. LEXIS 299 (Neb. 1989).

Opinions

[747]*747OPINION

By the Court, Steffen, J.:

On October 19, 1979, a jury convicted appellant of first degree murder. Following a penalty hearing, appellant was sentenced to death. This court affirmed appellant’s conviction but vacated his sentence and remanded the case for a new penalty hearing. Mazzan v. State, 100 Nev. 74, 675 P.2d 409 (1984). Laurence McNabney, appellant’s appointed counsel at his trial and first penalty hearing, represented appellant again at the second penalty hearing.2 The jury at the second penalty hearing also set the penalty at death, and on direct appeal, we affirmed the sentence. Mazzan v. State, 103 Nev. 69, 733 P.2d 850 (1987). Subsequently, appellant filed in the district court a petition for post-conviction relief and a motion for a stay of execution. The district court granted the stay and held a hearing on appellant’s petition. On December 2, 1987, the district court entered an order denying appellant’s petition for post-conviction relief. This appeal followed.

Appellant contends that he was denied his right to effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) and Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004 (1985), at his second penalty hearing. In particular, appellant contends that his attorney’s failure to present testimony of several character witnesses as evidence of mitigating circumstances manifests ineffective assistance of counsel.

At the hearing on appellant’s petition for post-conviction relief, appellant presented testimony by his mother, his former wife, a business associate and some friends and acquaintances. These witnesses provided favorable testimony regarding appellant’s character at the time they were in contact with him, and indicated they would have been willing to testify at appellant’s penalty hearing. Appellant states that he was entitled to present such character evidence under NRS 175.552 and Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982). Appellant further asserts that his mother could have presented an effective plea for mercy to the sentencing jury, had counsel called her to testify, and that he was entitled to have her make such a plea under Caldwell v. Mississippi, 472 U.S. 320, 330-31 (1985).

[748]*748Under the two-part test of Strickland v. Washington, 466 U.S. at 687, in order to obtain relief, appellant must (1) “[show] that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) “show that the deficient performance prejudiced the defense,” and that “counsel’s errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable.”

In deciding an ineffective assistance of counsel claim, a reviewing court “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct” and “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. Moreover, the “distorting effects of hindsight” must be avoided in the court’s review. Id. at 689.

Appellant’s penalty hearing counsel testified that he made a conscious, strategic decision to focus his presentation on evidence of Mazzan’s good character while in prison, to the exclusion of other evidence, in support of his argument for a sentence of imprisonment rather than imposition of the death penalty. Counsel presented the testimony of a prison chaplain and a prison counselor at the penalty hearing. Counsel intended to show by this testimony that Mazzan’s life had value and meaning in prison and should therefore not be taken. These witnesses were in frequent contact with appellant and spoke favorably of his character as perceived by them shortly before the time of the penalty hearing.

Appellant’s counsel also presented the victim’s father to the sentencing jury, who testified that he had no affirmative desire that the death penalty be imposed upon appellant. Counsel’s strategy of thereby attempting to allay any desire or perceived need for retribution among the jurors was reasonable.

Counsel was aware of the possibility of calling appellant’s mother and some of the other witnesses whose absence constitutes the basis for appellant’s complaint; counsel had presented their testimony at the guilt phase of appellant’s trial and had discussed the choice of witnesses at the penalty hearing with appellant. Counsel’s choice of witnesses at the penalty hearing was an informed, strategic choice, and is therefore “virtually unchallengeable.” See Strickland, 466 U.S. at 690, quoted in Ybarra v. State, 103 Nev. 8, 14, 731 P.2d 353, 357 (1987). See also Griffin v. Wainwright, 760 F.2d 1505, 1514 (11th Cir. 1985), cert. denied, 476 U.S. 1123 (1986).

[749]*749The witnesses available but not called could have testified, consistent with their testimony at the hearing on appellant’s petition for post-conviction relief, regarding appellant’s character as they had perceived it as much as several years before he committed the crime. Testimony regarding appellant’s lack of a violent nature in the past, however, would likely carry little weight in view of his recent conviction for a brutal murder. See Griffin, 760 F.2d at 1512. Counsel’s decision to forego presenting such testimony does not necessarily constitute ineffective assistance. Id. See also Burger v. Kemp, 483 U.S. 776, 792 (1987). Further, in the context of this case, the hope of swaying the jury with an expression of the mother’s feelings for her convicted son is sufficiently speculative that counsel’s failure to use her was not ineffective assistance. Cf. People v. Wright, 768 P.2d 72, 97 (Cal. 1989) (counsel’s failure to object to exclusion of defendant’s mother from proceedings was not ineffective assistance).

Counsel’s focus on the presentation of testimony regarding appellant’s character after he committed the crime and the testimony of the victim’s father was an informed, strategic choice. Appellant has not overcome the presumption that it constituted reasonably effective advocacy. See Strickland, 466 U.S. at 690.

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Mazzan v. Warden, Ely State Prison
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945 P.2d 438 (Nevada Supreme Court, 1997)
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926 P.2d 265 (Nevada Supreme Court, 1996)
Mazzan v. Warden, Nevada State Prison
921 P.2d 920 (Nevada Supreme Court, 1996)
Mazzan v. State
783 P.2d 430 (Nevada Supreme Court, 1989)

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Bluebook (online)
783 P.2d 430, 105 Nev. 745, 1989 Nev. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mazzan-v-state-nev-1989.