JOHN FRANCIS MAZZAN, Appellant, v. THE STATE OF NEVADA, Respondent
Mazzan v. State
Mowbray and Rose, JJ., concur.
JOHN FRANCIS MAZZAN, Appellant, v. THE STATE OF NEVADA, Respondent.
JOHN FRANCIS MAZZAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 18758
November 27, 1989
783 P.2d 430
[Rehearing denied, March 6, 1990]
Donald York Evans, Reno, for Appellant.
Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Gary Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
The Honorable Robert E. Rose, Justice, participated in the decision of this appeal upon the record, briefs and recording of die oral argument.
OPINION
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. 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).
Under 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).
The 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. Appellant "has not established that 'in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance' " nor has he shown " 'that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel's assistance.'" Burger, 483 U.S. at 795-96 (quoting Strickland, 466 U.S. at 690, 700). Therefore, appellant has not shown that he was denied effective assistance of counsel. See id.; Strickland, 466 U.S. at 687; Griffin, 760 F.2d at 1514.
The jury found the aggravating circumstances that appellant committed the murder in the course of a burglary and a robbery, and found no mitigating circumstances sufficient to outweigh the aggravating circumstances. The jury in appellant's first penalty hearing heard the testimony of many of the witnesses, including appellant's mother, who were not called to testify at the second penalty hearing; and the jury nevertheless imposed a sentence of death. It is not reasonably probable that the testimony of the omitted witnesses concerning appellant's peaceful character before he committed the crime, or the plea of mercy by appellant's mother, would have altered the verdict at appellant's sec ond penalty hearing. Thus, appellant has not shown that, but for the challenged actions of his counsel, there is a reasonable probability that the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. See Strickland, 466 U.S. at 695. Therefore, appellant's sentence will not be disturbed. See id. at 695, 700.
We are also mindful of the fact that appellant specifically requested a repeat performance by counsel who represented him in his trial and first penalty hearing. Appellant sought and obtained the same attorney notwithstanding our prior conclusion that appellant's claim of ineffective assistance of counsel was so meritorious as to warrant our vacating his first sentence of death. Society can ill afford the judicial endorsement of a strategy that would enable a criminal defendant faced with a possible capital sentence to continue a repetition of ineffective assistance by the same counsel of his choice until eventually a jury returns a verdict other than death. It is difficult to avoid the conclusion that appellant deliberately sought a second ineffective presentation by his chosen attorney in order to hedge against the possibility or probability of a second death sentence. Prior to the second penalty hearing, appellant consulted with his attorney concerning the array of witnesses to be called. The record does not reflect contemporaneous disagreement between appellant and his counsel regarding the staging of witnesses. We therefore do not perceive a basis for sympathizing with appellant's belated complaints concerning the quality of his counsel's efforts the second time around.
Appellant further contends that misconduct by the prosecutor at his penalty hearing deprived him of a fair proceeding and violated his constitutional rights. Appellant complains of the prosecutor telling the sentencing jury that its task in sentencing appellant was to make a statement or to "set a standard" for the community. Appellant argues that this caused the jury to view its role improperly in that the jurors were led to disregard or misunderstand their responsibility to make an individualized sentencing determination.
We have remanded capital cases for new penalty hearings when prosecutors threatened the jury with social pressure or community opprobrium. See Collier v. State, 101 Nev. 473, 479, 705 P.2d 1126, 1129 (1985), cert. denied, 486 U.S. 1036, 108 S.Ct. 2025 (1988) ("If we are not angry with him [defendant] . we are not a moral community"). The prosecutor's remarks in the instant case are not comparable to the prosecutorial misconduct in the case cited above. The remarks of the prosecutor do not mandate reversal of appellant's sentence.
Appellant next argues that the prosecutor's reference to Thomas Bean, a notorious prison inmate, inflamed the jury and prejudiced his case. See generally Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), cert. denied, 384 U.S. 1012 (1966). In the context in which it occurred, however, as a rebuttal to testimony concerning appellant's good character while in prison, the reference to Bean was not so prejudicial as to require reversal.
Appellant also contends that the prosecutor impermissibly interjected his personal opinion by telling the jury that, according to his professional experience, appellant deserved the death penalty. The prosecutor made these remarks, however, while explaining the prosecutor's function in the penalty hearing to the jury and during his summation of the proceedings in his closing argument. Although the prosecutor's choice of words was unfortunate, in this context those remarks are not misconduct calling for reversal.
Appellant asserts that the prosecutor presented to the jury as an aggravating circumstance the fact that appellant murdered his friend while a guest in the friend's house. Appellant is wrong. The State did not present the evidence as an aggravating circumstance under NRS 200.033, but rather as character evidence properly admissible under NRS 175.552. See Biondi v. State, 101 Nev. 252, 257, 699 P.2d 1062, 1065 (1985); Rogers v. State, 101 Nev. 457, 466, 705 P.2d 664, 670 (1985), cert. denied, 476 U.S. 1130 (1986).
Having reviewed the record, we conclude that the prosecutor's conduct did not impinge on appellant's fundamental rights and did not deny appellant a fair proceeding. Therefore, it is not a basis for relief. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). In view of our conclusion, appellant's contention that he was denied effective assistance of counsel in his direct appeal by his counsel's failure to present arguments concerning the prosecutor's conduct discussed above is without merit.
Having concluded that appellant's contentions lack merit, we affirm the district court's decision.
Mowbray and Rose, JJ., concur.
It is noteworthy that appellant specifically requested representation in his second penalty hearing by counsel whose previous efforts resulted in a conviction of first degree murder, a sentence of death, and a determination of ineffectiveness of counsel by this court.