Mazzan v. Warden

• Decision Date: 27 January 2000
• Docket Number: No. 30998.,30998.
• Citation: 116 Nev. 48,993 P.2d 25
• Parties: John Francis MAZZAN, Appellant, v. WARDEN, ELY STATE PRISON, E.K. McDaniel, Respondent.
• Court: Nevada Supreme Court

993 P.2d 25

116 Nev. 48

John Francis MAZZAN, Appellant, v. WARDEN, ELY STATE PRISON, E.K. McDaniel, Respondent.

No. 30998.

Supreme Court of Nevada.

January 27, 2000.

JoNell Thomas, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City, Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

In 1979, appellant John Francis Mazzan was convicted of first-degree murder and sentenced to death in the Second Judicial District Court. The state's theory was that he stabbed Richard Minor to death in Minor's home and then took money and drugs from the home. On appeal, this court affirmed Mazzan's conviction but reversed his sentence. Mazzan v. State (Mazzan I), 100 Nev. 74, 675 P.2d 409 (1984). After a second penalty hearing, Mazzan again received the death penalty, and this court affirmed that sentence on the second appeal. Mazzan v. State (Mazzan II), 103 Nev. 69, 733 P.2d 850 (1987). Mazzan petitioned for post-conviction relief, the petition was denied, and this court affirmed the denial. Mazzan v. State (Mazzan III), 105 Nev. 745, 783 P.2d 430 (1989).

Mazzan next petitioned for post-conviction habeas relief. After the First Judicial District Court summarily denied the petition, Mazzan appealed, and this court remanded the matter for reconsideration. After being transferred to Ely State Prison, Mazzan moved for a change of venue to the Seventh Judicial District Court. The district court denied the motion; this court dismissed Mazzan's interlocutory appeal of the denial without reaching the merits. Mazzan v. State (Mazzan IV), 109 Nev. 1067, 863 P.2d 1035 (1993).

The district court then dismissed the habeas petition as procedurally barred. This court affirmed. Mazzan v. State (Mazzan V), 112 Nev. 838, 921 P.2d 920 (1996). Mazzan petitioned for rehearing, asserting that he had discovered that the state had withheld exculpatory police reports from him before his trial. This court denied rehearing, concluding that his remedy was to file another habeas petition in the district court. Mazzan v. State, 112 Nev. 838, 921 P.2d 920 (1996) (Order Denying Rehearing, November 8, 1996). Mazzan did so.

After an evidentiary hearing, the district court entered an order denying the habeas petition. The court concluded that although the police reports were material and exculpatory and were probably not provided to Mazzan, prosecutors had orally communicated to his defense counsel any information required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The court's order did not address other claims Mazzan had raised in his petition. Mazzan appeals.

FACTS

Facts disclosed at earlier proceedings

Mazzan testified at trial to the following. He moved to Reno in April 1978 and worked as a hairdresser while his wife worked in Las Vegas as a dancer. Mazzan and his friends used marijuana and cocaine, and he obtained cocaine from April Barber, a prostitute at Mustang Ranch. He became friends with Barber's boyfriend, Richard Minor, who supplied him with marijuana.

Mazzan spent the evening of Wednesday, December 20, 1978, at Minor's residence. The two smoked marijuana, snorted cocaine, and taped albums. Sometime in the early morning, Mazzan tried to leave, but his car would not start. Minor let him spend the night, and he bedded down behind Minor's couch and slept. Mazzan awoke to the sound of a scuffle in the kitchen and saw Minor struggling with someone. The person left through the door, and Mazzan heard two people running and then a car driving away. Minor had blood all over him. Mazzan was confused and shocked; he stepped out the door, could not see anything, and went back inside. Minor was leaning against the wall and then collapsed and died. Mazzan left and did not report the crime because he was afraid that he would be implicated in the drug use and might be in danger from the perpetrators of the crime if they found out he knew anything. He was sure Minor was already dead, and he expected that Minor's younger brother would arrive that morning and discover Minor. When Mazzan returned home, he cleaned his shoes and washed his hands. He had his clothes laundered. When police later questioned him, he told them he had thrown away a pair of running shoes about a month earlier. The state provided evidence that that same type of running shoe had a pattern resembling bloody footprints in the kitchen at the crime scene.

Minor's father, a justice of the peace, discovered his son's body on Friday, December 22, 1978, the day after the killing. On Wednesday he had gone to his son's residence. Mazzan was present, and Minor had introduced him as "my friend Jack." (Mazzan was called both John and Jack.) Minor's younger brother also saw Mazzan at the residence Wednesday evening. He had met Mazzan a few times before, and Minor and Mazzan appeared to be friends. A little past midnight that same night, John Sullivan saw Mazzan at Minor's. Sullivan bought a quarter ounce of Hawaiian marijuana from Minor for $65.00 and left.

Jim Shallman, a friend of Minor's, testified that Minor had traveled to Hawaii, evidently not long before his death, and returned with about two pounds of marijuana. Shallman saw Minor with $6,000.00 in cash in mid-October 1978. He had seen Mazzan with Minor a few times, and the two appeared to be friends.

At the crime scene, investigators found a blanket with several cuts in it and blood on it. The residence was small, a converted garage. An investigator theorized that Minor was first attacked with a knife while lying on the couch with the blanket over him and that he then went into the kitchen toward the door and refrigerator. Minor was found on the floor near the couch. Prints left in blood by a kind of sports shoe were found on the kitchen floor and the blanket; only one print was distinct. No identifiable fingerprints were found. Most of the blood was found in the kitchen and where the body was lying. A smear of blood was later found on the inside of the driver's side window of Mazzan's car.

Minor was stabbed fifteen times, including in the heart and lungs. There was no sign of forced entry to the residence. The prosecution theorized that he was killed for his money and drugs. However, other than the $65.00 received by Minor that night, there was no clear evidence of how much money or drugs Minor had the night he was killed.

Two days after the murder, Mazzan flew to Las Vegas to see his wife for the holidays. Las Vegas police contacted him, informed him he was a suspect in Minor's killing, and told him he should contact the police in Reno when he returned there. He volunteered no information about Minor's death.

Mazzan returned to Reno on December 26, 1978, and went to the police station the next morning around 11:30 a.m. He was questioned for about twelve hours and then arrested for murder. Mazzan first told the police that on the night in question, he had left Minor's place around midnight and did not see the murder. When told that blood had been found in his vehicle, Mazzan admitted that he had been present when Minor was killed. The police checked and found no apparent bruises on Mazzan. (Minor had been about six feet four inches tall and weighed about two hundred fifteen pounds.) Over the next few days, the police obtained a number of statements from Mazzan that showed some discrepancies, e.g., in regard to the position that he left Minor in, the shoes which he had worn at Minor's residence, and what he had done immediately after he left there. Mazzan's trial counsel, Larry McNabney, later stipulated to the voluntariness of these statements.

On January 3, 1979, a week after Mazzan's arrest, a garbage worker found a bloody coat belonging to Mazzan and a purse and bloody clothes belonging to April Barber, Minor's girlfriend, in a trash can not far from Mazzan's home. A key to a lock at Minor's residence was in Barber's purse. Barber had been missing for about a month. The evidence showed that these items were placed in the trash after Mazzan had been arrested and incarcerated. On February 13, 1979, the state filed an amended information alleging that Mazzan either murdered Minor or aided and abetted in his murder.

During trial, as the state prepared to rest, District Attorney Cal Dunlap moved to block any inquiry by the defense into either the police investigation of Minor's drug connections or a statement by Minor's sister. The sister had informed police that Minor had told her not long before his death that he was in danger due to his drug dealings. Dunlap argued that it was all inadmissible hearsay evidence. McNabney countered that the defense case depended on showing that after Mazzan was in custody, the police went to Ohio, Indiana, and Hawaii and continued their investigation. The defense theory was that Minor was involved with drug traffickers who murdered him and left Mazzan "holding the bag. And, if we can't get into that, we might as well end the whole trial right here." The district court asked where Minor's sister was. McNabney said, "I don't know; I didn't even know about this sister's statement until I saw it in the police report today. I don't know where she is. That's the first I ever knew of it." The court considered the sister's statement admissible but concluded that "the fact that the police were following leads around the country" was not relevant. As a result, McNabney was not able to elicit any evidence other than that the police had investigated in the Midwest after Mazzan was in custody.

After the court's ruling, the state called Minor's sister, Cynthia Shelley, to testify. About two weeks before his death, Minor told her and her husband "that he was afraid, that he had been involved in some sort of dealing, and he wanted to get out, and he was afraid." On cross-examination, McNabney asked Shelley who her husband...