IN THE SUPREME COURT OF THE STATE OF NEVADA
JASON T. MATHIS, No. 79327
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILE
NOV 1 3 2020
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Michelle Leavitt, Judge.
Appellant Jason Mathis asserts that the district court erred in
denying claims of ineffective assistance of counsel. To prevail on a claim of
ineffective assistance of trial counsel, a petitioner must demonstrate
counsel's performance was deficient because it fell below an objective
standard of reasonableness, and resulting prejudice in that there is a
reasonable probability, but for counsel's errors, the outcome of the
proceedings would have been different. Strickland v. Washington, 466 U.S.
668, 687 (1984). The petitioner must demonstrate both components of the
ineffective-assistance inquiry—deficient performance and prejudice. Id. at
697. We give deference to the district court's factual findings if supported
by substantial evidence and not clearly wrong 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).
First, appellant argues that counsel failed to properly object to
the introduction of Chanel Rowel's statement as an excited utterance. He
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asserts that counsel confused the standards between excited utterance and
present sense impression and did not cross-examine the officer with a report
indicating that Rowel made the statement after she calmed down.
Appellant failed to demonstrate prejudice. The district court referred to the
correct standard in admitting the statement. Thus, there is no indication
that counsel's confusion adversely impacted the district court's evidentiary
ruling. The police report was prepared by an officer who responded to the
scene after the testifying officer had diffused the situation. The testifying
officer maintained that he heard the statement while Rowel was still excited
as a result of appellant's threats. See NRS 51.095 (A statement relating to
a startling event or condition made while the declarant was under the stress
of excitement caused by the event or condition is not inadmissible under the
hearsay rule."). Therefore, appellant did not demonstrate that counsel
could have successfully challenged the admission had he pursued this
strategy. Notably, this court concluded on appeal that the statement was
admissible as an excited utterance. See Mathis v. State, Docket No. 52547,
Order of Affirmance (June 30, 2011) at 2-4. Accordingly, the district court
did not err in denying this claim.
Second, appellant argues that trial counsel should have
compelled Rowel to testify to rebut her out-of-court statements and expose
her bias. Appellant failed to demonstrate deficient performance. A defense
investigator met with Rowel, and she offered a written recantation of her
excited utterance. However, she stated that if compelled to testify at trial,
she would disavow her recantation and testify that appellant admitted that
he killed the victims. Given the limited benefit of showing her inconsistent
out-of-court statements and the potential harm this testimony could have
done to the defense, counsel did not act unreasonably in not pursuing her
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testimony. Moreover, appellant failed to demonstrate prejudice as he had
made similar admissions to two other witnesses and other circumstantial
evidence implicated him in the crimes. Appellant possessed a weapon of the
type used and had purchased ammunition of the type used, a car similar to
his girlfriend's car was seen leaving the area, he left the state shortly after
the shooting, and his girlfriend's car was set on fire in another state.
Accordingly, the district court did not err in denying this claim.
Third, appellant argues that counsel should have introduced
testiniony from Tanisha Aaron and sought to have her palm print compared
to unidentified prints on her car, in which one of the victims was found.
Appellant failed to demonstrate deficient performance or prejudice.
According to appellant's trial counsel, the defense investigator did not find
that Aaron could provide any exculpatory or favorable evidence. As to the
unidentified prints, given the additional evidence implicating appellant in
the crimes, he did not demonstrate a reasonable probability of a different
outcome even if counsel was able to prove several palm prints on Aaron's
car had been left by Aaron. As appellant did not meet his burden of
demonstrating that counsel was ineffective, the district court did not err in
denying this claim.
Fourth, appellant argues that counsel failed to appear at
critical pretrial proceedings. Appellant did not demonstrate deficient
performance or prejudice. Appellant identifies four pretrial proceedings
that his counsel did not attend. However, the planned subject matter of
those proceedings, and matters raised by appellant in his counsel's absence,
1He also contends that counsel should have sought to have her print
compared to a bloody pahn print on the car. However, the condition of the
bloody palm print made it unlikely it could be matched to any person.
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were addressed at subsequent hearings that his counsel attended.
Therefore, the district court did not err in denying this claim.
Fifth, appellant argues that trial counsel should have objected
to the admission of rap lyrics he authored on the basis that their probative
value was outweighed by the danger of unfair prejudice. We agree that
counsel should have objected to the lyrics on this basis.2 The State
introduced multiple stanzas and phrases from the lyrics seized from
appellant's cell. The lyrics made general references to weapons and
ammunition, gunshot wounds, and homicide in general. While some of the
lyrics could be interpreted as relating to the charged crime, most of them
did not. Thus, the admission of those lyrics had no purpose besides showing
a propensity for violence. See Holmes v. State, 129 Nev. 567, 573,
306 P.3d
415, 419 (2013) (recognizing that court may exclude "defendant-authored
fictional accounts . . . when offered to show a propensity for violence").
However, appellant failed to demonstrate prejudice. Other evidence,
primarily his own admissions to other people, implicated appellant in the
crimes. Therefore, the district court did not err in denying this claim.
Sixth, appellant argues that counsel failed to prepare him to
allocute and to investigate potential mitigating evidence.3 Had he been so
20n direct appeal, appellant argued that the rap lyrics probative
value was outweighed by the danger of unfair prejudice. In summarily
stating that this argument lacked merit, this court did not indicate whether
the lyrics were admissible, whether any error in admitting the lyrics was
not plain, or whether the admission did not prejudice appellant's
substantial rights. See Mathis, Docket No. 52547, Order of Affirmance at 1
n.1.
3Appellant also argues that counsel essentially gave up during the
penalty hearing by conceding to sentencing by the court to the maximum
sentence. This argument takes trial counsel's words out of context. Counsel
4
prepared, appellant claims he would have tried to make a more favorable
impression on the jury. As to the allocution, appellant failed to demonstrate
deficient performance. Counsel testified that he warned appellant to
refrain frorn expressing his frustration at the guilty verdict during
allocution. As appellant did not allege or show what evidence counsel
should have investigated or introduced, see Hargrove v. State, 100 Nev. 498,
502,
686 P.2d 222, 225 (1984), appellant did not demonstrate deficient
performance or prejudice. Therefore, the district court did not err in
denying this claim.
Having considered appellant's contentions and concluding that
they do not warrant relief, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
xst-4-1
4-\ , J. .
6.49-fic , J.
Hardesty Cadish
cc: Hon. Michelle Leavitt, District Judge
McLetchie Law
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
relayed appellant's wishes to waive the penalty hearing and proceed to
sentencing before the trial judge. Counsel and appellant were frustrated by
the State's refusal to stipulate to his waiver. Counsel did not attempt to
stipulate to the maximum sentence, merely to the court's authority to
impose the maximum sentence.
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