IN THE SUPREME COURT OF THE STATE OF NEVADA
`
`JAMES FELDER,
`Appellant,
`vs.
`THE STATE OF NEVADA,
`Respondent.
`
`ORDER OF AFFIRMANCE
`
`No. 37295
`
`F! L.E D
`
`8 2002
`
`DEPUTYt:LEr:,K
`
`This is an appeal from a district court order denying appellant
`
`James Felder's post-conviction petition for a writ of habeas corpus.
`
`On May 31, 1989, Felder was convicted, pursuant to a jury
`
`verdict, of one count of first-degree murder with the use of a deadly
`
`weapon.
`
`Felder filed a direct appeal, and this court affirmed his
`
`conviction.' The remittitur issued on October 23, 1991.
`
`On April 7, 1993, Felder filed a post-conviction petition for a
`
`writ of habeas corpus, alleging that his trial counsel was ineffective. The
`
`district court appointed counsel , and Felder filed a supplemental petition.
`
`The State opposed the petition. After conducting an evidentiary hearing,
`
`the district court denied the petition.
`
`Our review of the record on appeal reveals that Felder's
`
`petition was untimely because it was filed approximately one and one-half
`
`years after this court issued the remittitur in the direct appeal.2 Because
`
`Felder's petition was untimely, it is procedurally barred absent a showing
`
`'Felder v. State, 107 Nev. 237, 810 P.2d 755 (1991).
`
`2See NRS 34.726(1).
`
`Ooh - 0513
`
`

`
`of both good cause for the delay and prejudice.3 Although Felder
`
`acknowledged that his petition was untimely, he alleged good cause in
`
`that he "incorrectly believed that after the Nevada Supreme Court denied
`
`his appeal, his proper remedy was to file in federal court" and
`
`consequently, filed a post-conviction petition in federal district court.
`
`Although Felder was pursuing relief in federal court after his direct
`
`appeal, this court has rejected the proposition that pursuit of federal
`
`habeas relief constitutes good cause for filing an untimely petition.4
`
`Because Felder failed to establish good cause for his untimely petition, it
`
`is procedurally barred, and we explicitly conclude that the petition should
`
`have been denied on that basis.5
`
`We note, however, that the district court correctly determined
`
`that Felder's petition lacked merit, and we affirm the district court's
`
`ruling on that separate, independent ground.6 The district court found
`
`that counsel was not ineffective. The district court's factual findings
`
`regarding a claim of ineffective assistance of counsel are entitled to
`
`3See id.; Lozada v. State, 110 Nev. 349, 353, 871 P.2d 944, 946
`(1994) (holding that good cause for purposes of excusing procedural default
`must be an impediment external to the defense that prevented defendant
`from complying with procedural rule).
`
`4See Colley v. State, 105 Nev. 235, 773 P. 2d 1229 (1989).
`
`5See generally Harris v. Reed, 489 U.S. 255, 263 (1989) (holding that
`procedural default does not bar federal review of claim on the merits
`unless state court rendering judgment relied "clearly and expressly" on
`procedural bar) (citation omitted).
`
`6Id. at 264 n.10 (holding that as long as the state court explicitly
`invokes a state procedural bar, "a state court need not fear reaching the
`merits of a federal claim in an alternative holding.").
`
`2
`
`

`
`deference when reviewed on appeal.? Appellant has not demonstrated
`
`that the district court's findings of fact are not supported by substantial
`
`evidence or are clearly wrong. Moreover, appellant has not demonstrated
`
`that the district court erred as a matter of law.
`
`Accordingly, for the reasons stated in the attached order of the
`
`district court, we
`
`ORDER the judgment of the district court AFFIRMED.
`
`J.
`
`cc:
`
`Hon. Joseph S . Pavlikowski, Senior Judge
`Attorney General/Carson City
`Clark County District Attorney
`David M. Schieck
`Clark County Clerk
`
`7See Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994).
`
`SUPREME COURT
`
`II
`
`OF
`
`NEVADA
`
`3
`
`

`
`ORDR
`STEWART L. BELL
`DISTRICT ATTORNEY
`Nevada Bar #000477
`200 S. Third Street
`Las Vegas, Nevada 89155
`(702) 455-4711
`Attorney for Plaintiff
`
`DISTRICT COURT
`CLARK COUNTY, NEVADA
`
`THE STATE OF NEVADA,
`
`Plaintiff,
`
`-vs-
`
`JAMES L. FELDER,
`#0921958
`
`Defendant.
`
`Case No.
`Dept. No.
`
`C85183
`Sr. Judge
`
`FINDINGS OF FACT, CONCLUSIONS OF
`LAW AND ORDER
`
`DATE OF HEARING: 12/04/00
`TIME OF HEARING: 9:00 A.M.
`
`THIS CAUSE having come on for hearing before the Honorable JOSEPH
`
`PAVLIKOWSKI, Chief District Judge, on the 4th day of December, 2000, the Petitioner being
`
`present, represented by DAVID M. SCHIECK, ESQUIRE, the Respondent being represented
`
`by STEWART L. BELL, District Attorney, by and through H. LEON SIMON,Deputy District
`
`Attorney, and the Court having considered the matter, including briefs, transcripts, arguments
`
`of counsel, and documents on file herein, now therefore, the Court makes the following findings
`
`of fact and conclusions of law:
`
`FINDINGS OF FACT
`
`1.
`
`On September 13, 1988 , James Felder, hereinafter Defendant, was charged by way of
`
`Information with the crime of Murder with Use of a Deadly Weapon (Felony-NRS 200.030,
`
`200.010, 193 . 165) for the August 2, 1988, killing of Gracie Windholz.
`
`2.
`
`On September 20, 1988 , Defendant entered a plea of not guilty. Thereafter , a jury trial
`
`ensued wherein Defendant was found guilty of Murder of the First Degree with Use of a Deadly
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`C. 5 ,^''1
`
`

`
`Weapon. The facts adduced at trial include that: Felder had met the victim, Gracie Windholz,
`
`a slot supervisor, and became friendly with her and her female companion, Brenda Schmitberger,
`
`on a series of gambling trips he had made to Las Vegas from his home in South Carolina. At
`
`the time of the murder, Felder was deeply in debt and on his last trip to Las Vegas he had
`
`borrowed a .25 caliber semi-automatic pistol, later positively identified as the murder weapon,
`
`from the sister of his friend, companion, and cousin, Kerry Dun, in South Carolina and brought
`
`the gun to Las Vegas. The murder weapon was found in Felder's hotel room after the murder
`
`along with a pair of shoes with human blood spots which Felder claimed was fish blood he had
`
`gotten on the shoes while fishing. On the day of the murder Felder picked Brenda up from her
`
`place of employment claiming he couldn't awaken Gracie and took Brenda to the home Gracie
`
`and Brenda shared. When Felder opened the door Brenda saw blood on the floor. Felder
`
`entered the house and brought out a ransom note demanding $200,000.00 for Gracie's safety.
`
`Felder asked Brenda to raise half of the ransom. It was determined that the ransom note was
`
`printed on the same type of printer and paper owned by Felder and a handwriting expert
`
`positively identified hand written insertions on the purported ransom note as being in Felder's
`
`1 2 3 4
`
`handwriting.
`
`3.
`
`On May 25, 1989, Defendant was sentenced to two (2) consecutive sentences of Life with
`
`the Possibility of Parole on the First Degree Murder and Use of a Deadly Weapon convictions.
`
`A Judgment of Conviction was filed May 31, 1989.
`
`4.
`
`On April 30, 1991, the Nevada Supreme Court concluded that the Defendant's
`
`contentions on appeal were without merit and affirmed Defendant's conviction. Felder v. State,
`
`107 Nev. 237, 810 P.2d 755 (1991). Thereafter, Defendant filed with the United States Supreme
`
`Court a Petition for Writ of Certiorari. Defendant's writ was denied on October 7, 1991.
`
`Defendant then filed a Petition for a Writ of Habeas Corpus in the United States District Court
`
`for the District of Nevada.
`
`5.
`
`On December 30, 1992, U.S. District Court Judge Edward C. Reed issued an order
`
`recommending that Defendant voluntarily dismiss his petition due to the fact that
`
`it contained
`
`both exhausted and unexhausted claims. Justice Reed also urged Defendant to proceed through
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`P \WPDOCS\ORDR\FORDR` 804\80408501 WPD
`
`

`
`the Nevada State court system in order to exhaust his unexhausted claims . (United States District
`
`Court Order, filed January 4, 1993). Consequently, on January 15, 1993, Defendant filed a
`
`motion with the U.S. District Court to voluntarily dismiss his petition. On February 12, 1993,
`
`the United States District Court granted Defendant's Motion to Voluntarily Dismiss his Writ of
`
`Habeas Corpus.
`
`6.
`
`On April 2, 1993 Defendant filed a Petition for Writ of Habeas Corpus to which the State
`
`responded. After a lengthy delay, Defendant filed a supplemental petition in support of his
`
`Petition for Writ of Habeas Corpus which was received on October 28, 1997. The State
`
`responded on January 14, 1998. Defendant then filed Reply Points and Authorities on April 22,
`
`1998.
`
`7.
`
`An Evidentiary Hearing was held over several months and testimony was taken on
`
`September 7, 1999, December 20, 1999, February 15, 2000, and April 5, 2000. Defendant filed
`
`a Post Hearing Brief on October 17, 2000.
`
`8.
`
`Defendant testified at the evidentiary hearing that he had met a person named Rick Bogart
`
`before the murder of Gracie Windholz. Probably around 1986, Brenda Schmitberger (Brenda)
`
`introduced Rick Bogart (Bogart) to Defendant as her business partner or her investment partner.
`
`Brenda would ask Defendant his opinion on some of the things Bogart was doing. Defendant
`
`gave a statement regarding Brenda and Bogart to Detective Thomas Dillard the day of Gracie
`17
`
`Windholz's murder. Additionally, Defendant gave a statement to Jerry West of the FBI
`
`regarding Brenda and Bogart. Defendant testified that he told his trial attorney, Steven Dahl.
`
`about Bogart's investment scams and Brenda's involvement. Defendant told Mr. Dahl that
`
`Bogart lived at the Jockey Club, lie didn't work, he gambled, and he had gotten Brenda to take
`
`money outside of the United States. Finally, Defendant testified that in 1991 he found out that
`
`Bogart was really Phillip Cohen.
`
`9.
`
`Private Investigator, Ralph Dyment, testified that he was hired by Defendant to
`
`investigate Rick Bogart a/k/a Philip Cohen. Dyment received documents from Beneficial Life
`
`Insurance Company showing that Bogart was issued a life insurance policy. The Life Insurance
`
`policy listed several beneficiaries including Brenda.
`
`6 7
`
`20
`
`21
`
`22-
`
`2 3
`
`24
`
`25
`
`26
`
`27
`
`28
`
`-3-
`
`P•\WPDOCS\ORDR\FORPR\804\80405501.WPD
`
`05:39
`
`

`
`10.
`
`Paul Chidester, a life and health insurance salesman, testified that he maintained a
`
`continuous license in the State of Nevada since 1981. Chidester was writing policies for
`
`Beneficial Life Insurance Company and Chidester issued Rick Bogart a life insurance policy in
`
`1985. Bogart listed a number of beneficiaries on his policy including Brenda Schmitberger.
`
`Bogart requested Chidester correspond with the listed beneficiaries to give them notice of their
`
`interest in the insurance policy. A letter from Chidester to one beneficiary, Martin Hennessy,
`
`was admitted into evidence for the sole purpose of showing that Mr. Hennessy received a letter.
`
`Chidester had no recollection nor a record indicating that he sent Brenda a similar letter.
`
`Chidester noted that he would have had Bogart's file in 1988 but he doesn't remember if he sent
`
`a letter to Brenda.
`
`11. Martin Hennessy, Director of Tennis at the Desert Inn for twenty-five years, testified that
`
`he knew and was a friend of Rick Bogart since the early 1980's. (approximately nine years).
`
`Hennessy invested with Bogart sometime between 1982 and 1984. Hennessy said that Bogart
`
`was a very likeable person, very bright and he trusted him. Bogart was the secretary/treasurer
`
`of the Nevada Tennis Association which is a voluntary, non-paid position. Hennessy visited
`
`Bogart's residence at the Jockey Club and he knew that Bogart had a computer and a printer but
`
`did not know what type. Hennessy declared that if anyone had asked him to testify regarding
`
`Bogart in 1988 or 1989 that he would have. However, Hennessy also testified that if he was
`
`interviewed in 1988 he would not have had anything bad to say about Bogart. Bogart
`
`disappeared in 1990 and at this point Hennessy found him in Reno. Hennessy knew Bogart did
`
`a lot of sports betting and Bogart was investing in oil futures for him. Hennessy knew nothing
`
`of Bogart being involved in drug dealing nor money laundering. Bogart had bragged to
`
`Hennessy that he grew up with John Gotti.
`
`12. Mary Doose-McIntyre (Doose) testified that she was friends with both Gracie and Brenda.
`
`Doose said that about a year before Gracie's murder in August of 1988, Brenda indicated that
`
`she had problems with her relationship with Gracie. Brenda said Rick Bogart wanted to marry
`
`her, he bought her expensive gifts and they wanted to get married but didn't know how to tell
`
`Gracie. Brenda had intentions of leaving Gracie and marrying Rick Bogart. Doose had
`
`25
`
`26
`
`27
`
`28
`
`-4-
`
`P-\WPDOCS\ORDR\FORDR\804\80408501. WPD
`
`r`K.I.n
`
`

`
`conversations with Gracie regarding Brenda's investments with Bogart and Gracie had invested
`
`a lot of money with Brenda. Although, Gracie never met Rick Bogart nor did she herself invest
`
`with him. In Doose's opinion the relationship between Gracie and Brenda in August of 1988
`
`1 2
`
`was "shaky."
`
`13.
`
`Brenda testified that she and her significant other, Gracie, were not having problems with
`
`their relationship before Gracie's death. She knew Bogart for a couple of years prior to Gracie's
`
`death. Additionally, Brenda testified that she did not invest money with Bogart nor did she ever
`
`date Bogart. Brenda also testified that she did not remember discussing Bogart with Mary Doose
`
`nor did she try to get Mrs. Doose to invest with Bogart.
`
`14.
`
`Katherine Fredi was a friend of Brenda and Gracie since 1980. Neither Brenda nor
`
`Gracie ever indicated to Mrs. Fredi that there was a problem with their relationship. Mrs. Fredi
`
`added that she also did not notice any appearance of problems with Brenda and Gracie's
`
`relationship.
`
`15.
`
`Defendant's trial attorney, Steven Dahl, testified. Dahl was the head of the murder unit
`
`for the Public Defender's Office from 1988 to 1995. Dahl and Defendant had a good working
`
`relationship and Dahl kept Defendant apprised of any investigation results. Dahl explained that
`
`Defendant's theory of the case from the beginning was that Brenda and Rick Bogart were
`
`involved in investment schemes and that the murder of Gracie had been done by Mr. Bogart.
`
`Defendant had told Dahl that Bogart lived at the Jockey Club, had no other job, and was like a
`
`tennis pro. Dahl verified Bogart's residence at the Jockey Club. Dahl verified Bogart's tennis
`
`affiliations with one of Dahl's co-workers who knew Bogart personally and through other
`
`sources but found nothing negative. Dahl testified that some two years after Defendant's trial
`
`he found out that Bogart was charged with several felonies involving embezzlement and
`
`investment fraud. Dahl then found out that Bogart's real name was Phillip Cohen. Bogart did
`
`testify at Defendant's trial but Dahl had nothing to impeach Bogart with. Dahl had ran a scope
`
`report on Bogart and the report was negative. Dahl also sent investigators to research Bogart and
`
`anyone that knew him. Dahl interviewed Brenda and she denied any investment with Bogart.
`
`All research came up negative and no one had anything bad to say about Bogart. Dahl contacted
`
`26
`
`27
`
`28
`
`-5-
`
`P \WPDOCS\ORDR\FORDR\804\80408501.WPD
`
`

`
`and talked with Mary Doose. Dahl knew that the ransom note was produced on a Tandy
`
`computer but didn't know if Bogart owned a computer or printer. Additionally, Dahl admitted
`
`that one of the State's key pieces of evidence was that the ransom note had handwritten notes
`
`on it and a handwriting expert claimed the handwriting was Defendant's.
`
`1 2 3 4
`
`16. Another of Defendant's theories was that he was laundering money for the mob and the
`
`mob was involved in Gracie's death. Defendant gave names to Dahl regarding individuals but
`
`they would not admit they were involved in money laundering. Thus, Dahl had no corroborating
`
`information that Defendant was involved in money laundering. Defendant told Dahl that he had
`
`full power of attorney for his parents but Dahl did not present a copy of the power of attorney
`
`to the jury. However, Dahl made two trips to South Carolina, Defendant's home, to investigate
`
`Defendant's financial situation and Defendant' s claims . On one trip, Defendant' s parents
`
`admitted Defendant had taken money from them without their permission. A copy of the written
`
`power of attorney was admitted in the evidentiary hearing.
`
`17.
`
`Dahl testified that after Defendant's trial he spoke directly with the members of the jury.
`
`The jury did not like the District Attorney's posture at trial and they resented him for it. Also,
`
`the jury had a lot of unanswered questions but focusing on Defendant, they had no problem
`
`returning the conviction.
`
`18.
`
`19.
`
`Defendant has failed to meet his burden of proof that his trial counsel was ineffective.
`
`The district court did not abuse its discretion by refusing to allow Defendant to enter
`
`testimony regarding an alleged break-up between Gracie Windholz and Brenda Schmitberger.
`
`20.
`
`The only new evidence adduced at the evidentiary hearing which was not before the jury
`
`at the time of trial was that Rick Bogart was actually Phillip Cohen and was perpetrating
`
`investment fraud. However, this was not known at the time of trial; defense counsel made
`
`reasonable efforts to investigate Rick Bogart prior to trial; and even if this information had been
`
`discovered and presented to the jury at the time of trial it is highly unlikely that the result of the
`
`trial would have been different considering the overwhelming evidence of Defendant's guilt.
`
`1.
`
`Claims of ineffective assistance of counsel must be reviewed under the "reasonably
`
`CONCLUSIONS OF LAW
`
`20
`
`21
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`-6-
`
`P:\WPDOCS\ORDR\FORDR\804\80408501. WPD
`
`

`
`effective assistance" standard and require a defendant to show counsel's assistance was
`
`"deficient" and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S.
`
`668, 687, 104 S.Ct. 2052, 2064 (1984); Bennett v. State, 111 Nev. 1099, 1108, 901 P.2d 676
`
`,
`
`682 (1995).
`
`2.
`
`The only new evidence introduced at the evidentiary hearing was that after Defendant was
`
`convicted and his appeal decided, it came to light that Rick Bogart was really "con-artist" Phillip
`
`Cohen. Over two years after Defendant's trial and conviction, Defendant learned that Rick
`
`Bogart was arrested for investment fraud. However, at the evidentiary hearing Defendant failed
`
`to show how this new evidence would have effected the trial verdict. The new evidence did not
`
`6 7 8
`
`show that Brenda committed perjury at Defendant's trial, that Brenda and Bogart had a romantic
`
`relationship, that Brenda and Bogart were involved in investment scams, or that anyone other
`
`than himself, committed the murder of Gracie Windholz.
`
`3.
`
`The information regarding Bogart's involvement in investment fraud was not known until
`
`14
`
`over two years after Defendant's conviction. There was no evidence presented that anyone knew
`
`of Bogart's activities at the time of Defendant's trial or that these activities could have
`
`reasonably been discovered. Additionally, there was no showing that if this information was
`
`found during Defendant's trial the result would have been different due to the overwhelming
`
`evidence presented against Defendant.
`
`4.
`
`Defendant's trial attorney, Steven Dahl, investigated Defendant's case thoroughly. Mr.
`
`Dahl had Bogart investigated and the investigation came up negative. Not one person had
`
`anything bad to say about Bogart at the time of Defendant's trial. Additionally, Mr. Dahl
`
`traveled to South Carolina, Defendant's home, twice to investigate Defendant's theories of the
`
`case. However, both extensive investigations uncovered nothing to corroborate Defendant's
`
`theories. On the contrary, Mr. Dahl uncovered evidence that affirmed the State's theory of the
`
`case.
`
`5.
`
`The State provided overwhelming evidence to the jury of Defendant's guilt. First, was
`
`the ransom note. The ransom note had two handwritten notes on it and a handwriting expert
`
`testified that after comparing examples of Defendant's handwriting, Defendant wrote the
`
`-7-
`
`P•\WPDOCS\QRDR\FORDR\804\80408501. WPD
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`notations on the ransom note. The paper used to type the ransom note matched the printer
`
`owned by Defendant. Additionally, after Gracie's murder, Defendant called his companion and
`
`relative Kerry Durr, and told him to get rid of his computer. Second, Terry Cook, a serologist,
`
`testified that the blood, found on Defendant's shoe was not fish blood as Defendant contended,
`
`it was not Defendant's blood and that it matched the blood type of Gracie Windholz who had
`
`a very distinctive blood type. Third, the murder weapon was found in Defendant's hotel room.
`
`The .25 caliber gun was smuggled to Las Vegas by Defendant when he wrapped it in tin foil and
`
`put it in his suitcase . Fourth, Defendant was in serious financial debt. Defendant owed over
`
`$200, 000 in credit card debt and the ransom note requested $200,000. Fifth, Defendant made
`
`feeble attempts after Gracie's murder to cover his tracks. The day after his arrest Defendant
`
`called Mary Doose and told her that he bought a gun in South Carolina and Kerry Durr mailed
`
`it to Gracie to give to Brenda. Defendant also called Kerry Durr and told him to tell the same
`
`1 2 3 4
`
`story.
`
`6.
`
`In light of the lack of compelling new evidence adduced at the evidentiary hearing and
`
`the strength of the evidence introduced against Defendant at trial, Defendant has not met the first
`
`prong of Strickland, requiring that trial counsel's failure to investigate Rick Bogart amounted
`
`to deficient performance. Strickland, supra. As such, Defendant has failed to overcome his
`
`burden to show ineffective assistance of his counsel. Strickland, supra.
`
`7.
`
`Defendant's argument that the district court abused its discretion in barring hearsay
`
`testimony regarding an alleged break-up between Gracie and Brenda is without merit.
`
`8.
`
`A prior inconsistent statement can be used not only to impeach a witness, but may also
`
`be used as substantive evidence and will not be considered hearsay. See generallv NRS 51.035
`
`(2)(a). However, "[t]he decision to admit or exclude evidence is within the sound discretion of
`
`the district court." Johnson v. State, 113 Nev. 772, 942 P.2d 167,-170 (1997) citin Greene v.
`
`State, 113 Nev. 157, 166, 931 P.2d 54, 60 (1997).
`
`9.
`
`At trial, there was testimony from Mary Doose and Defendant regarding an alleged
`
`relationship between Brenda and Bogart. Trial counsel had more than ample opportunity to
`
`cross examine Brenda and Bogart regarding prior inconsistent statements and make the jury fully
`
`24
`
`25
`
`26
`
`27
`
`28
`
`-8-
`
`P-\ W P DOCS\ORDR\FO RDR\804\8040850I . WPD
`
`,.544
`
`

`
`aware of any inconsistencies . Trial counsel did question both Brenda and Bogart regarding a
`
`romantic relationship and they both denied the accusation. Furthermore, the prior inconsistent
`
`statement alone would not have served to exculpate Defendant as ample other direct evidence
`
`was produced at the trial implicating Defendant as the murderer of Gracie Windholz.
`
`10.
`
`Defendant contended that Mary Doose's testimony regarding Gracie's investments should
`
`have been permitted to impeach Brenda. However, as the trial court ruled, Mary Doose's
`
`statement regarding Gracie would have been inadmissible hearsay. Mary Doose was testifying
`
`to what Gracie had told her not what Brenda had told her and that was clearly hearsay. See,
`
`Browne v. State, 113 Nev. 305, 933 P.2d 187 (1997). Mary Doose's testimony regarding
`
`Gracie' s investments would not serve to impeach Brenda. There was no evidence presented
`
`connecting Brenda to Gracie' s alleged investments . Mary Doose' s statement was inadmissible
`
`I 2
`
`7 8
`
`hearsay and was not proper impeachment testimony.
`
`11.
`
`Alternatively, Defendant contends that Mary Doose's testimony regarding Gracie's
`
`investments should have been permitted to establish Brenda's motive to have been involved with
`
`Gracie's murder. Defendant wished to illicit from Mary Doose statements made by the
`
`deceased, Gracie, to her regarding her investments with Bogart and her concerns with the
`
`investments.
`
`12.
`
`NRS 51.105(1) which permits into evidence a statement of the declarant's then existing
`
`state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design,
`
`mental feeling, pain or bodily health. The Hillmon doctrine` provides that:
`
`[W]hen the performance of a particular act by an individual is an
`issue in a case , his intention ( state of mind) to perform that act
`may be shown. From that intention, the trier of fact may draw the
`inference that the person carried out his intention and performed
`the act. Within this conceptual framework, hearsay evidence of
`statements by the person which tend to show his intention is
`deemed admissible under the state of mind exception.
`Lisle v. State, 113 Nev. 679, 691, 941 P.2d 459, 467 (1997) (citations omitted).
`
`13.
`
`Under NRS 51.105(1) Defendant may properly admit testimony from Bogart to show
`
`Bogart' s state of mind. Defendant may not illicit testimony regarding Gracie's state of mind to
`
`1
`
`Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909 (1892).
`
`24
`
`25
`
`26
`
`27
`
`28
`
`-9-
`
`P •\WPDOCS\O RDR\FO RDR\804\80408501. W PD
`
`;':x,) 4 5
`
`

`
`prove Bogart' s state of mind. Any admissible hearsay testimony regarding Bogart's intent or
`
`motive must be testimony that was from Bogart. Defendant was attempting to transfer Gracie's
`
`alleged intent regarding Bogart's investment scams to Bogart's motive to kill Gracie. Mary
`
`Doose cannot testify to Bogart's motive through the thoughts and feelings of another person such
`
`as Gracie. The record is devoid of any evidence showing that Bogart was aware of Gracie's
`
`alleged anger about his investment scams . Accordingly, the hearsay testimony is inadmissible
`
`hearsay.
`
`14.
`
`In order to demonstrate ineffective assistance of counsel, the defendant must show 1) that
`
`counsel's performance was deficient; and 2) that he was prejudiced by such deficiency.
`
`Strickland v. Washin on, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). As discussed
`
`previously, Defendant' s counsel was effective but even if counsel was somehow not effective,
`
`Defendant clearly did not meet the prejudice prong of Strickland. Even with the new "con-man"
`
`evidence regarding Rick Bogart a/k/a Phillip Cohen, it is not at all likely that the result of
`
`Defendant's trial would not have been different because of this new information due to the
`
`overwhelming evidence implicating Defendant as the murderer of Gracie Windholz.
`
`THEREFORE, IT IS HEREBY ORDERED that the Petition for Post-Conviction Relief
`
`ORDER
`
`shall be , and it is, hereby denied.
`
`DATED this
`
`day of January, 2001.
`
`DISTRICT JUDGE
`
`STEWART L. BELL
`DISTRICT ATTORNEY
`Nevada Bar #000477
`
`BY
`14. LEON SIMON
`Deputy District Attorney
`Nevada Bar #000411
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`-10-
`
`p;\WP DOCS\ORD R\!"ORDR\804\8040850 L WP D
`
`',-'54G