Flanagan v. State
| Decision Date | 20 December 1996 |
| Docket Number | No. 27320,27320 |
| Citation | 930 P.2d 691,112 Nev. 1409 |
| Parties | Dale Edward FLANAGAN and Randolph Moore, Appellants, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy Public Defender, Clark County, for Appellant Flanagan.
David M. Schieck, Las Vegas, for Appellant Moore.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
In 1984, appellants Dale Flanagan and Randolph Moore murdered Flanagan's grandparents. Flanagan and Moore were convicted of the murders and sentenced to death. This court affirmed appellants' convictions on appeal, but remanded for a new penalty hearing due to prosecutorial misconduct. This court affirmed the death sentences appellants received after the second penalty hearing. However, the United States Supreme Court vacated that decision and remanded for reconsideration due to evidence presented at the second hearing regarding appellants' occult beliefs and activities. Upon remand, this court held that use of such evidence had been unconstitutional, and we remanded for a third penalty hearing. After the third hearing, appellants again received death sentences.
Flanagan and Moore appealed. They argue that their convictions should be reversed because the same type of constitutional error occurred at the guilt phase of their trial as occurred at the second penalty hearing. They also seek reversal of their sentences on a number of grounds.
This case involves the shooting deaths of Flanagan's grandparents, Carl and Colleen Gordon. The Gordons were found dead on November 6, 1984, Carl having been shot seven times in the back and chest and Colleen having been shot three times in the head. On direct appeal, we found overwhelming evidence that Flanagan, Moore and four other co-defendants killed the Gordons so that Flanagan could obtain insurance proceeds and an inheritance under his grandparents' will.
Flanagan v. State, 107 Nev. 243, 245, 810 P.2d 759, 760 (1991) (Flanagan II ), vacated, 503 U.S. 930, 931, 112 S.Ct. 1463, 1464, 117 L.Ed.2d 609, 610 (1992).
Appellants were tried in September and October 1985 along with two other co-defendants, Johnny Ray Luckett and Roy McDowell. (Two others charged in the matter pled guilty.) Luckett's lawyer called Wayne Wittig to testify in Luckett's defense. The district court allowed in the following testimony over objection by Moore's and Flanagan's lawyers:
Q Now, was there a point in time in your relationship with Dale [Flanagan] and Randy [Moore] that the three of you along with other people participated in what is known as a coven?
A Yes, that is correct.
Q Would you please tell us what a coven is?
....
A A coven basically is gathering of people to use, you might say, its basis of Satan to get the most out of life, so to speak. Being able to have help when you need it. You know, somebody to kind of call upon if something should ever arise.
....
Q Now, is this practice divided into at least two categories, one of which is black magic and the other of which is white magic?
A Well, I can't say for all, but I can say for the one I was involved in, there was two different kinds, yes ....
Q And would you tell us, at least insofar as your coven at that time was concerned, what black magic was, what was the purpose of this?
A Well, black magic basically was used to if somebody was in danger in any way, you could more or less put a hex on them and they would feel pain that they wouldn't normally feel.
Or psychological effects, you know, more or less just "Ow, my arm hurts," continuous arm hurt. Or just all of a sudden you start feeling weird for some reason and you can't explain it.
Q What was white magic?
A White magic was the ability to manipulate people to do things they wouldn't normally otherwise do. Say you are walking down a corridor and for some reason you never walk through the door on the right. Well, this could give you the ability to walk through that door.
....
Q Was this just a lighthearted party atmosphere or was it more serious for the people that were involved in it?
A In some instances it was serious. There were a couple of occasions where a fellow friend would have some problems, say, at school or something with somebody else.
And it was more like just, you know, I am going to get you sort of thing and just kind of use it for defense more or less.
Q What was the role of Dale Flanagan in the coven activities which you personally participated in?
A Dale was basically--I don't know if the correct word is wizard but he was basically the second in command as far as the coven went. He had actually the first--most power, but there was one power more stronger than his.
Q What type of magic did he practice or engage in?
A Black magic.
Q And what was the role of Randy Moore?
A He was, like I said, basically first in command. He had the white magic which was the power to manipulate people.
Q Would it be fair to say he was the leader of the group?
A Yes.
Luckett introduced this evidence to support a defense theory that any involvement he had with the crimes was due to fear of Flanagan and Moore.
Moore's lawyer cross-examined Wittig as follows:
Q Now, you testified about covens and covens which you attended and you told us that Dale and Randy were at these covens. About how many did you attend? Your best recollection. I am not asking for an exact number.
A Probably somewhere between zero and 20 or between, say, one and 20, excuse me.
Q And during these covens that you attended anywhere from one to 20, was there conversation as among the people in attendance?
A Pertaining to?
Q Was there conversation, yes or no?
A Yes.
Q Was it in the nature of social conversation?
A Sometimes.
Q And did any of the people in attendance at these covens do anything that you would consider to be antisocial?
A No.
Q Didn't burn or kill any cats?
A No.
Q Didn't set any places afire?
A No.
Q The prior sessions, tell us what went on these sessions you did attend, one to 20?
A More or less psychological. Linked thought, things like that.
Q Okay. But nothing antisocial?
A We didn't run around going "Satan, rah, rah, rah," things like that.
Q You didn't go skinning cats, burning lawns or firing crosses or carving things into?
A No, sir.
Q Whatever strange things one would imagine might be done in this sort of thing?
A No. They were peaceful.
Q Peaceful, social?
A Yes.
Q There was communication among the people present?
A Yes.
Q Nobody was forced to attend?
A No.
Q And nothing was antisocial about those meetings at all?
A No.
One of the two prosecutors cross-examined Wittig regarding a knife which was found near the murder scene and elicited information regarding coven initiations which involved passing a knife blade through a flame.
No other evidence of occult activities was presented. The prosecutor who gave the State's initial closing argument made the following remarks:
[The four defendants] had as their friends gang members. These people were school dropouts. They were drug users. They were devil worshippers.
And on November the 5th, 1984, as Carl and Colleen Gordon were indeed going to bed, these four and others were hatching a diabolical plot, a diabolical plot to kill two good human beings....
....
They didn't ask their grandson Dale to come to them and kill them so they could give him and his devil-worshipping buddies a piece of their estate a little more quickly.
....
... [Flanagan] was going to share [what he thought he would gain from the murders] with all of his friends. Probably divvy it up in the middle of a coven proceeding or something.
That's the agreement. That's the conspiracy. That's the dark and evil plan that was created over a period of time and put into action and finalized on that fateful night.
....
[Flanagan and Moore] were, in fact, the main co-conspirators. They were the talkers, they were the planners. They led this thing. They didn't only lead the coven, they let their black and their white magic spill over into this conspiracy....
The prosecutor made further references to devil worship in attacking Luckett's credibility. In the State's final closing argument, a second prosecutor stated:
The jury found Flanagan and Moore guilty of seven crimes: conspiracy to commit burglary, conspiracy to commit robbery, conspiracy to commit murder, burglary, robbery, and two counts of first degree murder with use of a deadly weapon. The jury also returned sentences of death for both men.
Flanagan and Moore appealed. This court acknowledged that prosecutorial misconduct had occurred during the guilt phase of the trial, but concluded that "the prosecutor's actions were not so prejudicial as to mandate reversal" in light of the overwhelming evidence of guilt. Flanagan v. State, 104 Nev. 105, 107, 754 P.2d 836, 837 (1988) (Flanagan I ). However, extensive misconduct rendered Flanagan's sentencing unfair, and this court remanded for a new penalty hearing. Id. at 112, 754 P.2d at 840. Moore also received a new penalty hearing for the same reasons. Moore v. State, 104 Nev. 113, 114, 754 P.2d 841, 841 (1988).
Upon remand, appellants again received death sentences. They appealed, and this court upheld the sentences. Flanagan II, 107 Nev. at 250, 810 P.2d at 763. The United States Supreme Court vacated this court's decision and remanded for reconsideration in light of Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). Flanagan v. State, 109 Nev. 50, 52, 846 P.2d 1053, 1055 (1993) (Flanagan III ) (plurality In May 1995, Moore and Flanagan filed...
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