Flanagan v. State

• Decision Date: 30 April 1991
• Docket Number: 20483,Nos. 20383,s. 20383
• Citation: 810 P.2d 759,107 Nev. 243
• Parties: Dale Edward FLANAGAN, Appellant, v. The STATE of Nevada, Respondent. Randolph MOORE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 759

810 P.2d 759

107 Nev. 243

Dale Edward FLANAGAN, Appellant, v. The STATE of Nevada, Respondent.

Randolph MOORE, Appellant, v. The STATE of Nevada, Respondent.

Nos. 20383, 20483.

Supreme Court of Nevada.

April 30, 1991.

Lee Elizabeth McMahon, Las Vegas, for appellant Dale Edward flanagan.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Deputy Dist. Atty., and Thomas L. Leen, and Daniel Seaton, Deputy Dist. Attys., Clark County, for respondent.

Schieck & Derke, Las Vegas, for appellant Randolph Moore.

OPINION

YOUNG, Justice:

In 1985, appellants Dale Flanagan and Randy Moore were convicted of murdering Flanagan's grandparents. Both Flanagan and Moore were sentenced to death and separately appealed to this court. We affirmed their convictions but reversed the sentences of death based on cumulative prosecutorial misconduct. See Flanagan v. State, 104 Nev. 105, 754 P.2d 836 (1988) and Moore v. State, 104 Nev. 113, 754 P.2d 841 (1988). Following a joint retrial of the penalty phase in July 1989, Flanagan and Moore were again sentenced to die. Although separately briefed and argued on appeal, we have consolidated our decisions in these cases due to the common issues presented. NRAP 3(b).

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, 104 Nev. at 107, 754 P.2d at 837.

At the second penalty hearing, the State called eight witnesses. In addition, Flanagan gave a brief unsworn statement to the jury in which he acknowledged that he had been involved in occult activities. Moore also gave an unsworn statement to the jury in which he admitted practicing white witchcraft.

The jury imposed sentences of death. On the special verdict form, the jury checked two mitigating circumstances: (1) the defendants' lack of significant history of prior criminal activity, and (2) "any other mitigating circumstance." In addition, the jury found four aggravating circumstances: that the murders were committed: (1) by defendants who knowingly created a great risk of death to more than one person; (2) while the defendants were engaged in the commission or attempted commission of a burglary; (3) while the defendants were engaged in the commission or attempted commission of a robbery; and (4) for the purpose of receiving money or any other thing of monetary value. Following sentencing, these appeals were filed. ¹

Flanagan and Moore's Common Contentions

Appellants Flanagan and Moore first contend that the district court erred in admitting testimony regarding their involvement in satanic worship in 1982 when they were 17 years old. Appellants argue that the evidence concerning this activity was dubious and irrelevant. They further argue that, even if the evidence is considered relevant, the district court should have excluded it because any probative value was substantially outweighed by the danger of unfair prejudice, of confusion of the issues and of misleading the jury. See NRS 48.035(1). Appellants also assert that the prosecutor's argument regarding satanic worship inflamed the jury and diverted it from making its sentencing decision based on relevant evidence. Appellants contend that the admission of this evidence rendered the trial fundamentally unfair and the verdict arbitrary and capricious.

One of the State's witnesses, Thomas Akers, testified that he had seen Flanagan play with tarot cards and that Flanagan had told him he was "into" devil worship. Akers also said that Flanagan told him he had the power "to push them [the Gordons] up or down, whatever he wanted." He further testified that he, Akers, had drawn a picture of a wizard and named it "Dale." A second State's witness, Wayne Wittig, testified that at age 16 he had been part of a seven-member "coven" led by Flanagan and Moore. Wittig stated that Flanagan represented black magic and Moore represented white magic, which meant that Flanagan was more the physical part of the coven, while Moore was more the mind-over-matter part. He also testified about an initiation ritual involving use of a knife to draw blood and running the blade through a candle flame "to create a centralness."

Appellants contend that the evidence of their belonging to a coven in 1982 was irrelevant because there was no evidence or suggestion that this previous activity was a causal factor or otherwise related to the crimes committed in late 1984. In addition, appellants contend that the evidence was irrelevant because there was no evidence that the coven had a sinister purpose or was committed to evil. Moore also argues that the evidence was dubious and irrelevant because there was no evidence other than that he belonged to the coven. Relying on Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), appellants maintain that the evidence was irrelevant because it was not part of their individual characters and the particular circumstances of the crime.

We conclude that this evidence was both relevant and properly admitted by the court. Under NRS 175.552, during a penalty hearing "evidence may be presented concerning aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter which the court deems relevant to sentence, whether or not the evidence is ordinarily admissible." (Emphasis added.) We have held that NRS 175.552 is not limited to the nine aggravating circumstances outlined in NRS 200.033. See Allen v. State, 99 Nev. 485, 488, 665 P.2d 238, 240 (1983); see also, Biondi v. State, 101 Nev. 252, 257, 699 P.2d 1062, 1065 (1985). Accordingly, the district court did not err in admitting the testimony about satanic worship.

Appellants also assert that the district court erred by allowing the State to use a constitutionally protected activity to seek the death penalty. Appellants rely on Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), in which the United States Supreme Court reiterated its earlier decisions prohibiting aggravating circumstances based on constitutionally impermissible factors such as religion. Id. at 885, 103 S.Ct. at 2747. See, e.g., Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). Here, however, the jury found four aggravating circumstances, none of which rested upon or involved constitutionally protected activities. Even assuming that the testimony regarding satanic worship involved constitutionally protected activity, Zant does not concern such character evidence.

Flanagan and Moore further contend that the district court's allowance of testimony regarding the sentences of the other four co-defendants violated their Eighth Amendment rights to have the jury consider their individual characters and records and the circumstances of their particular crimes. See Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Appellants cite authority from several other jurisdictions in support of their argument that the prosecution should not have been allowed to introduce and argue this evidence. See, e.g., People v. Belmontes, 45 Cal.3d 744, 248 Cal.Rptr. 126, 755 P.2d 310 (1988).

At trial, the district court allowed testimony by one of the prosecutors from the original trial and penalty hearing. The prosecutor testified that co-defendant Johnny Ray Luckett had received four consecutive sentences of life without the possibility of parole, and that co-defendant Roy McDowell had received four consecutive sentences of life with the possibility of parole.

We conclude that the district court did not err in allowing the testimony about the sentences of the other co-defendants. The evidence was admissible under NRS 175.552 as "any other matter which the court deems relevant...." Furthermore, the jury was instructed that it was not bound by the previous sentences. We believe that it was proper and helpful for the jury to consider the punishments imposed on the co-defendants. See State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984).

Appellants next contend that Jury Instruction 15, which told the jury that "[a] verdict may never be influenced by sympathy, prejudice or public opinion" violated their Eighth Amendment rights because it undermined the jury's constitutionally mandated consideration of mitigating evidence.

We have upheld virtually identical instructions in several other cases. See Howard v. State, 102 Nev. 572, 729 P.2d 1341 (1986); Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985); Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985); Milligan v. State, 101 Nev. 627, 708 P.2d 289 (1985). In upholding a similar instruction in Nevius, we determined that the jury was fully advised "regarding the range of mitigating circumstances" it could consider. Nevius, 101 Nev. at 250, 699 P.2d at 1061.

As in Nevius, we hold that, because the penalty jury was properly instructed to consider any mitigating circumstances, the district court did not err in instructing the jury that it should not be influenced by sympathy, prejudice or public opinion. See Nevius, 101 Nev. at 251, 699 P.2d at 1061. Although appellants evidently urge this court to depart from our earlier decisions in Howard, Nevius, Biondi, and Milligan, we decline to do so.

Flanagan's Remaining Contention

Flanagan also contends that Jury Instruction 8 ² violated his Eighth Amendment rights because it precluded the jury from considering and giving effect to relevant mitigating evidence. Relying on several United States Supreme Court decisions, Flanagan argues that, although he was permitted to introduce...