Floyd v. State

• Decision Date: 13 March 2002
• Docket Number: No. 36752.,36752.
• Citation: 118 Nev. 156,42 P.3d 249
• Parties: Zane Michael FLOYD, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

42 P.3d 249

118 Nev. 156

Zane Michael FLOYD, Appellant, v. The STATE of Nevada, Respondent.

No. 36752.

Supreme Court of Nevada.

March 13, 2002.

Rehearing Denied May 7, 2002.

Marcus D. Cooper, Public Defender, Curtis S. Brown, Chief Deputy Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Lynn M. Robinson, Chief Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.

OPINION

PER CURIAM.

Early in the morning on June 3, 1999, appellant Zane Michael Floyd held a woman against her will at his apartment in Las Vegas and sexually assaulted her. He then took his shotgun, walked to a nearby Albertson's supermarket, and shot five employees, killing four of them. Floyd does not contend that the State failed to prove that he committed the crimes he was convicted of, but he asks that his conviction be reversed, arguing that he was improperly denied a change of venue. He also argues, among other things, that the charges of kidnapping and sexual assault were improperly joined at trial with the burglary, attempted murder, and murder charges; that the State was improperly allowed to discover and use psychological evidence obtained by his own expert; and that the prosecutor committed misconduct during the guilt and penalty phases of the trial.

We conclude that these claims largely lack merit and none warrant relief. We therefore affirm his conviction and sentence.

FACTS

Early in the morning on June 3, 1999, Floyd telephoned an "outcall" service and asked that a young woman be dispatched to his apartment. As a result, a twenty-year-old woman came to Floyd's apartment around 3:30 a.m. As soon as she arrived, Floyd threatened her with a shotgun and forced her to engage in vaginal intercourse, anal intercourse, digital penetration, and fellatio. At one point he ejected a live shell from the gun, showed it to the woman, and said that her name was on it. Eventually Floyd put on Marine Corps camouflage clothing and said that he was going to go out and kill the first people that he saw. He told the woman that he had left his smaller gun in a friend's vehicle or he could have shot her. Eventually he told her she had 60 seconds to run or be killed. The woman ran from the apartment, and around 5:00 a.m. Floyd took his shotgun and began to walk to an Albertson's supermarket which was about fifteen minutes by foot from his apartment.

Floyd arrived at the supermarket at about 5:15 a.m. The store's security videotape showed that immediately after entering the store, he shot Thomas Michael Darnell in the back, killing him. After that, he shot and killed two more people, Carlos Chuck Leos and Dennis Troy Sargeant. Floyd then encountered Zachary T. Emenegger, who attempted to flee. Floyd chased him and shot him twice. Floyd then leaned over him and said, "Yeah, you're dead," but Emenegger survived. Floyd then went to the rear of the store where he shot Lucille Alice Tarantino in the head and killed her.

As Floyd walked out the front of the store, Las Vegas Metropolitan Police Department (LVMPD) officers were waiting for him. He went back in the store for a few seconds and then came out again, pointing the shotgun at his own head. After a police officer spoke with him for several minutes, Floyd put the gun down, was taken into custody, and admitted to officers that he had shot the people in the store.

The jury found Floyd guilty of four counts of first-degree murder with use of a deadly weapon, one count of attempted murder with use of a deadly weapon, one count of burglary while in possession of a firearm, one count of first-degree kidnapping with use of a deadly weapon, and four counts of sexual assault with use of a deadly weapon.

The jury found the same three aggravating circumstances in regard to each of the murders: the murder was committed by a person who knowingly created a great risk of death to more than one person by means which would normally be hazardous to the lives of more than one person; the murder was committed at random and without apparent motive; and the defendant had, in the immediate proceeding, been convicted of more than one murder. For each murder, the jury imposed a death sentence, finding that the aggravating circumstances outweighed any mitigating circumstances. For the other seven offenses, the district court imposed the maximum terms in prison, to be served consecutively. The court also ordered restitution totaling more than $180,000.00.

DISCUSSION

1. Severance of the charges

Before trial, Floyd moved unsuccessfully to sever the counts relating to the events at his apartment from those relating to the events at the supermarket. Floyd contends that two independent episodes were involved and therefore joinder of the charges was improper and prejudiced him. He quotes the Supreme Court of California:

When a trial court considering a defendant's motion for severance of unrelated counts has determined that the evidence of the joined offenses is not "cross-admissible," it must then assess the relative strength of the evidence as to each group of severable counts and weigh the potential impact of the jury's consideration of "other crimes" evidence. I.e., the court must assess the likelihood that a jury not otherwise convinced beyond a reasonable doubt of the defendant's guilt of one or more of the charged offenses might permit the knowledge of the defendant's other criminal activity to tip the balance and convict him. If the court finds a likelihood that this may occur, severance should be granted.¹

This appears to be a sound statement of law, but it is not applicable here. The California court was considering the joinder of "unrelated counts." We conclude that the counts here were related and that the evidence of each set of crimes was relevant and admissible to prove the other.

NRS 173.115 provides that multiple offenses may be charged in the same information if the offenses charged are based either "on the same act or transaction" or "on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Also, if "evidence of one charge would be cross-admissible in evidence at a separate trial on another charge, then both charges may be tried together and need not be severed."² Here, joinder was proper because the acts charged were at the very least "connected together." The crimes at the supermarket began only about fifteen minutes after the crimes at the apartment ended, and Floyd used the same shotgun in committing both sets of crimes. Moreover, his actions and statements in committing the crimes at his apartment were particularly relevant to the question of premeditation and deliberation regarding the murders at the supermarket. Likewise, Floyd's actions and demeanor and possession of the shotgun at the supermarket corroborated the testimony of the sexual assault victim and would have been relevant, at a separate trial, to prove more than just Floyd's character. Thus, the evidence of the two sets of crimes was cross-admissible.³

Even if joinder is permissible under NRS 173.115, a trial court should sever the offenses if the joinder is "unfairly prejudicial."⁴ NRS 174.165(1) provides that if a defendant is prejudiced by joinder of offenses, the district court may order separate trials of counts "or provide whatever other relief justice requires." Floyd quotes the Montana Supreme Court regarding the types of prejudice that can result from joinder of charges:

The first kind of prejudice results when the jury considers a person facing multiple charges to be a bad man and tends to accumulate evidence against him until it finds him guilty of something. The second type of prejudice manifests itself when proof of guilt on the first count in an information is used to convict the defendant of a second count even though the proof would be inadmissible at a separate trial on the second count. The third kind of prejudice occurs when the defendant wishes to testify on his own behalf on one charge but not on another.⁵

The decision to sever is within the discretion of the district court, and an appellant has the "heavy burden" of showing that the court abused its discretion.⁶ To establish that joinder was prejudicial "requires more than a mere showing that severance might have made acquittal more likely."⁷ We conclude that Floyd has not shown that he was unfairly prejudiced by joinder of charges. The evidence of the burglary, murders, and attempted murder was overwhelming. The evidence of the kidnapping and sexual assaults was substantial and uncontradicted. He has not shown that the jury improperly accumulated evidence against him, that it used the proof of one count improperly to convict him of another count, or that the joinder prevented him from testifying on any charges. Thus the district court did not err in denying Floyd's motion to sever the charges.

2. Pretrial coverage of the crimes and change of venue

The district court denied Floyd's motion for a change of venue. He claims that this was error because jurors were biased by the extensive and prominent coverage of his case by the print and broadcast media in Las Vegas. The State does not dispute that the media coverage of the case was massive. It simply points out that Floyd presents no evidence that this coverage resulted in bias on the part of any juror.

NRS 174.455(1) provides that a criminal action "may be removed from the court in which it is pending, on application of the defendant or state, on the ground that a fair and impartial trial cannot be had in the county where the indictment, information or complaint is pending." Whether to change venue is within the sound discretion of the district court and will not be disturbed absent a clear abuse of discretion.⁸ A defendant seeking to change venue must not only present evidence of inflammatory...