Moore v. State
| Decision Date | 01 August 2012 |
| Docket Number | No. 55091.,55091. |
| Citation | 381 P.3d 643 (Table) |
| Parties | Randolph MOORE, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Attorney General/Carson City
Clark County District Attorney
This is an appeal from the denial of a post-conviction petition for a writ of habeas corpus in a death penalty case. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
Appellant Randolph Moore was convicted of murder with the use of a deadly weapon (two counts), conspiracy to commit burglary, conspiracy to commit robbery, conspiracy to commit murder, burglary, and robbery with the use of a deadly weapon in connection with the deaths of Carl and Colleen Gordon, the grandparents of Moore's codefendant Dale Flanagan. The jury sentenced Moore to death, and we affirmed his convictions and death sentence. Moore v. State, 104 Nev. 113, 754 P.2d 841 (1988)
. During the course of appeals and post-conviction proceedings, Moore had three penalty hearings. At the third penalty hearing in June 1995, the jury found the following circumstances aggravated each murder: (1) Moore knowingly created a great risk of death to more than one person, (2) the murders were committed during the perpetration of a robbery, (3) the murders were committed during the perpetration of a burglary, and (4) Moore committed the murders for pecuniary gain. Flanagan v. State (Flanagan IV), 112 Nev. 1409, 1416–17, 930 P.2d 691, 696 (1996). The jury found three mitigating circumstances—(1) Moore had no significant criminal history of prior criminal activity, (2) the youth of the defendant at the time of the crimes, and (3) “any other mitigating circumstances.” Id. at 1416, 930 P.2d at 696 (alteration omitted). After weighing the aggravating and mitigating evidence, the jury sentenced Moore to death for each murder, and this court affirmed those sentences. Id. at 1416, 1423–24, 930 P .2d at 696, 700.
Moore timely sought post-conviction relief. The district court granted relief in part by striking two felony aggravating circumstances based on McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004)
, vacating the death sentences, and ordering a new penalty hearing.1 Moore appealed and the State cross-appealed. We affirmed the denial of Moore's guilt-phase claims and the decision to strike the felony aggravating circumstances but remanded for the district court to enter detailed findings as to whether the jury's consideration of the invalid aggravating circumstances was harmless beyond a reasonable doubt. Moore v. State, Docket No. 46801 (). This court also advised the district court that if it concluded that a new penalty hearing was not warranted under McConnell. the district court then must resolve Moore's ineffective-assistance claims related to the third penalty hearing. Id. at 21 n. 40. On remand, the district court denied relief, concluding that the McConnell error was harmless. The district court also denied Moore's ineffective-assistance claims related to the third penalty hearing. This appeal followed.
Moore argues that the district court erred by (1) denying his claims of ineffective assistance of trial and appellate counsel, (2) denying him relief pursuant to McConnell. and (3) denying other claims identified below. After considering Moore's claims and reviewing the record, we conclude that he failed to establish that the district court erred by denying his post-conviction petition and therefore affirm the judgment.
Claims of ineffective assistance of trial and appellate counsel
Moore argues that the district court erred by denying his claims of ineffective assistance of trial and appellate counsel without conducting an evidentiary hearing. “A claim of ineffective assistance of counsel presents a mixed question of law and fact, subject to independent review.” Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508 (2001)
. We give deference, however, to a district court's purely factual findings. Lara v. State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004). A successful ineffective-assistance claim requires a showing (1) that counsel's performance was deficient (counsel's representation fell “below an objective standard of reasonableness”) and (2) prejudice (but for counsel's errors there is a reasonable probability that the result of the proceeding would have been different). Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984) ; Kirksev v. State, 112 Nev. 980, 987–88, 998, 923 P.2d 1102, 1107, 1114 (1996). Moore was entitled to an evidentiary hearing on his ineffective-assistance-of-counsel claims only if he “assert[ed] specific factual allegations that [were] not belied or repelled by the record and that, if true, would entitle him to relief.” Nika v. State, 124 Nev. 1272, 1300–01, 198 P.3d 839, 858 (2008). As explained below, we conclude that the district court did not err by denying Moore's claims.
Claims of ineffective assistance of trial counsel
Moore raises several claims of ineffective assistance of trial counsel at the third penalty hearing, related to the following matters: (1) jury selection issues, (2) severance, (3) sufficiency of the information, (4) motion in limine to preclude prosecutorial misconduct, (5) admission of evidence, (6) bribery of State witnesses, (7) admission of testimony of John Lucas, (8) prosecutorial misconduct, (9) mitigation, (10) jury instructions, (11) constitutionality of the death penalty, and (12) clemency. He further argues that the cumulative effect of trial counsel's deficiencies requires reversal of his death sentences.
Jury selection issues
Moore argues that his counsel were ineffective for a number of reasons related to jury selection, including that counsel should have challenged: (1) voir dire questions about religion, (2) removal of a veniremember, (3) retention of biased jurors, (4) juror misconduct, (5) inquiry into veniremembers' ability to equally consider all possible sentences, and (6) racial bias in the selection of the jury pool.
Moore first argues that trial counsel should have objected when the district court asked veniremembers about their religious affiliations and whether they regularly attended religious services. In the context of a capital prosecution, we have recognized that a juror's personal beliefs and convictions, including religious beliefs, are highly relevant in empaneling a jury. Bean v. State, 86 Nev. 80, 87–88, 465 P.2d 133, 138 (1970)
(), holding limited on other grounds by
Browning v. State, 124 Nev. 517, 530–31, 188 P.3d 60, 70 (2008). Nothing in the trial transcript suggests that the challenged inquiry was undertaken for an improper purpose and therefore counsel's omission was not deficient or prejudicial.
Second, Moore argues that counsel should have objected to the removal for cause of a veniremember based on his views on the death penalty. During voir dire, the veniremember stated that he did not believe in the death penalty. Although after further questioning he expressed that under some undefined theoretical circumstance he might be able to impose death, considering his comments as a whole, he was opposed to the death penalty as a matter of conscience and conveyed that his feelings about the death penalty would “substantially impair” his ability to carry out his juror duties. Because the record supports the trial court's decision to remove the juror for cause, see Weber v. State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005)
, counsel's omission was not objectively unreasonable.
Third, Moore argues that counsel should have challenged four veniremembers on various grounds, including (1) a juror's statement that child killers should be executed and that the defendants would not want him on the jury because “nobody wants to die,” (2) a juror's revelation that his wife was a former police officer and he would give more credence to a police officer's testimony, (3) a juror's statement that “the law should be carried out to the maximum,” and (4) a juror's refusal to consider a sentence that would allow parole. After reviewing the relevant voir dire, we conclude that even assuming counsel was deficient, Moore has not shown prejudice because the first three jurors were excused by peremptory challenges and his claim of prejudice related to the fourth juror is speculative.
Fourth, Moore argues that counsel should have requested further inquiry into an instance of potential juror misconduct where a veniremember informed the trial court that he knew that the case was a second retrial and had mentioned that to other veniremembers and he was aware of Moore's conduct in prison through his employment at the detention center. The veniremember was excused, but Moore complains that counsel should have questioned other veniremembers about the matter. However, the venire already was aware that the penalty hearing was a retrial, as that subject surfaced during voir dire, and there is no indication that the veniremember detailed to the others the bases for retrial. Therefore, we conclude that counsel's omission was not objectively unreasonable.
Fifth, Moore argues that counsel should have objected to erroneous instructions to the jurors and disqualifications of the jurors based upon whether they could equally consider the three possible sentencing options: death or life with or without parole. Our first pronouncement that equal consideration by the jury of three possible punishments in death penalty cases was not required came in Leonard v. State, 117 Nev. 53, 65, 17 P.3d 397, 405 (2001)
, which was decided six years after Moore's third penalty hearing. It also appears that the “equal consideration” inquiry was not uncommon at the time of the third penalty hearing. Given those circumstances, counsel's...
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