Randolph v. State

• Decision Date: 10 December 2020
• Docket Number: No. 73825,73825
• Citation: 477 P.3d 342
• Parties: Thomas William RANDOLPH, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

477 P.3d 342

Thomas William RANDOLPH, Appellant,

v.The STATE of Nevada, Respondent.

No. 73825

Supreme Court of Nevada.

FILED DECEMBER 10, 2020

Sandra L. Stewart, Mesquite, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and David L. Stanton and Charles W. Thoman, Chief Deputy District Attorneys, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, SILVER, J.:

A jury convicted appellant Thomas Randolph of conspiring with a hitman to have his sixth wife murdered during a staged burglary and then murdering the hitman. In this appeal, we consider whether the events surrounding the death of Randolph's second wife were admissible under NRS 48.045(2), which provides that evidence of other bad acts is inadmissible unless offered to prove something other than the defendant's criminal propensity. Because the danger of unfair prejudice substantially outweighed any probative value, we hold that the district court abused its discretion in admitting the prior-bad-act evidence. And, because the State did not meet its burden of proving the error was harmless, we reverse the judgment of conviction and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

On the evening of May 8, 2008, Randolph called 9-1-1 to report that an intruder shot his wife and that he shot and killed the intruder. Law enforcement responded and discovered the bodies of Sharon Randolph and Michael Miller. Sharon died of a single gunshot wound to the head. Miller sustained five gunshot wounds, two of them to the head.

According to Randolph, when he and Sharon returned home from a night out, Sharon exited the vehicle and entered the house while he pulled their vehicle into the garage. After lingering in the garage, he then entered the house to find Sharon lying face down in the hallway. Startled by unexpected movement, Randolph grabbed one of his handguns from a nearby room and encountered a masked intruder. Randolph scuffled with the intruder in the hallway before shooting him multiple times. The intruder collapsed in the garage, where Randolph fired two more shots into the intruder's head. Randolph recognized the intruder as Miller, a person whom he had befriended a few months before and with whom he had looked at jet skis mere hours before the home invasion.

The scene of the killings raised a number of questions about Randolph's version of events, and detectives began to suspect that Randolph was involved in Sharon's murder based on inconsistencies between his story and the physical evidence. Further stoking suspicions about Randolph's involvement, law enforcement uncovered evidence that Randolph took out multiple life insurance policies on Sharon before the killings and had an extensive, secretive relationship with Miller. For example, the two men often spoke in private and exchanged hundreds of phone calls in the months before the alleged burglary. Additionally, prosecutors learned that Randolph's second wife, Becky, died in Utah in 1986 from a single gunshot wound to the head. Although Becky's death was initially considered a suicide, Utah authorities ultimately charged Randolph with Becky's murder based largely on information obtained from Randolph's former friend Eric Tarantino. According to Tarantino, he and Randolph met while working together. They became friends, and Tarantino worked odd jobs for Randolph after he was laid off. The friendship changed when Randolph began asking generally whether Tarantino could hurt someone. Their discussions eventually focused on killing Randolph's then-wife Becky during different scenarios, such as a staged burglary of Randolph's home. Randolph indicated to Tarantino that he wanted Becky killed so he could collect the money from her life insurance policies.

During the Utah criminal proceedings, Randolph solicited an undercover police officer to "whack" Tarantino before Tarantino could testify against him at trial. To achieve that end, Randolph dispatched his then-girlfriend Wendy Moore to deliver payment to the purported hitman. After the exchange, Utah authorities charged Randolph for the incident, and he pleaded guilty to felony witness tampering. In 1989, a Utah jury acquitted Randolph on the murder charge. Randolph subsequently had all the records related to his prosecution for murder and conviction for witness tampering expunged in Utah.

In this case, the State charged Randolph with conspiracy to commit murder and two counts of murder with the use of a deadly weapon, also filing a notice of intent to seek the death penalty for both murders.¹ The State theorized that Randolph enlisted Miller to kill Sharon during a staged burglary in order to collect the proceeds from her life insurance policies, and after Miller shot and killed Sharon, Randolph shot and killed Miller. Before trial, the State filed a pretrial motion seeking to admit the Utah evidence to prove motive, intent, preparation, plan, knowledge, and identity. The district court held a Petrocelli² hearing where the State called a single witness—William McGuire, the prosecutor at Randolph's murder trial in Utah—to provide an offer of proof. Over Randolph's objection, the district court found the Utah evidence admissible in the Nevada trial. At trial, the State presented extensive testimony of the Utah events from McGuire, as well as from Utah Detective Scott Conley, Tarantino, and Moore. After deliberations, the jury convicted Randolph on all counts and sentenced him to death. This appeal followed.

DISCUSSION

The primary question on appeal is whether the district court abused its discretion in admitting prior-bad-act evidence of the Utah events at trial. Evidence of other crimes, wrongs, or acts is prohibited to prove a person's character or propensity to act in conformity with a character trait. NRS 48.045(2). However, such evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. The proponent of prior-bad-act evidence "must request a hearing and establish that: (1) the prior bad act is relevant to the crime charged and for a purpose other than proving the defendant's propensity, (2) the act is proven by clear and convincing evidence, and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Bigpond v. State , 128 Nev. 108, 117, 270 P.3d 1244, 1250 (2012). We review the admission of prior-bad-act evidence for an abuse of discretion. Newman v. State , 129 Nev. 222, 231, 298 P.3d 1171, 1178 (2013).

The State's pretrial offer of proof

We first consider the State's method of proving the prior bad acts by making an offer of proof. Generally, "[a]n offer of proof provides an evidentiary basis for a district court's decision." Santiago v. State , 644 N.W.2d 425, 442 (Minn. 2002). The district court must be satisfied that the offer will lead to the introduction of legally admissible evidence. "[A]n adequate offer of proof can be made without producing all the witnesses if the offer is sufficiently specific and there is nothing in the record to indicate the proponent's bad faith or inability to produce the proof." Robert P. Mosteller, ed., McCormick on Evidence § 51 (8th ed. 2020) (internal footnote omitted). NRS 47.080 contemplates "offers of proof in narrative or question and answer form." Thus, when the State seeks to admit prior-bad-act evidence, it can apprise the court of what the prior-bad-act evidence will be or present the evidence through witness testimony.

In this case, the State chose the latter method by calling McGuire to testify. Among Randolph's objections to McGuire's testimony, he argued that McGuire did not witness any of his alleged misconduct and could only offer hearsay. The State contended that offers of proof were necessarily based on hearsay. Over Randolph's objections, the district court allowed McGuire to testify.

We conclude that the district court erred in finding the State proved the prior bad acts by clear and convincing evidence based on McGuire's testimony alone. The record shows that while McGuire testified about investigating Becky's death and Randolph's attempts to have Tarantino killed, he had no firsthand knowledge about Randolph's attempts to recruit Tarantino to kill Becky or Randolph's ultimate conviction for witness tampering because he did not prosecute that case. The majority of McGuire's testimony consisted of explaining what Tarantino and other Utah authorities told him. His lack of firsthand knowledge about the actual bad acts the State sought to admit is problematic. See Lane v. Second Judicial Dist. Court , 104 Nev. 427, 446, 760 P.2d 1245, 1257 (1988) ("[T]o be competent to testify, a witness must have personal knowledge of the subject of his testimony."); see also Robert P. Mosteller, ed., supra, § 10 ("[A] person who has no knowledge of a fact except what another has told her does not satisfy the requirement of knowledge from observation for that fact."). Accordingly, the State's offer of proof proved very little.

Further, the jury in Becky's murder trial acquitted Randolph. This casts additional doubt on the district court's finding that the State proved the Utah acts by clear and convincing evidence. While "an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof," Dowling v. United States , 493 U.S. 342, 349, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), Randolph's acquittal certainly should have raised concerns for the district court about the quality of Tarantino's proposed testimony as relayed by McGuire. Because the State's only offer of proof was made through a witness with limited firsthand knowledge, we conclude the district court abused its discretion in finding that the prior bad acts were proven by clear and convincing evidence based on the State's offer...