Tabish v. State, No. 36873.

Docket NºNo. 36873.
Citation119 Nev. 293, 72 P.3d 584
Case DateJuly 14, 2003
CourtSupreme Court of Nevada

72 P.3d 584
119 Nev. 293

Richard Bennett TABISH and Sandra Renee Murphy, Appellants,
v.
The STATE of Nevada, Respondent

No. 36873.

Supreme Court of Nevada.

July 14, 2003.


72 P.3d 586
William B. Terry, Las Vegas, for Appellant Tabish

Herbert Sachs, Las Vegas; Dershowitz, Eiger & Adelson, PC, and Alan M. Dershowitz and Victoria B. Eiger, New York, New York, for Appellant Murphy.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland and David T. Wall, Chief Deputy District Attorneys, Clark County, for Respondent.

Before the Court En Banc.

OPINION

ROSE, J.:

The State charged appellants Richard Tabish and Sandra Murphy by information with numerous crimes relating to three separate incidents: (1) the alleged robbery and murder by suffocation and/or poisoning of Lonnie Theodore "Ted" Binion at Binion's home in Las Vegas, Nevada, on September 17, 1998 (the "Binion counts"); (2) the removal of a large quantity of silver belonging to Binion from an underground vault located in a desert area near Pahrump, Nevada (the "silver counts"); and (3) the alleged July 1998 kidnapping, beating, and extortion of Leo Casey, who along with Tabish had a financial interest in a sand and gravel pit in Jean, Nevada (the "Casey counts").

Following a lengthy jury trial, Tabish and Murphy were both convicted of three Binion counts: first-degree murder; conspiracy to commit murder and/or robbery; and robbery relating to Binion's currency, coin collections, silver coins, and/or silver bars located at his Las Vegas residence. The jury also convicted both appellants of three silver counts: conspiracy to commit burglary and/or grand larceny; burglary; and grand larceny of the silver stored in the Pahrump underground vault. Tabish, but not Murphy, was convicted of four Casey counts: conspiracy to commit extortion; false imprisonment with the use of a deadly weapon; assault with a deadly weapon; and extortion with the use of a deadly weapon.1

The district court sentenced Murphy to serve a term of life in the Nevada State Prison with the possibility of parole after 20 years for murder, a consecutive term of 2 to 10 years for burglary, and four other concurrent terms ranging from 1 year in the county jail to a potential maximum prison term of 15 years.

The district court sentenced Tabish to serve two consecutive terms of 18 to 120 months in the Nevada State Prison for the extortion of Casey with the use of a deadly weapon; a consecutive term of life in the Nevada State Prison with the possibility of parole after 20 years for Binion's murder; a fourth consecutive term of 24 to 120 months for burglary of the underground vault, and concurrent terms ranging from 1 year in the county jail to potential maximum prison terms of 15 years for the convictions on the remaining counts.

Appellants assign numerous errors on appeal, including that: (1) improper and prejudicial joinder of their trials and the charges against them deprived them of a fair trial; (2) testimony regarding an alleged statement Binion made to his attorney prior to his death was improperly admitted at trial; (3) the State did not prove criminal agency; (4) the State's allegations in the charging document of aiding and abetting were unconstitutionally vague; and (5) juror misconduct deprived appellants of a fair trial. We conclude that the district court's refusal to sever the Casey counts from the remaining charges in the case and to give a crucial limiting instruction warrant reversal. We reject appellants' claim that the State failed to prove criminal agency.2 In light of our determination that reversal is warranted for the reasons stated, we further conclude it is unnecessary to resolve

72 P.3d 587
the issues relating to the aiding and abetting charges alleged in the information and jury misconduct. Finally, we conclude that appellants' remaining assignments of error are without merit.3

FACTS

Binion was found dead in his home in Las Vegas on September 17, 1998. At appellants' trial, Binion's drug supplier Peter Sheridan testified that he had sold Binion a large quantity of black tar heroin the day before his death. Heroin-smoking paraphernalia and traces of the drug were found in a bathroom near Binion's body. Toxicology reports obtained in connection with the autopsy that followed revealed the presence of heroin, Xanax, and Valium in Binion's blood.

Binion's live-in girlfriend, appellant Sandra Murphy, found Binion's body. An ambulance and police officers were summoned to the house, and paramedics unsuccessfully attempted to revive Binion. Police personnel then took pictures of the body and surrounding area, but they did not seal the area or otherwise preserve it as a crime scene. Their assumption at the time was that Binion died from a drug overdose, and no foul play was suspected. Murphy, described as hysterical, was taken to Valley Hospital.

The Chief Medical Examiner for Clark County, Dr. Lary Simms, performed the autopsy on Binion's body the following day. Dr. Simms noted the presence of various marks on Binion's body and took photographs of them. He concluded that Binion's death was caused by an overdose, but could not determine whether the death was suicide or accidental.

Several months before his death, Binion lost his gaming license to operate the family's business, the Horseshoe Casino. Thereafter, he removed from the Horseshoe his large personal collection of silver coins and bars worth approximately $8 million. In the summer of 1998, Binion employed appellant Richard Tabish to build an underground vault for the silver on a vacant parcel of land Binion owned in Pahrump near his family's ranch. In late August or early September 1998, Binion alerted the local Nye County Sheriff's Office that the silver had been moved to the underground vault and asked them to keep an eye on the area. Tom Standish, one of Binion's lawyers, testified at trial that he was present when Binion told Tabish that if Binion died, Tabish should retrieve the silver from the vault so that greedy Binion family members would not try to keep the silver from Binion's daughter, Bonnie.

Murphy and Tabish met through Binion. They became friends and then allegedly became lovers. On the night of September 18, 1998, Tabish telephoned the Nye County Sheriff and told him he was coming to Pahrump to dig up and remove the silver in the vault. Tabish explained that Binion had requested him to retrieve the silver in the event of Binion's death. But after Tabish and two other men, Dave Mattsen and Mike Milot, had loaded the silver into their trucks, they were stopped by Nye County Sheriff's officers. They were detained for a few hours, arrested, and then released on bail.

Police returned to Binion's house to gather more evidence about four weeks after Binion's death. During that four-week period, the alleged crime scene had not been secured and various people had access to the house and the den where Binion's body was found. A comparison at trial of police photographs from the date of Binion's death and from the second police investigation a month later clearly showed that objects had been moved. Paul Dougherty, an expert in law enforcement procedures and crime scene reconstruction, testified for the defense that the police had been irresponsible and unprofessional in gathering evidence at the house and in failing to secure it as a crime scene.

About a week after Binion's death, Binion family members hired a private investigator, retired homicide detective Tom Dillard, to investigate Binion's death. Dillard conducted numerous interviews and consulted experts in his investigation. Approximately six months after Binion's death, Dr. Simms, the

72 P.3d 588
medical examiner who had performed the autopsy, examined Dillard's materials and this time concluded that Binion's death was a homicide. The Clark County District Attorney's Office subsequently charged Tabish and Murphy, alleging they had robbed and murdered Binion at his house and had then stolen the silver from the underground vault

Appellants' trial lasted six weeks and included 115 witnesses. The witnesses consisted in substantial part of numerous medical experts, many of them physicians hired by each side to analyze the cause and manner of Binion's death. Except for Dr. Michael Baden, all of the doctors, including Dr. Simms, agreed that Binion's death was caused by an overdose of heroin, Xanax, and Valium.4 These witnesses disagreed somewhat over which of the drugs were present in Binion's body in lethal amounts. Nevertheless, whether they testified for the State or the defense, they agreed that the drugs had killed Binion, probably working together in a synergistic fashion to make them more toxic together than each drug would have been by itself.

In contrast, Dr. Baden, a physician and expert witness for the prosecution, testified that Binion did not die from a drug overdose, but had instead been suffocated by one or more persons. Although Dr. Baden did not personally examine Binion's body, based on his extensive experience as a medical examiner and trial consultant, he concluded that certain marks on Binion's face, chest, and wrists demonstrated that Binion's hands had been restrained, and that someone had covered his nose and mouth and applied pressure to Binion's chest, perhaps with a knee, to hasten his death. Other doctors testifying for each side related innocent explanations for the marks on Binion's body, including that Binion may have bumped into things while under the influence of drugs, that a paramedic had rubbed Binion's sternum to make sure he was dead, and that Binion suffered from dermatitis.

Binion's estate lawyer, James Brown, testified at trial that Binion had called Brown's office the day before his death and had asked Brown to change the terms of his will. Brown testified that Binion had said to him, "Take Sandy [Murphy] out of the will if she doesn't kill me...

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45 practice notes
  • Rimer v. State, No. 58711.
    • United States
    • Nevada Supreme Court of Nevada
    • June 11, 2015
    ...and reverse only if “the error had a substantial and injurious effect or influence in determining the jury's verdict.” Tabish v. State, 119 Nev. 293, 302, 72 P.3d 584, 590 (2003) (internal quotations omitted); see also United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 ......
  • Means v. State, No. 40898.
    • United States
    • Nevada Supreme Court of Nevada
    • December 29, 2004
    ...470 (1997), limited on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n. 9, 968 P.2d 296, 315 n. 9 (1998). 5. Tabish v. State, 119 Nev. 293, 308 n. 33, 72 P.3d 584, 594 n. 33 6. Collman v. State, 116 Nev. 687, 702, 7 P.3d 426, 436 (2000). 7. NRS 50.125(1)(c)-(d). 8. NRS 50.125(1)(......
  • Farmer v. State, No. 65935
    • United States
    • Nevada Supreme Court of Nevada
    • November 16, 2017
    ...494 (1995). Features that this court has deemed relevant to this analysis include (1) degree of similarity of offenses, Tabish v. State, 119 Nev. 293, 303, 72 P.3d 584, 591 (2003) ; (2) degree of similarity of victims, id. at 303, 72 P.3d at 590 ; (3) temporal proximity, Mitchell, 105 Nev. ......
  • Weber v. State, No. 41525.
    • United States
    • Nevada Supreme Court of Nevada
    • September 15, 2005
    ...PARRAGUIRRE, JJ., concur. --------------- Notes: 1. Floyd v. State, 118 Nev. 156, 164, 42 P.3d 249, 255 (2002); see also Tabish v. State, 119 Nev. 293, 302, 72 P.3d 584, 589-90 2. Tabish, 119 Nev. at 302, 72 P.3d at 590. 3. See Floyd, 118 Nev. at 164, 42 P.3d at 255; see also NRS 174.165(1)......
  • Request a trial to view additional results
45 cases
  • Rimer v. State, No. 58711.
    • United States
    • Nevada Supreme Court of Nevada
    • June 11, 2015
    ...and reverse only if “the error had a substantial and injurious effect or influence in determining the jury's verdict.” Tabish v. State, 119 Nev. 293, 302, 72 P.3d 584, 590 (2003) (internal quotations omitted); see also United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 ......
  • Means v. State, No. 40898.
    • United States
    • Nevada Supreme Court of Nevada
    • December 29, 2004
    ...470 (1997), limited on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n. 9, 968 P.2d 296, 315 n. 9 (1998). 5. Tabish v. State, 119 Nev. 293, 308 n. 33, 72 P.3d 584, 594 n. 33 6. Collman v. State, 116 Nev. 687, 702, 7 P.3d 426, 436 (2000). 7. NRS 50.125(1)(c)-(d). 8. NRS 50.125(1)(......
  • Farmer v. State, No. 65935
    • United States
    • Nevada Supreme Court of Nevada
    • November 16, 2017
    ...494 (1995). Features that this court has deemed relevant to this analysis include (1) degree of similarity of offenses, Tabish v. State, 119 Nev. 293, 303, 72 P.3d 584, 591 (2003) ; (2) degree of similarity of victims, id. at 303, 72 P.3d at 590 ; (3) temporal proximity, Mitchell, 105 Nev. ......
  • Weber v. State, No. 41525.
    • United States
    • Nevada Supreme Court of Nevada
    • September 15, 2005
    ...PARRAGUIRRE, JJ., concur. --------------- Notes: 1. Floyd v. State, 118 Nev. 156, 164, 42 P.3d 249, 255 (2002); see also Tabish v. State, 119 Nev. 293, 302, 72 P.3d 584, 589-90 2. Tabish, 119 Nev. at 302, 72 P.3d at 590. 3. See Floyd, 118 Nev. at 164, 42 P.3d at 255; see also NRS 174.165(1)......
  • Request a trial to view additional results

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