Flanagan v. State

Steffen, J.,

dissenting:

I respectfully disagree with the majority’s analysis of the dictates of Dawson v. Delaware, 112 S.Ct. 1093 (1992), and its application to these consolidated cases. I therefore dissent.

The Dawson court framed the question presented on appeal as “whether the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding.” Id. at 1095 . The Court appropriately answered the question in the affirmative.

It is a fundamental tenet of both our criminal and civil justice systems that irrelevant evidence is inadmissible at trial for any purpose. In Dawson , the Court understandably found the stipulated evidence of Dawson’s membership in the Aryan Brotherhood to be so narrow and equivocal as to be irrelevant. Indeed, the Court noted that it would have been reviewing a much different case if the prosecutor had introduced credible evidence that the Delaware organization of the Aryan Brotherhood was “a white racist prison gang that is associated with drugs and violent escape attempts at prisons, and that advocates the murder of fellow inmates.” Id. at 1097 .

It is of some importance to note that when Dawson, a white male, escaped, he killed a white female rather than a non-white fellow inmate. The inference to be drawn from the Court’s language thus appears to be that if the prosecutor had demonstrated that the Delaware unit of the Aryan Brotherhood was a white racist prison gang associated with drugs, violent escape, and the murdering of fellow inmates, the evidence could have been properly considered by the jury notwithstanding the fact that the victim was a white female murdered in her home. Moreover, the Court observed that the prosecutor acknowledged that substantial differences exist among the various cells of the Aryan Brotherhood where they do not see “eye to eye” or “share a union.” Id. at 1098 .

It seems clear to me that although our society as a whole decries racial hatred and bigotry, such racial attitudes are intransigent with many people who otherwise remain productive, law-abiding citizens. Racial bigotry and hatred, without more, would hardly qualify as relevant factors in considering the death-worthiness of a capital defendant.

*59 The instant cases involve evidence that is relevant and free from the aura of ambiguity and speculation inherent in the essentially undefined meaning of membership in the Delaware cell of the Aryan Brotherhood. The issue before us is whether evidence of Satanism or satanic “worship” was relevant character evidence for the jury deliberating the death-worthiness of the capital defendants. 1

Despite the demeaning, stifling practice of segregation of the races sanctioned by this nation and the United States Supreme Court 2 prior to Brown v. Board of Education, 347 U.S. 483 (1954), our society survived and prospered under the rule of law, coalesced to defend itself in two world wars, and produced and nurtured the United States Constitution that ultimately served as the foundation for moving toward the ideal of racial equality among our citizens. I suggest, however, that under no circumstances could this nation have survived over a similar period of time with substantial numbers of its citizens committed to Satanism.

Whether viewed as a living supernatural being or force, or merely as a Active rallying symbol, devotion or commitment to Satan or satanic worship is an unambiguous, unequivocal commitment to evil. The dictionary definition of Satan is: “the chief evil spirit; the great adversary of humanity; the devil.” Satanism is defined as: “the worship of Satan or the powers of evil; a travesty of Christian rites in which Satan is worshiped; diabolical or satanic disposition, behavior, or activity.” Satanic is defined as: “of Satan; characteristic of or befitting Satan; extremely wicked; devillike; diabolical.” The Random House Dictionary 1704 (2d Ed. 1987).

Although differences may exist among Satanists concerning the extent to which they will inflict their commitments to antisocial *60 themes upon society, there seems to be little basis for doubting that Satanism is inimical to the continuation of a moralistic society governed by law. On the other hand, society in general may condemn racial imperialists such as Dawson, but not to the extent of finding them especially deserving of death when judged as capital defendants.

I do not agree with the majority’s conclusion that Satanism is a religion contemplated by the First Amendment. Although Satan’s “disciples” may enjoy the right to believe and express their satanical views under the First Amendment guarantee of freedom of speech (at least until posing a clear and present danger to the nation), I have great difficulty classifying Satanism as a religion under any generally accepted connotation or popular understanding of the term. The point to be made is that Satanists have tattooed themselves with character impressions of an unambiguous nature. They have embraced evil, including amorality and lawlessness, as desirable objectives.

It seems axiomatic that every deliberate human action is preceded by an actuating thought. It has also been stated with what would appear to be more than mere superficial validity, that a person is the sum total of his prior thoughts and actions. Flanagan’s involvement with Satanism was entirely consistent with his uniquely depraved act of walking into his sleeping grandmother’s bedroom, lifting her up, and shooting her in the head while Moore and other confederates shot his grandfather. The killings were motivated by Flanagan’s desire to accelerate the time when he would inherit his grandparents’ estate. After the foul deeds were accomplished, Flanagan removed money from his grandmother’s purse to purchase beer and celebrate his Satanic victory over two grandparents who had given him lodging.

In Barclay v. Florida, 463 U.S. 939 (1983), the Supreme Court declared:

In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar “central issue” from which the jury’s attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent’s jury in determining the truth of the alleged special circumstances, the jury then is free to consider a myriad of factors to determine whether or not death is the appropriate punishment.

Id. at 950 (quoting California v. Ramos, 463 U.S. 992 at 1008 (1983)). This court, in Gallego v. State, 101 Nev. 782 , 711 P.2d 856 (1985), determined that:

*61 Individuals who are identified as potential recipients of the death penalty because of conduct statutorily defined as an aggravating circumstance must then be scrutinized according to their individual characteristics. This process is facilitated by consideration of mitigating circumstances and other reliable factors relevant to the life of the defendant as a whole person. Only then may a sentencing authority render an informed judgment based upon the crime and the defendant who committed it.

Id. at 791 , 711 P.2d at 862-63 .

I find it difficult to conceive of evidence more character-illuminating than that of devil worship. The message it conveys is pellucid and highly relevant to the jury’s evaluation of appellants as persons separate and distinct from their crimes. I therefore conclude that the evidence of appellants’ Satanism was both relevant and admissible in the penalty phase of their trial as a revealing indication of the character and death-worthiness of both individuals.

There is a second reason why, in my opinion, these cases should be affirmed. The majority concludes that the questioned evidence consists of both “religious beliefs” which are constitutionally protected and “nonstatutory aggravating factors.” Thus defined, the majority holds that the evidence is not subject to a harmless error analysis. I suggest that the evidence has been mischaracterized. As noted above, I do not believe that devil worship is within the constitutional purview accorded to religion any more than human sacrifice would be under the guise of a religious practice. Both are anathema to human society and unworthy of inclusion within the Free Exercise Clause as contemplated by the framers of the Constitution. The fact that expressions of belief in either or both are, with nothing more, protected rights under the Freedom of Speech Clause or even the Free Exercise Clause does not justify excluding evidence of such beliefs as a reflection of character. Indeed, the Dawson Court so held in declaring that “the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.” Dawson, 112 S.Ct. at 1097 .

Additionally, it suggests too much to conclude that the questioned evidence is of a nonstatutory aggravating nature. Although the evidence is nonstatutory, it is certainly not to be confused with evidence of aggravating circumstances necessary to qualify a defendant for a capital sentence. During the penalty phase of a capital trial, Nevada law permits “the introduction of evidence which is otherwise inadmissible, including evidence of character and specific instances of conduct. A defendant’s character and *62 record are relevant to the jury’s determination of the appropriate sentence for a capital crime.” Pelligrini v. State, 104 Nev. 625, 630 , 764 P.2d 484, 488 (1988); see NRS 175.552.

The evidence of Satanism introduced in the penalty phase of these consolidated cases provided relevant insights into appellants’ character, thus properly focusing the jury’s attention on the character of the defendants and the extent to which they might ultimately provide a positive contribution to society.

Even if I agreed with the majority’s conclusion that it was error to admit evidence of appellants’ involvement with Satanism, I would conclude, under the compelling facts of these cases, that the error was harmless beyond a reasonable doubt.

For the reasons abbreviated above, I would affirm the judgments and sentences imposed pursuant to the jury’s verdicts. I therefore respectfully dissent.

In Dawson , the jury heard evidence that Dawson referred to himself as “Abbadon,” a term he defined to a woman in a bar as “one of Satan’s disciples,” and that the name was also tattooed across Dawson’s stomach in red letters. The Dawson Court provided no analysis of this evidence. Although it is true that the Court held erroneous the conclusion of the Supreme Court of Delaware that both the evidence of Aryan Brotherhood membership and use of the name “Abbadon” was proper character evidence, Dawson, 112 S.Ct. at 1098 , there was no analysis or explanation concerning the impropriety of the evidence concerning the name “Abbadon.” Indeed, as noted at the outset of this dissent, the Dawson Court saw fit to frame the question before it on appeal to encompass concern only for the evidence regarding Dawson’s membership in the Aryan Brotherhood. The extent to which the Court was concerned about the satanistic aspect of the evidence is thus unclear, although I realize that the Court’s vacation and remand of our decision in Flanagan v. State, 107 Nev. 243 , 810 P.2d 759 (1991), is indicative of the fact of the Court’s concern about such evidence.

See, Plessy v. Ferguson, 163 U.S. 537 (1896).