Opposition Brief — Moore v. Nevada

f™

| Sapterne Court, U.S

; FILED

(3

2 OCT 8 198

CASE NO. 91-432

OFFICE OF THE GLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

RANDOLPH MOORE,

Petitioner,

Vi

THE STATE OF NEVADA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEVADA

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

REX BELL

District Attorney

JAMES TUFTELAND*

Chief Deputy District Attorney

200 South Third Street

Las Vegas, Nevada 89155

Telephone: (702) 455-4711

Counsel for Respondent

Attorney of Record*

QUESTION PRESENTED

Whether, during the penalty phase of a

bifurcated murder trial, the State of

Nevada, after presenting evidence of four

statutorily outlined aggravating circum-

stances, may also seek to shed light on

the Petitioner's character by presenting

evidence of the Petitioner's participation

in Satan worshipping and satanic rituals.

a

RELATED CASES

Randolph Moore, the Petitioner, and

codefendant Dale Edward Flanagan were

jointly tried, convicted and sentenced to

death for the murders of Carl and Colleen

Gordon. In Flanagan v. State, 754 P.2d

836 (Nev. 1988) and Moore v. State, 754

P.2d 841 (Nev. 1988), the Nevada Supreme

Court reversed the sentences and remanded

the cases for a new penalty hearing.

After again being sentenced to death, both

Flanagan and Moore appealed and the Nevada

Supreme Court, in a consolidated Opinion,

affirmed the sentences. Flanagan v. State,

810 P.2d 759 (Nev. 1991).

In addition to Petitioner's Petition

for Writ of Certiorari addressed herein,

codefendant Flanagan has also filed a

Petition for Writ of Certiorari alleging

the same issues as Petitioner. The State

of Nevada is responding separately to each

petition.

sin ii

TABLE OF CONTENTS

QUESTIONS PRESENTED

RELATED CASES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

STATEMENT OF FACTS

SUMMARY OF THE ARGUMENT

ARGUMENT

THE INTRODUCTION, BY THE STATE

OF NEVADA, OF EVIDENCE RELATING

TO PETITIONER'S INVOLVEMENT IN

SATAN WORSHIPPING DID NOT RENDER

PETITIONER'S SENTENCE UNCONSTI-

TUTIONAL, SINCE, IN ADDITION TO

PRESENTING EVIDENCE OF THE

AGGRAVATING CIRCUMSTANCES BEING

ASSERTED, THE STATE IS ALLOWED

TO PRESENT EVIDENCE OF PETI-

TIONER'S CHARACTER AT PETI-

TIONER'S PENALTY HEARING

CONCLUSION

iii

Page

ii

& &

14

30

TABLE OF AUTHORITIES

Cases Cited: Page

Allen v. State,

99 Nev. 485, 665 P.2d 238 (1983) 19,20

Biondi v. State,

101 Nev. 252, 699 P.2d 1062 (1985) 19,20

Flanagan v. State,

754 P.2d 836 (Nev. 1988) ii

Flanagan v. State,

810 P.2d 759 (Nev. 1991) ii

Gregg v. Georgia,

428 U.S. 153, 96 $.Ct. 2909 (1976) 17

Lowenfield v. Phelps,

484 U.S. 231, 108 S.Ct. 546 (1988) 18

Milligan v. State,

101 Nev. 627, 708 P.2d 289 (1985),

cert. denied, 479 U.S. 870,

107 S.Ct. 238 (1986) 24

Moore v. State,

754 P.2d 841 (Nev. 1988) ii

McCleskey v. Kemp,

481 U.S. 279, 107 8.Ct. 1756

rehearing denied, 482 U.S. 920,

107 5.Ce. Fis9 (3967) 20

McDaniel v. Paty,

435 U.S. 618, 98 S.Ct. 1322 (1978) 26

Pellegrini v. State,

104 Nev. 625, 764 P.2d 484 (1988) 20,21

iv

TABLE OF AUTHORITIES (Cont'd. )

Cases Cited: Page

People v. Davis,

794 P.2d 159 (Colo. 1990),

cert. denied, Davis v. Colorado,

i # , 111 S.Ct. 662 (1991) 20

Proffitt v. Florida,

428 U.S. 242, 96 S.Ct. 2960 (1976) 17

Sherbert v. Verner,

374 U.S. 398, 83 S.Ct. 1790 (1963) 26

Stromberg v. California,

283 U.S. 359, 51 S.Ct. 532 (1931) 27

Texas v. Johnson,

if , 109 S.Ct. 2533 (1989) 25

Torcaso v. Watkins,

367 U.S. 488, 81 S.Ct. 1680 (1961) 26

Wasman v. United States,

468 U.S. 559, 104 S.Ct. 3217 (1984) 19

Zant v. Stephens,

462 U.S. 862, 103 S.Ct. 18,20,

2733 (1983) 25,26,

27,28

Nevada Revised Statutes Cited:

NRS 175.552 . 19

NRS 200.033 19

STATEMENT OF THE CASE

By way of an Information filed on

February 25, 1985, the Petitioner and five

codefendants were charged with two counts

of Murder With Use of a Deadly Weapon and

one count each of Conspiracy to Commit

Murder, Robbery With Use of a Deadly Weap-

on, Conspiracy to Commit Robbery, Burglary

and Conspiracy to Commit Burglary. The

Petitioner plead not guilty to all seven

counts against him and a jury trial was

held beginning on September 26, 1985.

On October 11, 1985, the jury re-

turned guilty verdicts on all seven counts

against the Petitioner. Following the

Petitioner's conviction, a penalty phase

hearing was held and on October 17, 1985,

the trial jury sentenced the Petitioner to

death.

The Petitioner subsequently filed an

appeal with the Nevada Supreme Court. On

appeal, the Nevada Supreme Court, citing

«le

the cumulative effect of the prosecutor's

misconduct, reversed Petitioner's deat”.

sentence and remanded the case for a new

penalty hearing.

On July 10, 1989, a second penalty

hearing was commenced, following which

the Petitioner was again sentenced to

death. Subsequently, the Petitioner

again appealed and on April 30, 1991, the

Nevada Supreme Court affirmed Petitioner's

death sentence.

STATEMENT OF FACTS

Carl and Colleen Gordon, fifty-eight

and fifty-seven years old respectively,

were the grandparents of Dale Edward

Flanagan. In October of 1984, Flanagan,

Petitioner Randolph Moore and four other

trial codefendants met at Moore's house

to discuss murdering the Gordons.

Flanagan explained that he was the only

beneficiary of the Gordon's will and he

would inherit a considerable amount of

money if they were killed. Flanagan

stated that he would kill his grandmother

if he had to, and Petitioner volunteered

to kill Flanagan's grandfather.

The plan called for Mrs. Gordon to be

beaten in the head and Mr. Gordon to be

shot as he walked down the stairs. To

cover up the brutal murders, the killers

decided to make it look as though the

house had been broken into in a robbery

attempt.

On the evening of the murders, the

Petitioner and his codefendants met at

approximately 11:00 p.m., armed with a

.22 caliber revolver, a regular .22 cali-

ber rifle and a "sawed-off" .22 caliber

rifle. They then proceeded to the

Gordons' home and broke in through a

window. Flanagan proceeded to his grand-

mother's room where he found her sitting

up in bed. He grabbed her, pushed her

down and shot her twice in the right side

of the head and once in the left ear.

After apparently hearing his wife's

screams and the gunshots, Mr. Gordon came

down the stairs. Petitioner was waiting

for him and subsequently shot and killed

him. Mr. Gordon was shot initially in

the chest, rib cage, abdomen, upper rignt

arm, and back. Then, as Petitioner later

stated, "The grandfather was squirming

and I went up to him and shot him in the

head."

ne

Petitioner was convicted of two counts

of Murder with Use of a Deadly Weapon and

other charges including Conspiracy,

Robbery and Burglary. After subsequently

being sentenced to death at the conclusion

of his penalty hearing, Petitioner

appealed to the Nevada Supreme Court

based, in part, on prosecutorial miscon-

duct at the penalty hearing.

On May 18, 1988, the Nevada Supreme

Court reversed Petitioner's death sentence

based on five categories of misconduct.

These five categories were reference to

improbable rehabilitation and future kill-

ings; references to another convicted

murderer; references to Petitioner's

failure to testify and references regard-

ing community standards. Although, at the

penalty hearing, the State had made refer-

ence to the devil worshipping activities

of the Petitioner and Flanagan, noticeably

absent from the opinion was any evidence

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a——

that the Nevada Supreme Court deemed the

references to Satan to be improper.

Upon reversal of the death sentence,

the case was remanded for a new penalty

hearing. The second penalty hearing

commenced on July 10, 1989.

In its opening statements to the jury

in the second penalty hearing, the State

very clearly explained to the jury what

must happen before the death penalty could

be imposed. The State asserted that:

There is a particular set

of circumstances that need to

come before you in a penalty

hearing. There are things

called aggravating circum-

stances which the State alleges

in every death penalty case.

We could allege one or more.

We have alleged four in this

particular case.

Before you could ever im-

pose the death penalty, you are

going to have to find at least

one of these and do some other

things, too, ... You will

want . . . to make sure that I

have presented sufficient evi-

dence to prove to you beyond a

reasonable doubt that those

aggravating circumstances or

one of them exist.

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a SET

The first one... is

that the killings caused a risk

of great harm to more than one

person.

The second is that the

murders occurred during the

commission of a burglary. :

The third is that the m rders

occurred during the co; nission

of a robbery.

And the last is that the

purpose of the killing was to

receive money.

The State went on to explain that the jury

would also hear evidence about the character

of the Petitioner. The State asserted that

this character evidence would include

reference to Petitioner's "use of devil

worship," the fact that Petitioner was "in

command" of a "coven" and that Petitioner,

", . . was known as white magic." which,

"., . . has to do with the intimidation of

people, to make people do things that they

wouldn't otherwise want to do."

The State made it clear that the evi-

dence of devil worship was only being

offered as character evidence, not as an

ata

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aggravating circumstance. Outside the

presence of the jury, the Petitioner had

objected to the use of any such evidence

to which the State responded:

as to the devil

worship... This is a major

part of two young men's lives

that created not only their

lifestyles but their manner of

thinking and it identifies them

in their character.

The court agreed with the State and ruled

that the evidence was admissible, stating

that:

[Evidence of devil worship]

does go to the character of the

two defendants. .. . {i]Jna

penalty phase the character is

the issue and... as [the

State] has suggested [the devil

worshipping] was clearly a

substantial part of these men's

lives at this time.

During the course of the penalty hear-

ing, the State, in addition to proving the

four aggravating circumstances alleged,

produced testimony relating to the devil

worshipping activities of the Petitioner.

Tom Akers, one of the original six

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EEE

defendants involved in the murders, testi-

fied that Flanagan had written the letter

to Petitioner, after the murders, in which

Flanagan stated, ". . . Satan is my God."

Wayne Wittig testified that he had pre-

viously been a member of a "coven" led by

Petitioner and Flanagan and that, "A coven

is a gathering of people .. . to get the

best out of life using black and white

magic, sort of satanic." Wittig further

testified that the coven did worship Satan.

Furthermore, Angela Saldana testified that

Petitioner had told her he was in a coven.

Saldana also stated that she had personal

knowledge that Petitioner and the others

were involved in black magic or satanic

activities. She went on to say that she

had seen some of the paraphernalia at

Petitioner's house.

In addition to the State's evidence,

the Petitioner and Flanagan admitted to

devil worshipping activities. In his

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unsworn statement to the jury at the end of

the defense's case, Flanagan said, ". ..HI

was involved in occult activities. ... HI

will say that it was satanic worship." The

Petitioner followed this by stating, ".

I am not going to deny practice [sic] white

witchcraft. I practiced it for quite a

number of years."

During the closing arguments, the State

again clearly explained to the jury how a

death sentence could be imposed; as well as,

expressly outlining the aggravating cir-

cumstances and various pieces of character

evidence. The State stated that the jury

must first find some aggravating circum-

stances, and find that they outweigh any

mitigating evidence, before they could even

be allowed to consider the death penalty.

Specifically, the State argued that:

If you find one or more

(aggravating circumstances],

then you take it and you weigh

it against whatever you find in

mititgation . .. And if the

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ee

aggravation to you is more impor-

tant than the mitigation, then

you are legally allowed to impose

the death penalty. .. . That is

the legal part of it.

The State then went through the aggra-

vating circumstances, one by one, showing

how they had been proven. The State

asserted that:

One, ... This scheme,

this conspiracy, caused a great

risk of harm to more than one

person and we know . . . more

than one person. . . in fact

SiGe. «+.» » TWO... THO lest

jury convicted them of robbery of

the Gordons .. . this killing

was done during the commission of

a robbery. .. . Three, the

murder was committed in the com-

mission of a burglary and they

were convicted of burglary by the

other jury. .. . Four, the

murder .. . was committed

for the purpose of receiving

money .. . This is the will.

This is the inheritance

Clearly, all four aggravating

circumstances exist.

After showing the existence of the aggra-

vating circumstances and how they appeared

to outweigh the mitigating evidence, the

State asserted that the jury was, ".

legally allowed to impose the death penalty,"

tte

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but the question for the jury was now, "Do

you think it is appropriate .. ."

The State argued that after finding the

existence of the aggravation, the jury

would have to:

think about the nature

of the crime .. . the character

of the defendants .. . and you

use your own subjective decision-

making minds to determine whether

or not the death penalty is appro-

priate in this particular case.

The State then went on to discuss why the

death penalty was appropriate in this case.

In addition to informing the jury that some

purposes of the death penalty are to punish

murders and to deter others from committing

murders, the State asserted that the jury

could consider the character of the

Petitioner in deciding whether to sentence

him to death.

“4Yith regard to Petitioner's character,

the State brought out various incidents

which were indicative of such character.

The State asserted that Petitioner and his

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codefendants liked, ". . . to carry weapons

guns and knives .. .;" that they had,

", . . the ability to premeditate and plan

to kill two people .. . and

the strength of character ...to... do

it," and that Petitioner was into, ".

devil worship. .. . this coven, the evi-

dence suggests, worshipped Satan." The

State strengthened the relevance of this

evidence by stating that Petitioner and

Flanagan were still involved in Satan wor-

shipping at the time of and after the kill-

ings. This was done, in part, by quoting

from Flanagan's letter to Petitioner, after

the murders, which stated, ". . . let the

curse of Satan and all my powers of black

magic take them to hell." and, "I will

come back as Satan is my God."

After deliberations, the jury imposed a

sentence of death on the Petitioner. The

jury held that all four aggravating circum-

stances alleged by the State were in fact

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proven beyond a reasonable doubt and that

the only mitigating factor was Petitio:-er's

lack of previous criminal record.

SUMMARY OF THE ARGUMENT

Petitioner's argument is based on the

premise that the State of Nevada used evi-

dence of Petitioner's devil worshipping

activities as an aggravating circumstance |

in seeking the death penalty and since such

evidence comprises a constitutionally pro-

tected activity, Petitioner's death sen-

tence is invalid. This premise is incor-

rect and Petitioner's claims are without

merit.

The State explained that the evidence

was going to be offered as character evi-

dence, not as an aggravating circumstance,

the judge ruled that it was character evi-

dence and the State introduced it as

character evidence after outlining four

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statutory aggravating circumstances.

Because the sentencing jury must also

assess the Defendant, as well as the crime,

character evidence is admissible at penalty

hearings and the State's use of the devil

worship evidence in question was proper.

Furthermore, the jury issued a speci-

fic, as opposed to a general, verdict which

outlined all four aggravating circumstances

found. Because ali four are valid, legally

sufficient circumstances which can support

a death sentence, Petitioner's sentence

need not be vacated. Even if the use of

the devil worship evidence is deemed

unconstitutional, there is a clear explana-

tion of what the jury relied on to sentence

Petitioner and that evidence provides ample

support for affirming the death sentence.

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ARGUMENT

THE INTRODUCTION, BY THE STATE OF NEVADA,

OF EVIDENCE RELATING TO PETITIONER'S IN-

VOLVEMENT IN SATAN WORSHIPPING DID NOT

RENDER PETITIONER'S SENTENCE UNCONSTITU-

TIONAL, SINCE, IN ADDITION TO PRESENTING |

EVIDENCE OF THE AGGRAVATING CIRCUMSTANCES

BEING ASSERTED, THE STATE IS ALLOWED TO

PRESENT EVIDENCE OF PETITIONER'S CHARACTER

AT PETITIONER'S PENALTY HEARING

Petitioner has alleged that he was pre-

judiced at his penalty hearing by the State's

use of evidence relating to Petitioner's

involvement in satanic worship. Petitioner

argues that such evidence is impermissible

when used as an aggravating circumstance in

seeking the death penalty and therefore, its

use as such was violative of Petitioner's

constitutional rights regarding freedom of

religion. The State of Nevada's actions

were proper. Petitioner has not asserted a

=) =

claim for which this Court should grant

certiorari.

To begin, it is important to note the

difference between penalty hearings and

guilt hearings in bifurcated trial systems.

Penalty hearings involve considerations

which are much different from those involved

in a guilt trial. At a penalty hearing, the

sentencing body must consider qualified

evidence which will allow it to better

assess the defendant and better determine

the proper range of punishment.

When the death penalty is involved,

this Court has repeatedly held that the

State's sentencing scheme must protect

against the arbitrary and capricious impo-

sition of the death sentence. Gregg v.

Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976);

Proffitt v. Florida, 428 U.S. 242, 96 S.Ct.

2960 (1976). In short, the sentencing

scheme must genuinely narrow the class of

persons eligible for the death peanlty.

«it?

eee

Zant v. Stephens, 462 U.S. 862, 103 S.Ct.

2733 (1983).

This Court has held that one way to

insure that the sentencing scheme properly

narrows the class of persons eligible for

the death penalty is to have the state

legislature produce statutory aggravating

circumstances which are presented to the

sentencing body at trial. Lowenfield v.

Phelps, 484 U.S. 231, 108 S.Ct. 546 (1988).

The existence or absence of these circum-

stances helps the sentencing body decide

the propriety of the death penalty.

This is, however, not the only type of

evidence which can be used by a sentencing

body to determine whether the death penalty

is appropriate. As stated earlier, the

sentencer must also assess the particular

defendant to properly determine punishment.

As this Court has held, a sentencing court

Or jury must be permitted tc consider any

and all information that reasonably might

o1i@-

EE

bear on the proper sentence for a particular

defendant. Wasman v. United States, 468 U.S.

559, 104 S.Ct. 3217 (1984).

In line with this holding is Nevada

Revised Statute (NRS) 175.552. This Nevada

statute states, in part, that:

In the [penalty] hearing,

evidence may be presented con-

cerning aggravating and miti-

gating circumstances relative to

the offense, defendant or victim

and on any other matter which the

court deems relevant to sentence,

whether or not the evidence is

ordinarily admissible.

(emphasis mine).

The Nevada Supreme Court has interpreted

this statute to mean that the evidence

admissible against a defendant at a penalty

hearing is not limited to evidence of the

nine aggravating circumstances outlined in

NRS 200.033. Allen v. State, 99 Nev. 485,

665 P.2d 238 (1983); Biondi v. State, 101

Nev. 252, 699 P.2d 1062 (1985). Rather,

the Nevada Supreme Court has held that any

relevant character evidence, which would be

otherwise inadmissible at the guilt trial,

aia

is admissible at the penalty hearing.

Pellegrini v. State, 104 Nev. 625, 764 P.2d

484 (1988); Allen, supra; Biondi, supra.

This position is in accord with the

decisions of other state courts of last

resort and this Court also. For example,

the Supreme Court of Colorado, in People

v. Davis, 794 P.2d 159 (Colo. 1990), cert.

denied, Davis v. Colorado, v.58. ;

111 S.Ct. 662 (1991), held that a jury must

be able to consider all facts and circum-

stances of the crime, the defendant's back-

ground and the defendant's character before

assessing penalty. Additionally, this Court

held in Zant, supra, that in a capital

punishment scheme, it is important to pro-

vide for individualized determinations

based, in part, on the character of the

individual defendant. Moreover, in

McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct.

1756, rehearing denied, 482 U.S. 920, 107

S.Ct. 3199 (1987), this Court ruled that in

é30e

<<

the making of a capital sentencing decision,

one requirement is for, ". . . individual

jurors to focus their collective judgment

on the unique characteristics of a partic-

ular criminal defendant."

The Nevada holdings are based on the

rationale that a defendant's character is

one factor that is reievant to a jury's

determination of the appropriate sentence

for a capital crime. Peliegrini, supra.

Clearly, the State of Nevada considers a

defendant's character to be highly relevant

in assessing punishment and therefore allows

for the introduction of such evidence in

penalty hearings. Furthermore, the State

of Nevada asserts that this approach is

proper as evidenced by the similar holdings

of this Court and other state supreme courts.

In the situation at bar, the State of

Nevada introduced evidence of Petitioner's

satanic worshipping activities at Petition-

er's penalty hearing. This evidence was,

= ie

however, introduced purely as character

evidence, completely distinct from the, four

aggravating circumstances asserted.

Before the trial started, the Petitioner

objected to any use of the Satan worshipping

evidence. The State responded that the

evidence would be offered to show the char-

acter of the Petitioner. The State asserted

that the evidence was relevant to Peti-

tioner's character because it was indicative

of his lifestyle and his way of thinking.

Furthermore, the State argued that the

letter Flanagan wrote to Petitioner showed

that the satanic worshipping was still a

part of their lives at the time of the

murders.

The judge agreed with the State and

held that the evidence was indicative of

Petitioner's character and was clearly,

", . . a substantial part of [petitioner's

life] at this time." As such, the evidence

was held to be admissible during the

>

hearing. However, before the evidence was

introduced, even before mention was made of

it, the State, in its opening remarks,

explained to the jury that the State was

asserting four aggravating circumstances.

The State went on to explain what those

four circumstances were and how the jury

must act with regard to them. The State

then explained the separate area of char-

acter evidence and how to use it.

The State followed this same approach

when it closed the hearing. In its closing

argument, the State again outlined the four

aggravating circumstances and showed how

they had been proven. The State then

explained the use of other evidence, like

character evidence, and referred to various

pieces of evidence tending to reflect on

Petitioner's character. One of these

pieces of evidence was Petitioner's pen-

chant for devil worship.

The State asserts that the admission of

«S36.

the devil worship evidence as character evi-

dence was proper. It was clearly offered

as character evidence, the judge expressly

ruled it to be character evidence and the

holdings of the Nevada Supreme Court and

this Court allow for the introduction of

character evidence at penalty hearings.

The decision to admit particular evidence

during the penalty phase hearing is within

the sound discretion of the trial court and

will not be overturned absent an abuse of

discretion. Milligan v. State, 101 Nev.

627, 708 P.2d 289 (1985), cert. denied, 479

U.S. 870, 107 S.Ct. 238 (1986). The State

asserts the judge used proper discretion

and this Court should decline to review

the issues regarding the admission of this

character evidence.

Furthermore, the introduction of the

devil worship evidence did not violate any

freedom of religion rights of the Petition-

er. The Petitioner alleges that the use of

att.

this evidence by the State was equivalent

to using a constitutionally protected

activity to obtain a death sentence. This

allegation is also without merit.

As Petitioner correctly notes, this

Court has consistently allowed individuals

to adhere to any religious beliefs they

want to under the protection of the First

Amendment. See Texas v. Johnson, U.S.

, 109 S.Ct. 2533 (1989). As such, the

State could not base an aggravating circum-

stance on a constitutionally protected

activity. Zant, supra. Along these lines,

the Petitioner argues that his worship of

the devil was a religious belief and evi-

dence of this belief was used as an aggra-

vating circumstance to obtain the death

penalty. This argument fails for two

reasons.

To begin, the evidence, as previously

discussed, was used as character evidence,

not as an aggravating circumstance.

=~

Therefore, Petitioner's reference to cases

like McDaniel v. Paty, 435 U.S. 618, 98°

S.Ct. 1322 (1978); Sherbert v. Verner, 374

U.S. 398, 83 S.Ct. 1790 (1963); and

Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct.

1680 (1961), is misplaced. These cases all

dealt with states depriving individuals of

their rights specifically because the indi-

viduals exercised certain religious beliefs.

Here, Petitioner was not being punished or

deprived of anything because he was a devil

worshipper; rather, he was being punished

as a murderer whose acts aiso met four

statutory aggravating circumstances.

Additionally, this case involved a very

specific, detailed verdict of death, as

opposed to a general verdict. As such,

Petitioner's heavy reliance on Zant, supra,

is also misplaced.

Even if this Court were to find that the

State's devil worship evidence was used as an

aggravating circumstance, Zant v. Stephens,

=

would act to affirm the Petitioner's sen-

tence, not render it invalid. In Zant, the

defendant was appealing his death sentence,

which was imposed after a sentencing jury

found evidence of three aggravating circum-

stances. Zant, supra. In a subsequent

case, the Georgia Supreme Court ruled that

one of Georgia's statutory aggravating

circumstances was unconstitutional. Id.

Because the particular circumstance hap-

pened to be one of the three found against

the defendant, he appealed his sentence.

Id.

The defendant in Zant, supra, relied on

Stromberg v. California, 283 U.S. 359, 51

S.Ct. 532 (1931), in alleging that the

invalidity of one of the statutory aggra-

vating circumstances underlying the jury's

sentencing verdict required that his entire

death sentence be set aside. This Court,

however, held that this allegation would

only be correct if the jury had returned a

~ yp

general verdict. Id. Where the jury

returned a specific verdict identifying all

aggravating circumstances found, as they

did in Zant and in the present case, the

sentence does not have to be vacated if

there are other valid, legally sufficient

aggravating circumstances identified which

would support the death penalty. Id.

Assuming arguendo that the devil

worship evidence could be viewed as a

constitutionally protected activity, and

that the State proffered said evidence as

an aggravating circumstance, under Zant,

supra, Petitioner's death sentence would

still be valid. This is so because the

sentencing jury specified that it had found

four statutory aggravating circumstances,

all valid and legally sufficient to support

the death penalty alone, and that those

four circumstances outweighed any miti-

gating evidence.

In sum, Petitioner's allegations are

«20=

both incorrect and without merit. The

State's offer of the devil worship evidence

was proper and Petitioner's sentence is

valid. As such, this Court should decline

to grant certiorari in this case.

+)

CONCLUSION

The Petitioner has failed to demonstrate

any conflicts between the holdings of this

Court, the United States Courts of Appeals

Or any state courts of last resort; as well

as, failing to allege any question of

federal law that this Court should address.

As such, the State of Nevada respectfully

requests that this Court deny the Peti-

tioner's request for a Writ of Certiorari.

Dated this 30th day of October, 1991.

Respectfully submitted,

Chief Deputy

torney for Respondent

REX BELL

District Attorney

200 South Third Street

Las Vegas, Nevada 89155

=30-

CERTIFICATE OF MAILING

I hereby certify and affirm that I

mailed a copy of the foregoing BRIEF IN

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF THE

STATE OF NEVADA to the attorney of record

listed below on this “He day of November,

1991.

KEVIN M. KELLY, ESQUIRE*

302 East Carson Avenue

Suite 600

Las Vegas, Nevada 89101

DAVID M. SCHIECK, ESQUIRE

SCHIECK & DERKE

302 East Carson Avenue

Suite 918

Las Vegas, Nevada 89101

ATTORNEYS FOR PETITIONER

RANDOLPH MOORE

Attorney of Record*

a Oper te

Employe Clark County

District Attorney's Office