Flanagan v. State , 109 Nev. 50 ( 1993 )

OPINION

By the Court,

Young, L:

In 1985, a jury convicted appellants Flanagan and Moore of murdering Flanagan’s grandparents. Appellants murdered Flanagan’s grandparents so that Flanagan could collect insurance proceeds and his inheritance under their wills. Appellants were sentenced to death, and separately appealed to this court. This court affirmed the convictions but reversed the sentences of death based on cumulative prosecutorial misconduct. Flanagan v. State, 104 Nev. 105, 754 P.2d 836 (1988); Moore v. State, 104 Nev. 113, 754 P.2d 841 (1988). Following a joint retrial of the penalty phase in July, 1989, appellants were again sentenced to death.

At the second penalty hearing, the prosecution presented evidence detailing appellants’ belief in the occult, and their participation in a “coven.” The prosecution used the evidence to establish appellants’ bad character.¹ Focusing primarily on questions of state law, this court affirmed the convictions. Flanagan v. State, 107 Nev. 243, 810 P.2d 759 (1991).

The United States Supreme Court vacated this court’s decision and remanded for reconsideration in light of Dawson v. Delaware, 112 S.Ct. 1093 (1992). Flanagan v. State, 112 S.Ct. 1464 (1992); Moore v. State, 112 S.Ct. 1463 (1992). We remand the cases for retrial of the penalty hearing.

In Dawson, a jury convicted the defendant of first-degree murder and other crimes. Dawson, 112 S.Ct. at 1095. At the penalty hearing, the prosecution presented evidence that Dawson belonged to the “Aryan Brotherhood,” a white supremacist prison gang. Id. at 1096. The United States Supreme Court held that the State violated Dawson’s First and Fourteenth Amendment rights by admitting evidence of Dawson’s membership in the Aryan Brotherhood. Id. at 1099.

The United States Supreme Court stated that evidence of constitutionally protected associations could be admissible to show that a defendant poses a future danger to society. Id. at 1098. However, the mere fact that a defendant belongs to a group holding racist or other antisocial beliefs is insufficient. To be admissible, the constitutionally suspect evidence must somehow be “tied” to the defendant’s crime. Id.

Such a tie was present in Barclay v. Florida, 463 U.S. 939 (1983), a case in which a black defendant killed a white hitchhiker. The trial court properly considered evidence that the defendant belonged to the Black Liberation Army, a group whose sole purpose was to indiscriminately kill white persons and to start a racial war. Dawson, 112 S.Ct. at 1098 (citing Barclay, 463 U.S. at 942-44).

The United States Supreme Court found that the tie was missing in Dawson: “Because the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts, the Aryan Brotherhood evidence was . . . not relevant to help prove any aggravating circumstance.” Dawson, 112 S.Ct. at 1098. The court rejected Delaware’s contention that Dawson’s beliefs were relevant to establishing his character: “Whatever label is given to the evidence presented, ... we conclude that Dawson’s First Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence proved nothing more than Dawson’s abstract beliefs.” Id.

From Dawson, we derive the following rule: Evidence of a constitutionally protected activity is admissible only if it is used for something more than general character evidence.²

In the cases of Flanagan and Moore, the jury heard detailed evidence of appellants’ participation in a cult. In addition to the First Amendment’s protection of associational ties, this case implicates the First Amendment’s Free Exercise Clause. “The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.” Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). The Free Exercise Clause guarantees “absolute” freedom of individual belief. See Employment Div., Or. Dep’t of Human Resources v. Smith, 494 U.S. 872, 877 (1990); Bowen v. Roy, 476 U.S. 693, 699 (1986) (unrelated plurality opinion overruled on other grounds, Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987)); Cantwell, 310 U.S. at 303. Because this protection is absolute, government may neither “penalize [n]or discriminate against individuals or groups because they hold religious views abhorrent to the authorities . . . .” Sherbert v. Verner, 374 U.S. 398, 402 (1963) (citing Fowler v. Rhode Island, 345 U.S. 67 (1953)). This limitation on government is at the core of our constitutional values: “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Stanley v. Georgia, 394 U.S. 557, 565 (1969).

The United States Supreme Court has taken a broad view in determining which beliefs are religious and therefore subject to protection. See United States v. Ballard, 322 U.S. 78, 79-80 (1944). A court may not consider the merits or truthfulness of religious beliefs:

Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. [citation omitted] It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. . . . The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain.

United States v. Ballard, 322 U.S. at 86-87; see also Thomas v. Review Bd., Ind. Employment Sec. Div., 450 U.S. 707, 714 (1981) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”). The prosecution presented evidence that appellants believed that they controlled “white magic” and “black magic,” that they controlled other supernatural powers, and that they worshipped the devil. Although these beliefs are offensive to many, they are clearly religious within the broad scope of the First Amendment.

Because the prosecution introduced evidence of constitutionally protected beliefs, we must apply the Dawson analysis to determine whether the evidence was sufficiently “tied” to the crime.

The state detailed the ritual bonding of the members, the initiation ceremony in which each member stated “Satan is my God,” and the members’ belief that they could cast a spell on an enemy to cause him physical pain. However, the prosecution did not present evidence that the “coven” engaged in violent acts, or that it endorsed violent acts. Thus, using the language of Dawson, “the evidence was ... not relevant to help prove any aggravating circumstance.” Dawson, 112 S.Ct. at 1098.

Respondent insists that the cult activities were relevant to provide the jury with a clearer understanding of appellants’ characters. The United States Supreme Court has already rejected this argument. Dawson, 112 S.Ct. at 1098. To be admissible, evidence of constitutionally protected beliefs must do something more than depict the appellants as “morally reprehensible.” Id. In the present appeals, as in Dawson, the prosecution failed to link cult participation or beliefs with appellants’ crimes.

Respondent claims that appellants’ circumstances resemble the situation in Barclay more than Dawson. In Barclay, the defendant’s participation in the Black Liberation Army was directly related to his crime. Barclay murdered a white hitchhiker in furtherance of his belief that blacks should engage whites in a race war. Barclay, 463 U.S. at 942-44. In contrast, appellants’ motive for murdering Flanagan’s grandparents was pecuniary gain. Respondent has never suggested that appellants committed murder in furtherance of their religious beliefs. Thus, Barclay, is distinguishable.

Respondent argues that the evidence was admissible to rebut appellants’ evidence of conversion to Christianity. In Dawson, the court acknowledged the “principle of broad rebuttal.” Dawson, 112 S.Ct. at 1099. However, the prosecution presented evidence of appellants’ cult activities as part of its case-in-chief. Only then did appellants present evidence of their conversion to Christianity. “[I]t is not a desirable order of proof that would permit a prosecutor ... to anticipate what an accused’s defenses might be, absent the admission of a confession, admission against interest, or the like.” Findley v. State, 94 Nev. 212, 215, 577 P.2d 867, 869 (1978) (Manoukian, J., concurring); see People v. Boyd, 700 P.2d 782, 792 (Cal. 1985). If the trial court had ruled that evidence of cult affiliation would be admissible only on rebuttal, it is highly unlikely that appellants would have raised the issue of their religious beliefs. But for the unconstitutional admission of the evidence in the prosecution’s case-in-chief, the jury would not have heard the evidence.

In Dawson, the majority reserved to the state court the question of whether the state court could apply a harmless-error analysis to the constitutional violation. Dawson, 112 S.Ct. at 1099. However, in his concurring opinion Justice Blackmun stated: “Because of the potential chilling effect that consideration of First Amendment activity at sentencing might have, there is a substantial argument that harmless-error analysis is not appropriate for the type of error before us today.” Id. at 1100.

On remand, the Delaware Supreme Court interpreted Dawson as allowing for a harmless-error analysis:

[Tjhis court has concluded that the majority would not have opined that “the question of whether the wrongful admission of the Aryan Brotherhood evidence at sentencing was harmless error is . . . open for consideration by the Supreme Court of Delaware on remand,” if First Amendment errors were not subject to a harmless error analysis.

Dawson v. State, 608 A.2d 1201, 1203 (Del. 1992) (quoting Dawson v. Delaware, 112 S.Ct. at 1099). The Delaware Supreme Court also relied on Clemons v. Mississippi, in which the United States Supreme Court stated that harmless-error analysis is constitutionally permissible. Dawson, 608 A.2d at 1203-04 (quoting Clemons v. Mississippi, 494 U.S. 738, 754 (1990)).

In Clemons, the United States Supreme Court applied principles which it developed in Zant v. Stephens, 462 U.S. 862 (1983). Clemons, 494 U.S. at 744-45. In both cases, the United States Supreme Court addressed whether harmless-error analysis was appropriate where the jury considered an unconstitutionally vague aggravating factor. These cases are distinguishable from the present cases in that they did not involve the admission of constitutionally protected activities as evidence of an aggravating factor.

In Zant, the United States Supreme Court considered application of the following rule in the context of a penalty hearing:

If, under the instructions to the jury, one way of committing the offense charged is to perform an act protected by the Constitution, the rule . . . requires that a general verdict of guilt be set aside even if the defendant’s unprotected conduct, considered separately, would support the verdict.

Zant, 462 U.S. at 883. The court held that, where the jury had relied on an invalid statutory factor,³ the rule would not apply to invalidate the defendant’s death sentence. In explaining this conclusion, the court emphasized that the jury would have heard evidence of the defendant’s prior assaults regardless of the statutory factor’s validity. Id. at 886-87. The court made a key distinction:

[I]t is essential to keep in mind the sense in which that aggravating circumstance is “invalid.” It is not invalid because it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected. Georgia has not, for example .... attached the “aggravating” label to factors that are constitutionally impermissible . . ., such as for example the race, religion, or political affiliation of the defendant . ... If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury’s decision to impose death be set aside. ”

Id. at 885 (emphasis added). In Barclay, the United States Supreme Court relied on the same distinction. Barclay, 463 U.S. at 956 (Rehnquist, J., plurality opinion).

In the cases of Flanagan and Moore, the prosecution submitted evidence of appellants’ religious beliefs in violation of the Constitution. The prosecution used this evidence as a nonstatutory aggravating factor. The jury would not otherwise have heard it. Thus, these cases fall squarely within the dictum from Zant; due process of law requires that the jury’s decision to impose death be set aside. This requirement leaves no room for a harmless-error analysis.

The prosecution may not raise the issue of appellants’ religious beliefs for the bare purpose of demonstrating appellants’ bad character. By violating this prohibition, the prosecution invited the jury to try appellants for heresy. “[0]ur Constitution, and our criminal justice system, protect other values besides the reliability” of the jury’s determinations. Rose v. Clark, 478 U.S. 570, 588 (1986) (Stevens, J., concurring). In recognition of the fundamental value embodied in the Free Exercise Clause, which affords absolute protection to religious beliefs, this court must set aside appellants’ sentences.

Accordingly, we vacate the death sentences and remand the cases for a new penalty hearing.⁴

Rose, C. J., concurs.

1 In his closing argument, the prosecutor stated:

And how about devil worship. You have read books, you have seen movies, you heard the terminology coven. It exists. They happen. Sort of tried to play down the whole deal but it happens and this coven, the evidence suggests, worshipped satan. It is as antichrist as it can get. It flies in the face of most people’s deepest most dearest held beliefs and they warmly embraced it.... I mean, think about that in terms of the character of the persons who you are sentencing. Think about what they did and what they believed in.

2 “[0]n the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. Because Delaware failed to do more, we cannot find the evidence was properly admitted as relevant character evidence.” Dawson, 112 S.Ct. at 1098.

3 The jury considered as a statutory factor the defendant’s “substantial history of serious assaultive criminal convictions.” Zant, 462 U.S. at 885. This factor was unconstitutionally vague. Id. at 886.

4 The Honorable Miriam Shearing, Justice, did not participate in the decision of this matter.