ZANE MICHAEL FLOYD, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 36752
Supreme Court of Nevada
March 13, 2002
Rehearing denied May 7, 2002
42 P.3d 249
Per Curiam:
Early in the morning on June 3, 1999, appellant Zane Michael Floyd held a woman against her will at his apartment in Las Vegas and sexually assaulted her. He then took his shotgun, walked to a nearby Albertson‘s supermarket, and shot five employees, killing four of them. Floyd does not contend that the State failed to prove that he committed the crimes he was convicted of, but he asks that his conviction be reversed, arguing that he was improperly denied a change of venue. He also argues, among other things, that the charges of kidnapping and sexual assault were improperly joined at trial with the burglary, attempted murder, and murder charges; that the State was improperly allowed to discover and use psychological evidence obtained by his own expert; and that the prosecutor committed misconduct during the guilt and penalty phases of the trial.
FACTS
Early in the morning on June 3, 1999, Floyd telephoned an “outcall” service and asked that a young woman be dispatched to his apartment. As a result, a twenty-year-old woman came to Floyd‘s apartment around 3:30 a.m. As soon as she arrived, Floyd threatened her with a shotgun and forced her to engage in vaginal intercourse, anal intercourse, digital penetration, and fellatio. At one point he ejected a live shell from the gun, showed it to the woman, and said that her name was on it. Eventually Floyd put on Marine Corps camouflage clothing and said that he was going to go out and kill the first people that he saw. He told the woman that he had left his smaller gun in a friend‘s vehicle or he could have shot her. Eventually he told her she had 60 seconds to run or be killed. The woman ran from the apartment, and around 5:00 a.m. Floyd took his shotgun and began to walk to an Albertson‘s supermarket which was about fifteen minutes by foot from his apartment.
Floyd arrived at the supermarket at about 5:15 a.m. The store‘s security videotape showed that immediately after entering the store, he shot Thomas Michael Darnell in the back, killing him. After that, he shot and killed two more people, Carlos Chuck Leos and Dennis Troy Sargeant. Floyd then encountered Zachary T. Emenegger, who attempted to flee. Floyd chased him and shot him twice. Floyd then leaned over him and said, “Yeah, you‘re dead,” but Emenegger survived. Floyd then went to the rear of the store where he shot Lucille Alice Tarantino in the head and killed her.
As Floyd walked out the front of the store, Las Vegas Metropolitan Police Department (LVMPD) officers were waiting for him. He went back in the store for a few seconds and then came out again, pointing the shotgun at his own head. After a police officer spoke with him for several minutes, Floyd put the gun down, was taken into custody, and admitted to officers that he had shot the people in the store.
The jury found Floyd guilty of four counts of first-degree murder with use of a deadly weapon, one count of attempted murder with use of a deadly weapon, one count of burglary while in possession of a firearm, one count of first-degree kidnapping with use of a deadly weapon, and four counts of sexual assault with use of a deadly weapon.
The jury found the same three aggravating circumstances in regard to each of the murders: the murder was committed by a person who knowingly created a great risk of death to more than
DISCUSSION
1. Severance of the charges
Before trial, Floyd moved unsuccessfully to sever the counts relating to the events at his apartment from those relating to the events at the supermarket. Floyd contends that two independent episodes were involved and therefore joinder of the charges was improper and prejudiced him. He quotes the Supreme Court of California:
When a trial court considering a defendant‘s motion for severance of unrelated counts has determined that the evidence of the joined offenses is not “cross-admissible,” it must then assess the relative strength of the evidence as to each group of severable counts and weigh the potential impact of the jury‘s consideration of “other crimes” evidence. I.e., the court must assess the likelihood that a jury not otherwise convinced beyond a reasonable doubt of the defendant‘s guilt of one or more of the charged offenses might permit the knowledge of the defendant‘s other criminal activity to tip the balance and convict him. If the court finds a likelihood that this may occur, severance should be granted.1
This appears to be a sound statement of law, but it is not applicable here. The California court was considering the joinder of “unrelated counts.” We conclude that the counts here were related and that the evidence of each set of crimes was relevant and admissible to prove the other.
Even if joinder is permissible under
The first kind of prejudice results when the jury considers a person facing multiple charges to be a bad man and tends to accumulate evidence against him until it finds him guilty of something. The second type of prejudice manifests itself when proof of guilt on the first count in an information is used to convict the defendant of a second count even though the proof would be inadmissible at a separate trial on the second count. The third kind of prejudice occurs when the defendant wishes to testify on his own behalf on one charge but not on another.5
The decision to sever is within the discretion of the district court, and an appellant has the “heavy burden” of showing that the court abused its discretion.6 To establish that joinder was prejudicial “requires more than a mere showing that severance might have made acquittal more likely.”7 We conclude that Floyd has not shown that he was unfairly prejudiced by joinder of charges. The evidence of the burglary, murders, and attempted murder was
2. Pretrial coverage of the crimes and change of venue
The district court denied Floyd‘s motion for a change of venue. He claims that this was error because jurors were biased by the extensive and prominent coverage of his case by the print and broadcast media in Las Vegas. The State does not dispute that the media coverage of the case was massive. It simply points out that Floyd presents no evidence that this coverage resulted in bias on the part of any juror.
Floyd does not point to evidence that any empaneled juror was biased and does not even refer to the voir dire of the prospective jurors. Review of the voir dire shows that when asked about pretrial publicity, the jurors who were ultimately empaneled indicated that it would not influence their decision. It appears that every juror also expressed a willingness to consider sentences other than death in the event of a guilty verdict. We conclude that the district court did not err in denying the motion for a change of venue.
Floyd argues that before the State can allege aggravating circumstances and seek the death penalty, a grand jury or a justice court must first find probable cause for the circumstances. He cites the
The United States Supreme Court has stated: “Aggravating circumstances are not separate penalties or offenses, but are ‘standards to guide the making of [the] choice’ between the alternative verdicts of death and life imprisonment.”12 Therefore, an aggravating circumstance alleged in a capital proceeding does not constitute a separate crime that requires a finding of probable cause under the U.S. or Nevada constitutions.
Floyd also relies on the Supreme Court‘s holding in Jones v. United States that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”13 Jones does not support Floyd‘s proposition either. The Court emphasized that its holding in Jones did not apply to aggravating circumstances because “the finding of aggravating facts falling within the traditional scope of capital sentencing [is] a choice between a greater and lesser penalty, not a process of raising the ceiling of the sentencing range available.”14
We conclude that a probable cause finding is not necessary for the State to allege aggravating circumstances and seek a death sentence.
Before trial, Floyd filed a supplemental notice that he might call neuropsychologist David L. Schmidt as an expert witness. Floyd opposed reciprocal discovery, but the district court ordered him to provide the State with Schmidt‘s report on his examination of Floyd, which included the results of standardized psychological tests administered to Floyd. The defense later unendorsed Schmidt as a witness, and Schmidt did not testify. During the penalty phase of trial, Floyd called a different psychologist, Edward J. Dougherty, Ed.D., to testify regarding Floyd‘s mental health. In rebuttal and over Floyd‘s objection, the State called psychologist Louis Mortillaro, Ph.D., who provided his opinion on Floyd‘s mental status, relying in part on the results from the standardized tests administered by Schmidt. The district court did not permit the State to use anything from Schmidt‘s report other than the raw test data. Floyd argues that Mortillaro‘s testimony violated his constitutional rights, relevant Nevada statutes, and his attorney-client privilege.
(a) A brief statement regarding the subject matter on which the expert witness is expected to testify and the substance of his testimony;
(b) A copy of the curriculum vitae of the expert witness; and
(c) A copy of all reports made by or at the direction of the expert witness.
Addressing first the claim that Schmidt‘s report and test results were privileged work-product, we conclude that it has no merit. “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which
Next Floyd argues that the State‘s discovery and use of the Schmidt materials was improper because in his view he did not introduce those materials or any psychological evidence during his “case in chief.”
Black‘s Law Dictionary defines “case in chief” as “[t]hat part of a trial in which the party with the initial burden of proof presents his evidence after which he rests.”19 The statutes in question refer to “the case in chief of the defendant” as well as “of the state,” even though a criminal defendant normally has no burden of proof. It is clear that the statutes use the term “case in chief” to refer to either party‘s initial presentation of evidence, in contrast to either‘s presentation of rebuttal evidence. This meaning is consistent with the context of discovery: before trial a party should know and be able to disclose evidence it expects to present in its case in chief, whereas the need for and nature of rebuttal evidence is uncertain before trial. This meaning is also consistent with the use of the term in this court‘s case law.20
The State has the burden of proof in both phases of a capital
Floyd nevertheless maintains that it was improper for the State‘s expert, who testified in rebuttal, to use the test results obtained by Schmidt after the defense had decided not to call Schmidt as a witness. We conclude that the use of the evidence here was permissible.
A United States Supreme Court case provides some guidance. In Buchanan v. Kentucky, the Supreme Court considered “whether the admission of findings from a psychiatric examination of petitioner proffered solely to rebut other psychological evidence presented by petitioner violated his Fifth and Sixth Amendment rights where his counsel had requested the examination and where petitioner attempted to establish at trial a mental-status defense.”21 The Court concluded that it did not.22 At his trial, petitioner Buchanan had “attempted to establish the affirmative defense of ‘extreme emotional disturbance.‘”23 He introduced evidence from various evaluations of his mental condition done after an earlier burglary arrest.24 In response and over Buchanan‘s objection, the prosecution introduced evidence from a psychological evaluation of Buchanan done at his and the prosecution‘s joint request after his arrest for the murder in question; Buchanan had not introduced any evidence from the evaluation.25 The Court reasoned that if a defendant “presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.”26 The Court noted that Buchanan presented a mental-status defense and introduced psychological evidence, that he did not take the stand, and that the prosecution could respond to this defense only by presenting other psychological evidence.27 The prosecution therefore introduced excerpts from the
We conclude that under the circumstances of this case the State‘s use of evidence obtained from Floyd by his own expert did not violate Floyd‘s constitutional rights. We rely on a number of factors in reaching this conclusion. First, similar to Buchanan, the evidence was used only in rebuttal after Floyd introduced evidence of his mental status as a mitigating factor. Second, the district court restricted the State‘s use of evidence contained in the defense expert‘s report to the standardized psychological test results. Like Buchanan, this evidence did not describe any statements by Floyd dealing with his crimes which could incriminate him or aggravate the crimes, nor did it include any conclusions reached by the defense expert. Third, the jury was not informed that the source of the evidence was originally an expert employed by the defense, avoiding the risk of undue prejudice inherent in such information.31
5. Miranda and appellant‘s statements to police
Floyd claims that evidence of his first comments made to police after his arrest was admitted in violation of Miranda v. Arizona.32 He also claims that evidence of his other statements to police should have been suppressed because his waiver of his Miranda rights was not voluntary and knowing.
After Floyd was handcuffed at the crime scene and before being questioned, he told LVMPD officers, “I can‘t believe I shot those people.” Noticing that Floyd had on Marine Corps clothing, the arresting officer briefly spoke to him about the Marine Corps and then informed him of his Miranda rights. Floyd acknowledged that he understood his rights and agreed to talk. His statement was tape-recorded. Around 7:00 a.m., Floyd gave another tape-
The arresting officer testified that when Floyd gave his first statement he smelled of alcohol, was very excited and rambling, and had to be calmed down. A blood sample taken from Floyd at 8:00 a.m. the morning of the crimes showed that he had a blood alcohol level of 0.09 percent. An LVMPD criminalist estimated that the level would have been about 0.14 percent around the time of the shootings. A test for controlled substances proved negative.
Miranda holds that evidence of a suspect‘s statements made during custodial interrogation is inadmissible at trial unless the police first informed the suspect of his Fifth Amendment privilege against self-incrimination.33 “Interrogation” means not only express questioning, but any words or actions that “police should know [are] reasonably likely to evoke an incriminating response from a suspect.”34 Though informed of his Miranda rights, unless the defendant knowingly and voluntarily waived them, statements made during custodial interrogation are inadmissible.35 The State must prove by a preponderance of the evidence that the waiver was knowing and intelligent.36 To determine the validity of the waiver, this court examines “the facts and circumstances of the case such as the background, conduct and experience of the defendant.”37 Relevant considerations in determining the voluntariness of a confession include the youth of the defendant, his lack of education or low intelligence, the lack of advice of constitutional rights, the length of detention, repeated and prolonged questioning, and physical punishment such as deprivation of food or sleep.38 The
Before the arresting officer informed Floyd of his Miranda rights, Floyd made several incriminating admissions. He argues that evidence of these admissions should have been suppressed. Although Floyd was in custody at the time in question, he was not subjected to interrogation: the record shows that the officer did not do or say anything reasonably likely to elicit incriminating statements from Floyd in the brief time before the Miranda warnings were given. Therefore, Floyd‘s initial comments were admissible.
The record also supports the determination that Floyd waived his rights and made his admissions voluntarily and intelligently. At the time he spoke to police, Floyd was in his early 20s and had served four years in the Marine Corps. The record shows that Floyd had an average score on an intelligence test. He made most of his admissions after being advised of his Miranda rights. He began making the admissions immediately after his arrest; no lengthy detention or repeated or prolonged questioning occurred. He was not in physical discomfort, nor did police deprive him of food or sleep. He was somewhat intoxicated, but intoxication renders a confession inadmissible only if the defendant was so intoxicated that he could not understand the meaning of his comments.40 Although Floyd was obviously agitated and even somewhat bewildered by what he had done, the record shows that he understood what he was saying. His statements remained consistent and were accurate, as is borne out by the other evidence of the crimes. We conclude that Floyd acted voluntarily and intelligently and that the district court did not err in admitting evidence of his statements.
6. Prosecutorial misconduct
Floyd asserts that several comments by the prosecution constituted misconduct. A prosecutor‘s comments should be considered in context, and “a criminal conviction is not to be lightly overturned on the basis of a prosecutor‘s comments standing alone.”41
However, we will discuss one comment which was inappropriate. During closing argument in the guilt phase, the prosecutor told the jury that Floyd “perpetrated the worst massacre in the history of Las Vegas.” The jury began its deliberations soon after. Defense counsel then objected to the prosecutor‘s remark as prejudicial and inflammatory. The district court responded: “I think [the remark] isn‘t within the evidence. I also don‘t think it is true. What remedy would you suggest, now that the jury is gone? If you wish, I‘ll bring them back in and say that that wasn‘t proper argument.” Defense counsel declined that proposal because he thought “an admonition would be moot and would raise more attention than the original comment.”
The district court was correct that the record contains nothing to support the prosecutor‘s remark, and it is elementary that “a prosecutor may not make statements unsupported by evidence produced at trial.”43 The remark was therefore improper.44 We caution prosecutors to refrain from inflammatory rhetoric: “Any inclination to inject personal beliefs into arguments or to inflame the passions of the jury must be avoided. Such comments clearly exceed the boundaries of proper prosecutorial conduct.”45 Here,
7. Victim impact testimony
Floyd also contends that the prosecution committed misconduct by eliciting improper victim impact testimony.
Mona Nall, the mother of murder victim Thomas Darnell, testified during the penalty phase. She related an incident in which her son was assaulted and kidnapped. When she began to tell how the kidnappers came to her own house, the district court initially sustained an objection by defense counsel. After the prosecutor said the testimony would become relevant to show who the victim was, the court said it would permit some more questioning. The witness then testified that she, her husband, their son, and their 16-year-old daughter were held hostage for seven hours and the daughter was sexually assaulted. Defense counsel again objected, and the court asked the prosecutor, “If you have something of relevance to show ... would you get to that point, please?” The witness then said that her son was held hostage for over 30 days and was finally released in the Utah desert after his abductors tried to cut off his ears.
Victim impact testimony is permitted at a capital penalty proceeding under
Some evidence of the travails that victim Thomas Darnell endured in his life was certainly relevant, but evidence that his entire family was kidnapped and his sister sexually assaulted was so collateral and inflammatory that it violated
Floyd also complains that the district court denied his motion to allow only one victim impact witness for each murder victim and to exclude other testimony. In fact, the court granted the motion in regard to limiting victim impact witnesses to one per murder victim. The court also ruled that other people who were at the scene of the murders could testify, not as victims but in regard to the great-risk-of-death aggravator and the nature of the murders. Floyd has not shown that there was anything improper about the court‘s ruling.
8. Mandatory review of the death sentences
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and
(d) Whether the sentence of death was excessive, considering both the crime and the defendant.
The same three aggravating circumstances were found for each murder: it was committed by a person who knowingly created a great risk of death to more than one person by means which would
We see no indication that the sentences of death were imposed under the influence of passion, prejudice, or any arbitrary factor. We also conclude that the death sentences in this case are not excessive.
Floyd presented a number of witnesses to testify in mitigation. A family friend and a coworker both testified that they knew him to be a good person and that the person who committed the crimes in this case was not the Zane Floyd they knew. The coworker and Floyd‘s stepfather testified respectively that when they met Zane in jail immediately after the crimes he was “like a zombie” and “wasn‘t there.” His stepfather also told of Floyd‘s difficulties and behavioral problems in school and of how well he later did in the Marine Corps. A former Marine who served with Floyd as an instructor in combat training school testified that Floyd was the best instructor, that “in the field, he would be a perfect Marine,” but that “on his own” he did not do well.
Floyd‘s close friend testified that he and Floyd began using marijuana and methamphetamine when they were fifteen or sixteen. The friend testified that Floyd‘s mother was often intoxicated and that on Floyd‘s sixteenth birthday his stepfather played drinking games with Floyd and his friends. After Floyd returned from the Marines, his friend reintroduced him to methamphetamine, which they sometimes used without sleeping for several days.
Floyd‘s mother testified about her own drug and alcohol abuse and the loss of her first child, which caused her to drink even more. When she became pregnant with Floyd, her husband was displeased, they separated, and he filed for divorce just before Floyd‘s birth. She described Floyd‘s learning and behavioral problems as a child. She also spoke about how he played baseball and loved animals.
Psychologist Dr. Dougherty testified and gave his opinion that Floyd
suffers from the mental disease of mixed personality disorder with borderline, paranoid, and depressive features. In addition, I confirmed the prior diagnosis of attention deficit hyperactivity disorder ... It‘s my opinion ... that Mr. Floyd‘s reasoning was impaired as to rational thought at times, and at times he did not act knowingly and purposely at the time of the alleged incident. His symptoms were exacerbated by a long history of the ingestion of drugs and alcohol.
Floyd spoke in allocution and took responsibility for what he had done and said he could not tell why he did it. He said he was sorry and would regret his actions for the rest of his life.
This mitigating evidence is not insignificant, but given the aggravating circumstances and the multiple, brutal, unprovoked murders in this case, we do not deem the death sentences excessive.
CONCLUSION
We affirm Floyd‘s judgment of conviction and sentence.
MAUPIN, C. J., with whom AGOSTI, J., agrees, concurring:
I concur in the result reached by the majority, but write separately to state my view that there was no prosecutorial misconduct at trial in connection with the “massacre” argument.
It is true that no facts on the record technically demonstrated that the killings in this case constituted the “worst massacre in the history of Las Vegas.” (Emphasis added.) However, whether the killing spree perpetrated by appellant was or was not the worst