Lead Opinion
By the Court,
Thе 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.
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.
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 paraрhernalia 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. Tоm 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 cоnsulted experts in his investigation. Approximately six months after Binion’s death, Dr. Simms, the
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.
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 tonight. If I’m dead, you’ll know what happened.” Although Brown did not report this statement to police until several days after Binion’s death, he testified that he wrote down what Binion had said less than twenty-four hours after he learned that Binion was dead.
Other State witnesses testified regarding appellants’ suspicious behavior and other unusual activities at the residence around the time of Binion’s death: Binion’s maid testified that Murphy sent her home early the day before Binion’s death and told her not to come to work the next day; Binion’s gardener testified that drapes that were “always” open were closed that day and the dogs were behaving strangely; a private investigator testified that Murphy and Tabish telephoned each other fewer times than usual on that day; and Bonnie Binion testified that valuable items including cash and antique coins were missing from the Binion house.
Several State witnesses testified that Tabish had severe financial problems, thus supporting the State’s theory that his need for money provided a motive for him to kill Binion and steal his silver. Kurt Gratzer, a witness who knew Tabish in Montana where Tabish had also resided, said Tabish had discussed killing Binion with him and asked for his help. Gratzer told a friend, Timothy Boileau, that Tabish wanted him to come to Las Vegas to kill a heroin addict who was dating a stripper. Appellants countered these allegations with evidence that Binion’s death may have resulted from an accidental overdose or a suicide.
As noted, Tabish was also tried on charges relating to Leo Casey.
Casey admitted at trial that he had been involved in a scheme to defraud investors in a trucking and construction company in which Tabish had an interest. He testified that he was afraid of the men and became even more so when they threatened to bury him in the desert and proceeded to dig a “shallow grave” with excavation machinery at the sand pit. Casey said, “[T]hey threatened they were going to cut my fingers off and my wrists off, and I was extremely shaken.”
Eventually, Tabish and Wadkins drove Casey back into Las Vegas. They picked up John Joseph, and visited an attorney’s office, where documents were prepared transferring Casey’s interest in the sand pit to the others. Casey testified that his hands were bleeding slightly as he signed the documents. Notaries at the attorney’s office testified, however, that Casey did not look as though he had just been beaten.
According to Casey, when they released him, Tabish and the other men told him they would kill him, sexually assault his ex-wife, and kill his daughters if he did not leave Nevada at once. He said that he moved out of the state and was contacted by police eight months later regarding the incident. Casey also testified that Tabish had bragged to him at some time prior to this incident that he was sleeping with Ted Binion’s girlfriend, Sandra Murphy, and was using her to get to Binion’s valuable silver collection.
Before and during trial, appellants made numerous motions for severance. The district court refused to sever the Casey counts from the other counts in the information or to grant Tabish and Murphy separate trials. The district court did instruct the jury, however, that the evidence respecting the Casey counts was not to be considered as evidence against Murphy.
The jury deliberated for eight days and found Tabish and Murphy guilty of the charges specified above. Murphy filed motions for a new trial and for a judgment of acquittal. Tabish also sought a new trial, as well as a judgment notwithstanding the verdict. The district court denied the motions. This joint appeal followed.
DISCUSSION
I. Failure to sever charges
Appellants argue that improper and exceptionally prejudicial joinder deprived them of their right to a fair trial. They contend that the Casey counts should have been tried separately from the remaining counts because the charges were not based on a “common scheme or plan” and trying the charges together was unconstitutionally prejudicial.
Decisions to join or sever are left to the discretion of the trial court and will not
A. Common scheme or plan
The State contends that the charges were properly joined pursuant to NRS 173.115 because they were part of a common scheme or plan. The State claims in particular that the
common thread of all these criminal acts is greed, money and the Jean Sand Pit. The focus of all these crimes revolved around the Jean Sand Pit. Leo Casey had to be eliminated so that Tabish could obtain the sand pit. Ted Binion had to be murdered in order to obtain his silver and fund the Jean Sand Pit. The connection between all of these crimes is sufficient to justify the joinder of all these offenses.
The State also emphasizes the similarities between Casey and Binion: that Casey and Binion were both older than Tabish, both had valuable assets worth stealing, both were allegedly restrained by Tabish (and/or Murphy in Binion’s case), and both were attacked in ways leaving no visible injuries (although the State’s theory of Binion’s murder relies heavily on marks on his wrists that the State argues are evidence of applied restraint).
We agree with appellants, however, that money and greed could be alleged as connections between a great many crimes and thus do not alone sufficiently connect the incidents. Additionally, we note that Casey transferred his interest in the sand pit well before Binion’s death. This lapse of time between the events undermines the State’s theory that Tabish and Murphy killed Binion because Tabish was desperate for money to run the sand pit, and that Tabish attacked Casey to obtain his interest so he could then kill Binion to finance the project. Further, although both victims were older men with substantial assets, the alleged crimes themselves were quite distinct: Casey was allegedly victimized with a phone-book, a gun, a knife, and thumbcuffs, while Binion was allegedly murdered by a forced overdose of drugs or by suffocation.
Thе State cites to several Nevada cases defining a common scheme or plan or allowing connected counts to be tried together, but these cases fail to support the State’s claim that the Casey and Binion counts were sufficiently connected to support joinder.
B. Prejudice
We further conclude that appellants’ trial on the Binion counts was unfairly prejudiced by the joinder.
In this case, the district court instructed the jury that it was not allowed to consider evidence from the Casey counts in determining Murphy’s guilt as to the counts alleged against her. Murphy argues that this limiting instruction was inadequate, partly because the evidence in the Casey counts was so “graphic.” Moreover, Murphy contends, the State “guarantee[d] that the jury would consider the Casey matter in determining whether the Binion crimes were committed” by emphasizing in its closing arguments its view of the similarities between the Casey incident and the separate allegations in the other counts against both appellants.
This court has recognized the view of the United States Court of Appeals for the Ninth Circuit that joinder may be so prejudicial “ ‘that the trial judge [is] compelled to exercise his discretion to sever.’ ”
Additionally, the limiting instruction was inadequate to prevent the improper “spillover” effect of inappropriate joinder.
C. Judicial economy
The State also argues that joinder promoted judicial economy and that severance should not be granted on “ ‘guilt by association’ ’ ’ alone.
The State’s argument carries little force when considered in the context of this case. Tabish’s two co-defendants Joseph and Wadkins, who were charged only in connection with the Casey counts, had their cases severed from Tabish and Murphy’s before the preliminary hearing based upon a stipulation with the State. Therefore, another trial was expected to be held on the Casey counts in any event. Further, Tabish and Murphy’s co-defendants in the silver theft counts, Mattsen and Milot, were granted severance and were also scheduled for a separate trial. In short, all of the other defendants’ trials were sеvered from Tabish and Murphy’s, and there was a potential for at least two other trials at the time of Tabish and Murphy’s trial. Under these circumstances, no waste of judicial resources could have been reasonably anticipated from Tabish being tried separately from Murphy on the Casey counts, along with Joseph and Wadkins. In fact, to promote judicial economy in a far less potentially prejudicial manner, the district court could have held one trial for all the defendants involved in the Casey counts and one trial for those involved in the Binion and the silver counts. Therefore, we conclude, considerations of judicial economy were far outweighed by the manifest prejudice resulting from the joinder.
The State contends that even if the Casey counts were improperly joined, they were otherwise admissible under the “complete story” exception. NRS 48.035(3) provides:
Evidence of another act or crime which is so closely related to an act in controversy or a crime charged that an ordinary witness cannot describe the act in controversy or the crime charged without referring to the other act or crime shall not be excluded, but at the request of an interested party, a cautionary instruction shall be given explaining the reason for its admission.
This court has interpreted NRS 48.035(3) quite narrowly. For example, in Bletcher v. State, we held that it was reversible error for the district court to admit evidence of the defendant’s drug possession during his prosecution for second-degree murder.
In this case, thе Casey events could have easily been described without reference to the Binion counts, and vice versa. The fact that Tabish’s accomplices in the underground silver incident and in the Casey incident had separate trials from Tabish and from each other demonstrates the incidents are descriptively separable. Therefore, we conclude that the complete story exception does not apply to these counts.
E. Cross-admissibility
The State argues that joinder of the Binion and Casey counts was permissible because of cross-admissibility. Specifically, the State contends that evidence of the Binion counts would have been admissible at Tabish’s separate trial on the Casey counts, and evidence of the Casey counts would have been admissible at a joint trial of appellants on the other counts.
As this court held in Tinch v. State, to deem a prior bad act admissible, the district court must first determine outside the presence of the jury that “(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.”
Although, in our view, the relevance is somewhat tenuous, the Casey cоunts arguably have some relevance to the remaining counts for the various purposes advanced by the State. Appellants note that money and greed could be considered “common motives for almost every crime under the sun,” including these crimes. The Casey counts are also arguably relevant for the other purposes, i.e., to demonstrate a plan to obtain money to run the sand pit and the identity of Tabish and Murphy as Binion’s killers.
Additionally, we agree that the State could have met the second Tinch requirement
In our view, however, the district court would have manifestly abused its discretion in finding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
In sum, the district court’s improper denial of the motions to sever the Casey counts from the other counts unfairly prejudiced both appellants in their trial on those other counts. With respect to the Binion counts and the silver counts, we conclude that the error was not harmless beyond a reasonable doubt, and we reverse appellants’ convictions on those counts and remand for a new trial on those matters alone. The prejudicial impact of the improper join-der on Tabish, as it related to his trial on the Casey counts, was not as severe. Given the strong and more than substantial evidence presented against Tabish on the Casey counts, we conclude that the improper joinder was harmless beyond a reasonable doubt as it relates to his conviction on those counts. Therefore, we affirm Tabish’s conviction on the Casey counts.
II. Failure to sever appellants’ trials
Murphy argues that she and Tabish should have been granted separate trials altogether.
III. Hearsay statement of decedent
Appellants contend that the district court abused its discretion by permitting Binion’s estate attorney, James Brown, to testify that Binion telephoned him the day before his death and said, “Take Sandy [Murphy] out of the will if she doesn’t kill me tonight. If I’m dead you’ll know what happened.”
Prior to trial, appellants moved to exclude the statement as impermissible hearsay.
In Shults v. State, this court held that “[i]n order for the state of mind exception to be applicable, the victim’s state of mind must be a relevant issue, the relevance must be weighed against prejudice, and a proper limiting instruction must be given or objectionable testimony deleted.”
The district court found that Binion’s state of mind was a relevant issue because the defense theories offered at trial included suicide and accidental death.
Assuming that the statement was relevant to rebut the defense theories, we conclude that the district court abused its discretion under Shults in admitting the statement without an appropriate limiting instruction. The prejudicial impact was great: the statement strongly implied Murphy killed Binion. Moreover, the relevance of the statement was equivocal, even though there was little other evidence of Binion’s state of mind before his death.
Harmless error analysis applies to hearsay errors.
IV. Proof of criminal agency
Appellants argue that, as a matter of law, insufficient evidence was adduced at trial to establish the corpus delicti for the murder charge, i.e., that Binion died as the result of a criminal act rather than from some other cause. We disagree.
To establish probable cause, the State must show that: (1) a crime has been committed, and (2) the defendant committed that crime.
As noted above, Dr. Baden testified that he had concluded that Binion had been suffocated by one or more persons. Although there was conflicting testimony and the question of whether Binion died as a result of a criminal agency is a close one given his heroin habit, we conclude that, based on Dr. Baden’s testimony, a rational trier of fact could have found beyond a reasonable doubt that Binion’s death was caused by a criminal agency.
We further note that the district court correctly determined that the jury did not have to agree unanimously on a single factual
At trial, appellants did not object to the admissibility of this conflicting body of evidence. Rather, appellants chose to pit the credibility of the State’s witnesses against experts for the defense who testified that Binion’s death was most likely accidental or self-induced. Appellants also requested the district court to instruct the jury that, to convict, the jurors must unanimously agree on the factual theory of criminal agency; that is, they must either unanimously agree that Binion was suffocated or unanimously agree that he was poisoned. The district court rejected this proposed instruction and concluded that the jury did not have to be unanimous on the facts or theory of how the appellants committed first-degree murder. Rather, the district court concluded that the Constitution only required the jury to unanimously agree that the evidence established appellants’ guilt of first-degree murder. We agree with the district court.
In Schad v. Arizona, the United States Supreme Court observed:
We have never suggested that in returning general verdicts ... the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.”54
Although we have not previously specifically addressed whether jury unanimity on a single theory of criminal agency is necessary to establish the corpus delicti, we have cited Schad with approval in rejecting the contention that the State should be required to elect a single theory of prosecution, i.e., between premeditated or felony-murder.
CONCLUSION
The failure to sever the Casey counts from the other charges and the admission of the hearsay statement without a limiting instruction unfairly prejudiced both appellants in their trial on the Binion and the silver counts. The errors were not harmless beyond a reasonable doubt. Neither of the errors, however, had the same severely prejudicial impact with regard to Tabish’s conviction on the Casey counts,- and in that respect, we conclude the errors were harmless beyond a reasonable doubt. Accordingly, we reverse appellants’ convictions on the Binion and the silver counts and remand for a new trial on those matters alone. We affirm Tabish’s conviction on the Casey counts.
Notes
Although the jury also found Tabish guilty of conspiracy to commit kidnapping, the district court entered an amended judgment of conviction on October 16, 2000, dismissing that count.
To the extent that either appellant also generally challenges the sufficiency of the evidence supporting the jury’s verdict, we conclude that contention lacks merit.
Although we have considered appellants’ remaining arguments, we do not specifically discuss these contentions in this opinion.
Dr. Simms also observed that sоme heroin users take Xanax to augment their heroin high.
Murphy was originally charged with the Casey counts as well, but these charges against her were dismissed before trial.
Thumbcuffs were also found in a bag of silver coins discovered by James Brown and Tom Dillard behind a television in Murphy’s room at the Binion house on September 24, 1998. Brown testified that after they discovered the bag, Dillard removed it from the residence. Later, Dillard returned the bag to the residence in April 1999 where its contents were examined by an appraiser. During the appraisal, a pair of thumbcuffs were discovered mixed in with the silver coins in the bag.
NRS 173.115 provides in pertinent part:
Two or more offenses may be charged in the same . . . information in a separate count for each offense if the offenses charged . . . are:
(1) Based on the same act or transaction; or
(2) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Amen v. State,
Robins v. State,
For example, the State cites to the following: Tillema v. State,
See Floyd v. State,
Honeycutt v. State,
Spencer v. Texas,
For example, one prosecutor said in closing, “I want to draw some comparisons for your consideration. Leo Casey, older gentleman, Ted Binion, older gentleman. Leo Casey owed Rick Tabish money. Ted Binion owed Rick Tabish money. . . . Leo Casey thumb-cuffed, Ted Binion, wrists were restrained. Leo Casey beat in a manner which would leave no marks, Ted Binion suffocated in a manner that would leave no marks.”
Cf. U.S. v. Smith,
Lisle v. State,
Zafiro v. United States,
Featherstone v. Estelle,
See Lisle,
See NRS 48.045(1) (subject to certain exceptions, “[e]vidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion”).
See Bean,
See id. at 1083-84. It appears that the district court also recognized the prejudicial effects of the joinder when it commented late in the trial that it should have granted the motions to sever the Casey counts from the Binion counts.
Lisle,
See Honeycutt,
Id.; see also Flores v. State,
See Mitchell,
NRS 48.045(2) provides “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Tinch v. State,
Petrocelli v. State,
It is within the district court’s discretion to admit or exclude evidence, and that determination will not be disturbed unless manifestly wrong. See Walker v. State,
See, e.g., Tavares v. State,
We do not suggest that all evidence relating to Tabish’s interactions with Casey and their interests in the sand pit is inadmissible. For example, the State could appropriately present limited evidence relating to Tabish’s financial transactions with Casey for the purpose of establishing Tabish’s financial condition, his need for funds, and his motivation for committing the acts alleged in the Binion and the silver counts. We emphasize, however, that the highly prejudicial impact of Casey’s graphic testimony respecting the brutal treatment he received at the hands of Tabish and his accomplices substantially outweighs the limited probative value of that evidence with respect to the allegations in the Binion and the silver counts.
NRS 173.135 provides in relevant part: “Two or more defendants may be charged in the same . . . information if they are alleged to have participated in the same act or transaction or in thе same series of acts or transactions constituting an offense or offenses.”
Tabish and Murphy apparently do not challenge the joinder of the counts involving the underground silver vault with the counts alleged to have occurred at Binion’s Las Vegas residence.
Pursuant to our recent holding in Richmond v. State,
Walker v. State,
Shults,
See Brown,
See Graham C. Lilly, An Introduction to the Law of Evidence § 7.13, at 287-88 (3d ed. 1996).
Shults, 96 Nev. at 751,
See Brown,
Frutiger v. State,
Id.
Azbill v. State,
Middleton,
Frutiger,
Appellant Murphy filed a motion with this court during the pendency of this appeal “to bring new information to the court’s attention.” Attached to the motion were affidavits and photographs purporting to set forth new expert opinion evidence regarding the cause of Binion’s death. The appellate court record in this case consists of the record made and considered in the district court below. This court cannot consider matters not properly appearing in the record on appeal and therefore cannot consider this new evidence. Therefore, we deny the motion. See Carson Ready Mix v. First Nat’l Bk.,
See Moore v. State,
The Honorable Cliff Young, Senior Justice, having participated in the oral argument and deliberation of this matter as Justice of the Nevada Supreme Court, was assigned to participate in the determination of this appeal following his retirement. Nev. Const, art. 6, § 19; SCR 10. The Honorable Mark Gibbons, Justice, did not participate in the decision of this matter.
Concurrence Opinion
concurring in part and dissenting in part:
I agree with the majority that the convictions of Sandra Murphy and Richard Tabish for first-degree murder, conspiracy to commit murder and/or robbery, and robbery must be reversed, but I would affirm the remaining convictions.
I agree with Justices Maupin and Leavitt that the decision not to sever the Casey counts from the Binion counts was within the district court’s discretion and did not constitute an abuse of discretion.
The district court was within its discretion in admitting the testimony of Binion’s estate attorney regarding Binion’s statement to him the night before he died. The attorney testified that Binion said: “Take Sandy out of the will if she doesn’t kill me tonight. If I’m dead, you’ll know what happened.’ ’ Even though the statement is hearsay, it was admissible to show Binion’s state of mind to rebut the defense allegation that Binion may have committed suicide.
Despite the fact that the hearsay statement was admitted for the purpose of showing Binion’s state of mind, no instruction limiting the use of the statement for that purpose was ever given. In fact, the State argued at trial that once a statement is admitted under NRS 51.105, it may be considered for its truth. That is wrong. An instruction limiting its use to consideration of Binion’s state of mind was required. In Shults v. State, this court stated: “In order for the state of mind exception to be applicable, the victim’s state of mind must be a relevant issue, the relevance must be weighed against prejudice, and a proper limiting instruction must be given or objectionable testimony deleted.”
The district court determined that the statement was more probative than prejudicial. That determination was within the district court’s discretion.
Perhaps the lack of a limiting instruction for the hearsay statement could have been considered harmless error if the evidence of murder were overwhelming, but it was not. I cannot find the admission of the hearsay statement without a limiting instruction harmless error when the State used and emphasized the truth of the statement. In closing argument, the State repeated the statement, “Take Sandy out of the will if she doesn’t kill me tonight. If I’m dead, you’ll know what happened.” The State then commented to the jury: “Truer words were never spoken.”
This use of the hearsay statement of the decedent constitutes plain error and requires reversal of the convictions for first-degree murder and conspiracy to commit murder and/or robbery.
I do not agree that the convictions for conspiracy to commit burglary and/or grand
See Honeycutt v. State,
NRS 51.105.
Petrocelli v. State,
Dissenting Opinion
agrees, dissenting:
I would affirm the judgments of conviction entered below against appellants on all counts.
I. Severance of charges
The majority holds that the district court abused its discretion by failing to sever the “Casey” counts against Tabish from those filed against appellants in connection with the murder of Lonnie Theodore Binion. I disagree.
A district court’s decision to join charges is governed by NRS 173.115.
A. Factual predicate supporting joinder
The district court in my view properly refused to sever the “Casey” charges from the “Silver” and “Binion” charges because the factual underpinnings of both supported the State’s theory that appellants engaged in a common scheme or plan to kill Theodore Binion for monetary gain. Substantial evidence in the record in aid of all three sets of charges suggests that these appellants harbored individual and joint motivations for the fatal attack on Binion.
Proofs generated in support of the Casey charges against Tabish revealed the circumstances surrounding Tabish’s takeover of the Jean Sand Pit, a marginally funded financial endeavor with the potential for profits in the millions of dollars. The attempts at acquiring and operating the pit described by trial witnesses demonstrated Tabish’s dire financial circumstances and his need for substantial sums of money that he did not have available for an investment of that magnitude. A fair reading of the evidence supports the State’s theory that his goal was to acquire Binion’s stockpile of silver bars, worth approximately $8 million, and that Murphy, whose relationship with Theodore Binion had deteriorated and was possibly ending, harbored images of marriage to Tabish. Trial evidence also strongly suggests that she joined with him in the enterprise to murder Binion to preserve and secure testamentary gifts of the Binion residence and $300,000 in cash assets, as well as substantial proceeds from a life insurance policy on the life of Theodore Binion. The jury was thus entitled to conclude that Tabish needed financing for the sand pit enterprise, that Murphy wanted to preserve her financial well-being via Binion’s last will and testament because her relationship with Binion was about to end, that both Tabish and Murphy sought to come out of the scheme as a couple, and that none of this could be successfully accomplished with Binion alive. Certainly, thе State was permitted the inference that Tabish’s illicit relationship with Murphy facilitated her complicity in this murder.
I recognize that other trial evidence supported the defense theory that other avenues were available to Tabish, short of murder, to exploit his commercial interests in the sand pit. For example, at least one witness indicated that Tabish’s trucking business and the Jean Sand Pit were viable although financially strapped. This was certainly a permissible inference from the evidence that undermined a portion of the State’s overall case based upon the “Casey” counts. However, the totality of the evidence introduced at trial entitled the jury to reject the defense evidence and conclude that the pit was part of the scenario that motivated appellants to commit murder.
To me, joinder of the Casey and Binion charges provided an explanation as to why Tabish chose to kill Binion, instead of merely running off with Murphy. Had such an elopement occurred, Tabish would have been forced to forego his attempt to appropriate Binion’s silver; and Murphy would have forfeited the lifestyle she enjoyed with Thеodore Binion, as well as a substantial portion of the bequests in his last will and testament.
B. Cross-admissibility
Joinder of criminal counts is permissible in situations where the evidence in one count is cross-admissible between counts.
As noted by the majority, admissibility under NRS 48.045(2) of other “bad acts” as non-character evidence, i.e., to demonstrate motive, must be analyzed under our decision in Tinch v. State.
In my view, ample evidence was generated at trial demonstrating the intertwined motives of these appellants, centering around their desires to join as a couple and effect their joint financial security via Binion’s wealth and the economic potential of the sand pit operation. Thus, I have concluded that the probative value of the Casey evidence was substantial and not outweighed in any respect by a potential for unfair prejudice.
C. Prejudicial joinder
As indicated, both appellants argue that the refusal to sever the Casey and Binion counts mandates reversal. Murphy argues additionally that the case against her should have been tried separately.
In certain situations, joinder of charges or defendants, although proper, may result in prejudice to the defendants.
The majority concludes that the refusal to sever the Casey and Binion counts requires reversal in light of the State’s closing arguments intertwining the Casey and Binion evidence, the lack of probative value of the Casey evidence on the question of motive, and the graphic nature of the Casey evidence. I disagree.
First, as noted above, I am of the view that the Casey evidence was admissible on the issue of motive as to both defendants and that, accordingly, joinder of the Casey counts as to Tabish had no prejudicial effect on either appellant.
Second, as to Murphy, thе district court repeatedly instructed the jury that it could not in any way consider the evidence in support of the Casey counts in determining Murphy’s guilt in connection with the Binion-related counts. Here, the majority adopts Murphy’s argument that the State’s intertwining of the evidence supporting both sets of charges “ guarantee[d]” that the jury would violate the admonition. In my view, because the State should have been free to intertwine the two sets of counts in terms of arguing motive and common scheme, the cautionary instruction was actually overly broad in its attempts to protect Murphy. To me, the admonitions should have been narrower in scope, advising the jury that the Casey evidence was relevant only to the issues of common scheme and motive. Thus, Murphy obtained a particular benefit to which she was not entitled, a cautionary instruction that excluded any consideration of the Casey evidence against her.
In any event, I believe that the Casey evidence was admissible against both appellants with regard to the Binion and Silver charges. Thus, I am of the view that the district court committed no error with regard to its cautionary instruction in connection to Murphy and that the State properly attempted to intertwine the three sets of criminal charges as to both appellants.
D.. Judicial economy
When determining whether a district court abused its discretion in deciding issues of joinder, this court “ ‘must consider not only the possible prejudice to the defendant but also the possible prejudice to the Government resulting from two time-consuming, expensive and duplicitous trials.’ ”
II. Criminal agency
I agree with the majority that the State provided sufficient proof at trial of criminal agency as the cause of Binion’s death. I take this opportunity to expand upon the majority analysis.
As noted by the majority, to establish corpus delicti, “ ‘two elements must be established (1) the fact of death; and (2) the criminal agency of another responsible for that death.’ ”
In Sheriff v. Middleton, we held:
Although medical evidence as to the cause of death is often critical in establishing that a death occurred by criminal agency, there is no requirement that there be evidence of a specific cause of death. The state is required only to show a hypothesis that death occurred by criminal agency; it is not required to show a hypothesis of a specific cause of death.18
Based on our prior holding in Middleton, it was not necessary that the State prove the exact cause of Binion’s death. The State was only required to prove that the victim’s death was directly caused by criminal agency. Although there was conflicting evidence on this issue at trial, competent expert testimony was admitted that supports the jury’s implied finding through the guilty verdicts that Binion’s death was occasioned by a criminal agency.
The State presented testimony from Chief Medical Examiner for Clark County, Dr. Lary Simms, and forensic pathologist Dr. Michael Baden, who has conducted over 20,000 autopsies. Both Doctors Simms and Baden concluded that Binion’s death was caused by criminal agency. Dr. Baden concluded that Binion’s death was the result of “burking.”
‘ ‘Where conflicting testimony is presented, the jury determines what weight and credibility to give it,”
Appellants rely heavily on Azbill v. State
Here, as indicated, the State introduced competent expert testimony that Theodore Binion died as a result of a criminal agency. Thus, Azbill provides no sustenance to appellants’ claims in these proceedings.
III. Hearsay statement
At trial, the district court allowed the State to elicit a hearsay statement allegedly made by Binion to 'his estate attorney, James Brown, Esq., during a phone conversation the day before his death: ‘ ‘Take Sandy [Murphy] out of the will if she doesn’t kill me tonight. If I’m dead, you’ll know what happened.” The statement was admitted by the district court under NRS 51.105(1):
A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily health, is not inadmissible under the hearsay rule.
In Shults v. State,
Appellants placed Binion’s state оf mind in issue when they contended at trial that he may have been suicidal or accidentally killed himself through a drug overdose. The Binion hearsay statement thus took on considerable importance and was highly probative to refute the alternative theories concerning cause of death proffered by the defense. There was no question that the evidence was admissible, but only for non-hearsay purposes — to prove state of mind — a lack of suicidal ideation; not as proof of an “accusation from the grave.” Thus, admission under the state of mind exception does not provide a general license to argue the truth of the content of the statement; again, it is simply admissible for non-hearsay purposes.
At the outset, I would observe that the record is somewhat muddled as to whether the defense perfected and preserved its objections concerning admission of the statement, its use by the State in closing argument, and the failure of the district court to give the limiting instruction under Shults. Thus, a brief statement of the procedural history of the litigation of this issue is in order.
Appellants first submitted written briefs on the admissibility of Brown’s statement, in which they essentially conceded admissibility under the “state of mind” exception, but requested a limiting instruction concerning its probative value. The parties also orally argued the issue in limine on two occasions, once during jury selection and again before opening statements.
At the first orаl argument, defense counsel again agreed that the statement was perhaps admissible under the so-called “state of mind” exception to the hearsay rule, and again argued that the district court give a limiting instruction admonishing the jury that it could not consider the statement for the truth of its contents. The State, erroneously in my view, argued that the probative value of Brown’s statement was not so limited and that the jury should be allowed to consider the statement for the proof of the matters asserted in the statement. Rather than give a final determination on the question of admissibility and the prospect of giving the limiting instruction, the court deferred ruling pending further study.
At the second oral argument on the issue, heard before opening statements, the defense argued that the State be prevented from mentioning the Brown hearsay statement because it was too early to determine whether the defense case would require its admission. The State reiterated its erroneous position that the statement was admissible for the truth of its content, and the defense reiterated the correct position that the probative value of the evidence was limited and that the court should admonish the jury accordingly. Interestingly, in making a partial ruling at the second hearing, the district court referred to the Shults decision, performed a weighing analysis in determining admissibility under NRS 51.105, allowed the State to mention Brown’s testimony in its opening statement, but did not further mention or make any orders concerning the issue of whether a limiting instruction should be given at any point. Further, in a subsequent written order, apparently memorializing its ruling on the issue at the second hearing in open court, the district court simply observed, “The State will be allowed to use the Jim Brown statements which are an exception to the hearsay rule, and found to be admissible evidence.” No comment regarding a limiting instruction is contained within this written order, prepared by the State for the district court’s signature.
At trial, Mr. Brown testified without further objection from the defense and without further request for a limiting instruction. There is likewise nothing in this record reflecting an attempt by the defense during final settlement of jury instructions to obtain a limiting instruction concerning the probative value of the statement.
By way of further history, under the procedural doctrine governing trials at the time of the trial of this matter, it was incumbent upon the defense to continue tо object to admissibility of the evidence at trial without the required cautionary instruction, and to object to the line of argument proffered by the State in summation. Until our December 2002 decision in Richmond v. State,
Applying Richmond, I first note that the district court definitively ruled that the statement was admissible under NRS 51.105, a ruling with which neither the appellants or the majority take basic issue. However, the district court never made a definitive or explicit ruling as to whether a limiting instruction should be given. Referring to the oral ruling at the second hearing concerning admissibility of the statement:
The Court finds that the alleged conversation that Jim Brown had with Ted Binion on September 16th, 1998, does fit under the state of mind exception of NRS 51.105. Additionally, under Shults versus State,96 Nev. 742 , the Court finds the statements to be a relevant [sic] issue, weighted against the prejudice. The victim’s extrajudicial declaration to Mr. Brown that day, of his desire to remove Ms. Murphy from his will, along with his revelation that “if I am dead, you will know what happened,” are admissible under the state of mind exception to the hearsay mle, due to its being relevant to a material issue in the case subject to a motion to strike if something comes up down the road, the Court is going to allow that and allow Mr. Roger to indicate that in his opening statement.
This is the last verbal observation of record by the judge in this regard. There is no mention of the issue of the limiting instruction in the court’s oral or written orders, much less a definitive or final ruling on the giving of a limiting instruction. Going further, no contemporaneous objections to the testimony or to the rhetorical use of the evidence in the State’s summation were forthcoming. Thus, even under the new preservation rule of Richmond, appellants’ objections to admission of the statement without a limiting instruction and the expansive use of the hearsay statement in summation have been waived. The question then becomes whether the failure to give the limiting instruction compels reversal under a plain error analysis.
B. Plain or harmless error
I would not reverse on a plain error analysis because appellants’ failure to object can
Hearsay errors, including a failure to comply with Shults, are subject to a harmless error analysis.
It cannot be disputed that, once admitted, this evidence was dramatic and it negatively affected, i.e., prejudiced, the defense position. As stated, however, the district court could only reject admissibility based upon “unfair” prejudice. Because the defense took the position that Binion’s demise may have been occasioned accidentally or by suicide, the evidence was clearly admissible. While I recognize that our case authority required the cautionary instruction to reduce the chance of unfair prejudice, the admonition would not have affected the outcome because an overwhelming body of trial evidence supports these convictions.
First, although the evidence concerning criminal agency was in conflict, the State provided a very plausible theory of suffocation as the cause of death. Second, the State introduced a substantial body of circumstantial evidence in support of appellants’ complicity in Theodore Binion’s death. In general, although appellants never actually “confessed” to murdering Binion, they made numerous statements to witnesses from which guilt could be inferred, which were likewise corroborated by additional witnesses. Also, the financial and personal motives of appellants to conspire together to kill Binion certainly augmented the case against them.
More specifically, witnesses testified to appellants’ suspicious conduct, including Murphy’s discharge of the maid on the day of Binion’s demise, the unusual closure of window draperies at the Binion residence that day, absence of valuables from the premises before police took control of the residence as a crime scene, and marked differences in the almost incessant phone activity between appellants on the day of Binion’s demise.
Also, a substantial body of evidence was introduced confirming Tabish’s severe financial problems, including previously defaulted debts totaling hundreds of thousands of dollars, a $200,000 note to Bank West due for payment on September 18, 1998, and federal tax obligations approximating $1 million, all of which motivated the theft of Binion’s silver bars. Witnesses provided evidence of Tabish’s discussions with third parties concerning plans to kill Binion; particularly, solicitations of witness Kurt Gratzer to come from Montana to Las Vegas to kill a heroin addict who was dating an ecdysiast. Although subject to attacks on his own credibility, Casey testified that Tabish bragged about an illicit relationship with Murphy, that he was using her to get at Binion’s valuable silver collection, and that he was going to accomplish his goals by “pump[ing] him [Binion] full of these drugs.”
As to Murphy, uncontradicted evidence demonstrated her virtual total economic dependence on Binion and her desire to maintain her newly acquired lifestyle despite her
The State also bolstered its case as follows. First, witnesses testified to Murphy’s questionable statements to third parties prior to Binion’s death that Binion would be dead in a few weeks from an overdose and she would be left with nothing. Second, a videotape of Murphy at the Biniоn residence showed her secreting a wine glass in her purse at a time when investigators were concerned as to whether a mixture of prescription drugs and heroin poisoned Binion. Third, Tabish gave a preposterous story to law enforcement about his presence at the Pahrump Valley vault and made inconsistent statements to Nye County law enforcement at the scene of the vault about the presence of the silver bars in his truck. Finally, Tabish’s instructions to witnesses after his incarceration concerning prospective testimony, along with the promise of financial rewards, abundantly demonstrated his consciousness of guilt.
Thus, given proof of criminal agency, the State produced substantial rebuttal to the defense claims that Binion committed suicide. As pointed out by the State, it seems a wholly unlikely coincidence that Binion killed himself as he was ending the relationship; on the last day that appellants could gain access to his wealth; at a time when he was making plans to restore his gaming license, invest in real property and become involved in a statewide political race via a substantial monetary contribution to a major gubernatorial candidate; and, most tellingly, on the very last day before Tabish’s $200,000 debt to Bank West was due.
CONCLUSION
First, the State elicited competent evidence establishing criminal agency. Second, severance was not required because the evidence in support of the Casey counts against Tabish was admissible on the issue of common scheme and motive against both appellants in connection with the Binion charges. Third, because of a substantial body of evidence in support of the guilt of both appellants, the failurе to give a limiting instruction with regard to Binion’s hearsay statement did not affect the outcome of the trial.
I again recognize that the parties below provided the jury with conflicting evidence bearing on the guilt or innocence of these appellants. However, the trial record supports the State’s theory that a helpless benefactor was the victim of a pitiless attack by a pair of mercenary opportunists. It is also apparent that the financial ambitions of these appellants far exceeded their capabilities, thus providing a motive for taking what they could not obtain through their own individual or joint resources.
In light of the above, I would affirm the judgments of conviction.
NRS 173.115 provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Honeycutt v. State,
Robins v. State,
See Mitchell,
NRS 48.045(2) states in part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Id.
NRS 174.165 states in part:
1. If it appears that a defendant or the State of Nevada is prejudiced by a joinder of offenses or of defendants in an indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severancе of defendants or provide whatever other relief justice requires.
Honeycutt,
Lisle v. State,
Id. (quoting Jones v. State,
Id.
Lisle,
In line with my conclusions that no error occurred from the district court’s refusal to sever the Casey and Binion-related charges, I agree with the majority that appellants should be tried together on remand and that the Casey counts against Tabish be affirmed.
Frutiger v. State,
Sheriff v. Middleton,
Azbill,
The term “burking” was named after William Burke, who along with an accomplice in 1815, killed a number of people and sold their bodies to medical schools in Edinburgh, Scotland. Burke and his accomplice would follow and kill intoxicated individuals by one of them holding a hand over the victim’s nose and mouth, while the other would sit on the victim’s chest until he or she died of asphyxia.
Braunstein v. State,
Dorsey v. State,
Id. at 353,
Id.
I agree with the majority that the district court correctly instructed the jury that it need not reach unanimity on the mode of criminal agency in order to convict appellants on the charges lodged in connection with the murder of Binion.
See Fed. R. Evid. 803(3) advisory committee’s notes.
Trial transcripts confirm that a packet of proposed jury instructions submitted by appellants marked “A” through “Y” were made part of the record below. However, this packet was not included as part of the record in this appeal. Further, no argument concerning a proposed Shults instruction is reflected in the transcript of the proceedings during which jury instructions were settled. Finally, no argument was made in the course of this appeal that the packet of instructions marked “A” through “Y” contained any reference to a limiting instruction concerning the hearsay statement.
Murphy’s counsel conсeded at the oral argument on this appeal that Binion’s hearsay statement was at least theoretically admissible to demonstrate his state of mind, i.e., that he was not suicidal. He correctly stressed, however, that the State improperly argued the statement for the truth of its content.
Id. at 929,
Id. at 932,
See NRS 178.602.
See Rowland v. State,
Notwithstanding my conclusion that the assignment of error concerning this issue was waived, I have determined to reach the merits of the claim because of the efforts made by the defense concerning this issue and because of the ambiguous nature of the record of the trial judge’s ruling under NRS 51.105.
I take this opportunity to separately comment upon appellants’ claim that jury misconduct requires reversal for a new trial. To me, the claims that the jury applied an improper standard for guilt, i.e., depraved indifference, and a theory of guilt by omission, i.e., that the defendants did nothing to aid Theodore Binion as he lay dying, improperly require us to delve into the thought processes of the jurors in violation of NRS 50.065(2). As to the claims of juror misconduct in connection with the use of a palm pilot computer, this improper action did not, in my view, affect the jury’s verdict.
Although I have not provided an analysis of the remaining claims of error, given the overwhelming evidence of guilt of these appellants, I have concluded that the remaining claims do not compel reversal.