Killers ask for fourth trial

Tuesday, April 9, 1996 | 11:59 a.m.

CARSON CITY -- Dale Flanagan and Randolph Moore, sentenced to death three times by different juries in Las Vegas for the killing of Flanagan's grandparents, are asking for a fourth trial.

Defense lawyers Monday told the Nevada Supreme Court there was a failure to present adequate jury instructions at their last penalty hearing. And they want a new, full-blown trial on grounds that the issue of devil worship should have been excluded in the first trial.

This is the fourth time the case has been before the high court. After the first trial, the court overturned the sentencing hearing because of prejudicial remarks by the Clark County district attorney's office.

Flanagan and Moore were again sentenced to death by a jury in Las Vegas. The Nevada Supreme Court upheld the sentence but the U.S. Supreme Court ordered the Nevada court to take another look at the case in view of the remarks about devil worship by the two men. The Nevada court then ordered a new penalty hearing.

A third jury also handed down the death penalty to both men and the court heard arguments Monday.

David Schieck, attorney for Moore, said testimony of devil worship should have been excluded. But justices reminded Schieck that it was the defense attorney for another suspect who raised the issue of white and black magic.

Schieck said Flanagan and Moore should have been entitled to a separate hearing because of that issue. And he said the district attorney's office went too far in its final argument in commenting on Flanagan and Moore's "devil worshipping buddies."

Deputy Public Defender Michael Miller said the jury was never instructed on the elements of robbery and burglary that were used in deciding the aggravating circumstances against the two men in the third penalty hearing.

Even though they had been convicted of those two offenses, Miller said the jury must be instructed on those offenses. And when they were not, the two aggravating circumstances should have been invalidated, he said.

They want a new penalty hearing or the sentences reduced to life in prison.

But Deputy District Attorney James Tufteland told the court the two men had been convicted of robbery and burglary and instructions to the third jury were not necessary.

"The terms were not defined" to the third jury, Tufteland said. "But the concepts are not difficult to understand."

Tufteland argued the issue of devil worship was presented by a defense lawyer to convince the jury his client was under the influence of Flanagan and Moore.

But he said the comments by the prosecutor in his closing argument were innocuous. "It's true the prosecution made reference. It was better left unsaid. But it was passing references. He didn't dwell on satanism."

"The finding of the jury should not be disturbed," Tufteland said.

Flanagan, Moore, Johnny Luckett and Roy McDowell were convicted of the killing of Flanagan's grandparents, Carl and Colleen Gordon, in their home Nov. 6, 1984, in an effort by Flanagan to collect on their estate. Two others, Michael Walsh and Thomas Akers, pleaded guilty before trial.

Flanagan never got any money.

They broke a window to gain entrance. Colleen was shot three times in the head in her bed. Carl was shot seven times in the back and chest on the stairs.

Luckett, McDowell and Walsh got life terms. Akers received probation.

Schieck argued that Flanagan and Moore couldn't get a fair penalty hearing now with the passage of time. Both were 18 at the time of the killing and did not have any major criminal background.

Those were used as mitigating circumstances but Schieck said "They're not boys anymore." Both are in their 30s. "They could not get a fair hearing," Schieck said as he asked for life terms.

The court will rule later.