EDWARD LEE BEETS, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 20694
SUPREME COURT OF NEVADA
December 20, 1991
Rehearing denied March 3, 1992
107 Nev. 957 | 821 P.2d 1044
Accordingly, we conclude that there was no error below and affirm the decision of the district court to uphold the Commission‘s opinion.
Morgan D. Harris, Public Defender and Stephen J. Dahl, Deputy Public Defender, Clark County, for Appellant.
By the Court, MOWBRAY, C. J.:
Appellant Edward Beets was Vanita Hames’ boyfriend for approximately four months. Sometime after Christmas 1988, Vanita broke off her relationship with appellant. Vanita lived in North Las Vegas with her mother, Oretha Hames, aged 71, her daughter, Nicole, aged 7, and her son, Christian, aged 1 1/2.
At approximately 3:00 or 4:00 a.m. on March 10, 1989, Vanita awoke to find appellant standing over her. Vanita asked appellant what he was doing there and, when he did not reply, she ran out of her room to the kitchen to use the telephone. The telephone did not work as the telephone lines leading into the home had been cut.
Vanita then saw appellant walk toward her, enter her bedroom, and re-emerge with a pillowcase which had been in the linen closet. Appellant withdrew a hammer from the pillowcase, which Vanita recognized as one she kept in a kitchen drawer with other tools. Appellant chased Vanita through the living room, caught her and hit her on her back two or three times with the hammer. Vanita heard her mother, Oretha, yell, “What‘s going on in there.” Oretha then opened her bedroom door, saw appellant, and told him to stop and get out. When Oretha walked toward appellant, he hit her with the hammer once on the top part of her body and she fell.
Vanita crawled around the furniture in an attempt to get away from appellant, but he caught up with her in the hallway and dragged her into the bathroom. Vanita was crying and screaming and appellant told her to be quiet before she woke up the children. Vanita could hear her mother moaning and having difficulty breathing. Inside the bathroom, appellant again hit Vanita with the hammer, including a blow to the back and a blow which broke her arm. Appellant then tied Vanita‘s hands and feet with a torn
About ten minutes later, appellant returned to the bathroom with a sofa cushion which he placed under Vanita‘s broken arm. Appellant then untied her, opened his fly, and took off her underpants. Appellant knelt between Vanita‘s legs and waved the hammer around as if he was going to hit her between her legs. He then turned the end of the hammer around and stuck the handle up her vagina.
Appellant left the bathroom with the door open and returned about a minute later with a kitchen knife. Appellant told Vanita he was going to kill her and then himself. Appellant knelt in front of her and, with both hands on the knife, stabbed her near her left breast. Appellant threw the knife down, turned off the bathroom light, and left, closing the door.
About ten minutes later, Vanita heard appellant walk toward the children‘s room. Vanita felt around for the knife, left the bathroom, and lunged at appellant with the knife. Appellant knocked the knife out of her hand and hit her across the face with his fist. He again dragged Vanita to the bathroom, pushed her down and, with the hammer, hit her on the knees and on the side of her head. Appellant closed the bathroom door and left. After a few minutes, Vanita heard her daughter crying and heard her say, “No, no.”
Vanita got up and went to her daughter‘s room and found Nicole lying on the bed with her ankles tied. Vanita went into the kitchen to get a knife to cut the bindings. Vanita gave the knife to Nicole, who cut the bindings, and told Nicole to go to a neighbor‘s house for help. Vanita then went into the living room where she found her mother lying face down on the floor. She turned her over and knew she was dead.1
Nicole testified regarding appellant‘s acts in her bedroom. Appellant entered Nicole‘s bedroom with no clothes on. He climbed into bed with Nicole and removed her underwear. Appellant then laid on top of Nicole and stuck his finger and penis in her vagina. Appellant left the room and returned a few seconds later and tied her arms and legs. Appellant then left again.
As a result of her injuries, Vanita still could not lift her wrist at trial on August 1, 1989, due to nerve damage. Vanita testified she did not know if she would be able to use her wrist again.
Appellant was charged with the following: burglary; first degree murder with use of a deadly weapon, victim 65 years of age or older; attempted murder with use of a deadly weapon;
At the close of the State‘s case at trial, appellant moved to dismiss the kidnaping and mayhem charges. The district court denied the motion as to both charges. The jury found appellant guilty on all counts. At the penalty hearing, the State introduced two judgments of conviction, one for robbery in April 1980, and one for burglary in April, 1985. The defense called witnesses who testified that appellant suffered several serious head wounds as a child and testified regarding appellant‘s good character.
The jury was deadlocked and unable to reach a verdict after the penalty phase. In an order filed August 15, 1989, we ordered a three-judge panel to conduct a penalty hearing pursuant to
The three-judge panel found no mitigating circumstances and the following four aggravating circumstances: (1) the murder was committed by the defendant while under a sentence of imprisonment, to wit: Burglary; (2) the murder was committed by the defendant who was previously convicted of a felony involving the use or threat of violence to another, to wit: Robbery; (3) the murder was committed while the defendant was engaged in the commission of sexual assault; and (4) the murder was committed while the defendant was engaged in the commission of burglary. On November 7, 1989, appellant was sentenced to death.
On appeal, appellant contends: (1) insufficient evidence of premeditation was presented to support the conviction of first degree murder; (2) the district court erred in denying his motion to dismiss the kidnaping charge; (3) insufficient evidence was presented to support the mayhem conviction; (4) the reasonable doubt instruction was unconstitutional; and (5) three of the aggravating circumstances provided to the jury were improper and constituted prejudicial error. For the reasons stated below, we conclude that all of appellant‘s contentions lack merit.
Appellant first contends that the evidence adduced at trial was
Appellant next contends the district court erred when it denied his motion to dismiss the first degree kidnaping charge. Appellant argues that he was charged with kidnaping Vanita for the purposes of committing sexual assault, pursuant to
In Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988), overruled on other grounds Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), we concluded that the physical restraint of the victim is sufficient to establish kidnaping as an additional offense. Moreover, we further stated: “[t]he kidnaping was not incidental to the extortion because the restraint increased the risk of harm. Finally, the restraint had an independent purpose and significance as it was essential to the accomplishments of mayhem.” Id. at 354, 760 P.2d at 105. We thus conclude that the act of binding Vanita‘s hands and feet was sufficient evidence to establish the kidnaping charge since these acts increased the risk of harm to Vanita and had independent significance with regard to appellant‘s ability to commit the sexual assault.
Appellant next contends there was insufficient evidence adduced at trial to support the mayhem conviction because there was no evidence presented that Vanita‘s arm injury was permanent.
Appellant argues the only evidence presented regarding the injury was Vanita‘s testimony that she had nerve damage and had not regained full ability to lift her wrist at the time of trial. We have previously stated: “Whether the victim is disfigured, and whether the disfigurement is permanent, are questions of fact for the jury.” Lomas v. State, 98 Nev. 27, 29, 639 P.2d 551, 552 (1982). We conclude that the jury had sufficient evidence to find that Vanita‘s injuries were permanent. See Wilkens, 96 Nev. at 374, 609 P.2d at 313 (1980).
Appellant next contends that Jury Instruction No. 32, which instructed the jury on reasonable doubt, is unconstitutional.3 We recently upheld the identical instruction in Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991). We decline appellant‘s invitation to re-examine our holding in Lord.
Finally, appellant challenges the instructions regarding three aggravating circumstances that were given to the jury during the first penalty hearing. We conclude that there was no prejudicial error.
Jury Instruction No. 46 contained the aggravating circumstances alleged by the State. Alleged aggravating circumstance No. 1 stated that the “murder was committed by a person under sentence of imprisonment, to wit: Robbery.” In support of this allegation, the State offered two judgments of conviction during the penalty phase: an April 1980 robbery conviction and an April 1985 burglary conviction.
At the second penalty hearing before the three-judge panel, the State again offered the aggravating circumstance. At that time, the court pointed out that a pre-sentence report, previously admitted during that proceeding, indicated the robbery conviction had expired on July 18, 1987. Upon motion of the State, the court then amended the instructions to read “to wit: Burglary.”
Appellant contends that, since he was not under a sentence of imprisonment for robbery when he committed the murder, the court erred in giving Jury Instruction No. 46. We conclude that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1966). Appellant was under a sen-
Aggravating Circumstance No. 3 in Jury Instruction No. 46 stated that “[t]he murder was committed while the person was engaged in the commission of or an attempt to commit any sexual assault.” Appellant contends that the aggravating circumstance is unsupported by the evidence because, although appellant did commit a sexual assault, he did not kill the sexual assault victim. We conclude that
In the present case, appellant murdered Oretha Hames in the commission of a sexual assault against Vanita. Since
Appellant lastly contests the validity of the aggravating circumstance based upon depravity of mind.4 Appellant‘s contention has merit.
This court recently addressed the constitutionality of an aggravating circumstance based upon depravity of mind. See Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert. denied, 499 U.S. 970 (1991). In Robins, we construed
Despite our rejection of the aggravating circumstance based upon depravity of mind, we are convinced that the sentence of death should stand because of the weight properly accorded to the remaining, valid aggravating circumstances. The murder was committed in basic conjunction with a brutal sexual assault. Also, at the time of the murder, appellant was under sentence of imprisonment for burglary. Considering these circumstances, and the lack of any mitigating circumstances whatsoever, we conclude that the infirm aggravating circumstance based upon depravity of mind is harmless beyond a reasonable doubt.
Appellant‘s remaining contentions are meritless.5 We therefore affirm appellant‘s conviction and sentence of death.
SPRINGER, J., concurring:
I concur in the majority‘s result in affirming the conviction in this case. With regard to the penalty hearing, I again concur with the majority‘s result, but for different reasons from those stated in the majority opinion.
The sentencing panel concluded that there were no mitigating circumstances and that there were four aggravating circumstances. I do not think that any of the claimed errors relating to jury instructions given at the penalty hearing have any bearing on this appeal, as any error in sentencing by the jury is superseded by the proceedings before the three-judge panel. I do not subscribe to any claim by Beets to the effect that if there had not been error at the jury penalty hearing, it would not be necessary for the three-judge panel to have heard the matter at all. The three-judge panel did hear and decide the penalty matter; therefore, I discuss only error that might have infected the three-judge hearing. I conclude that there was no error.
Of the four aggravating circumstances found by the three-judge
ROSE, J., concurring:
I concur with the majority in its reasoning and conclusions in affirming the results of the guilt and penalty phases of this case. I am concurring to address the concern JUSTICE YOUNG has expressed in his dissent regarding
The jury convicted Beets of first degree murder, but was unable to agree upon the punishment to be assessed in the penalty phase, and the jury was declared deadlocked. At the penalty phase, the jury was instructed that three circumstances could be found to be aggravating to the first degree murder conviction. I agree with the majority‘s opinion that the only aggravating circumstance that was improperly presented to the jury was the instruction stating that depravity of mind could be an aggravating circumstance.
We have no idea why the jury deadlocked in this case and was unable unanimously to assess a penalty against Beets. The jury may well have rejected the improperly given aggravating circumstance of depravity of mind, or it may have deadlocked on that precise issue. At most, the improperly given aggravating circumstance could have prejudiced the defendant by contributing to an inconclusive result, thus requiring that the sentence be imposed by a three-judge panel.
At the subsequent penalty hearing before the three-judge panel, the findings were made of three aggravating circumstances. Only the aggravation for depravity of mind was improperly found. Given the gruesome facts of this case and that we will affirm a death penalty assessment even if one aggravating circumstance is properly found, see Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984), I have no problem in finding that a factual basis exists for the assessment of the death penalty.
The focus of our attention at a later time should be on
However, evidence on this issue was not presented by the parties in the proceedings below, nor has this issue been raised on appeal. Before deciding such an important issue, we should have an actual case and controversy from which to make a decision, along with the arguments of the prosecution and the defense. While the statistics cited by JUSTICE YOUNG support his conclusion, I would defer making this decision until the issue is formally presented to this court.
For the reasons stated, I concur with the majority‘s opinion and would affirm the death sentence assessed against Beets.
STEFFEN, J., concurring:
I concur in the majority opinion affirming Beets’ convictions and penalty, but feel compelled to address the non-issue raised by my colleague, JUSTICE YOUNG, in his dissent and tangentially credited by my colleagues JUSTICES SPRINGER and ROSE in their separate opinions. Unfortunately, statistics invite numerous conclusions in almost any area where they are used, and frequently the same statistics may be cited in support of diametrically opposite conclusions. I suggest that the conclusions reached by the dissenting justice are unreliable and simplistic. As a preface to my analysis of the dissent‘s conclusions, I will add to the chart supplied by my colleague, the following information:
CASE NAME
- PAINE. This matter is awaiting decision by this court. Factual basis for guilty plea and imposition of death penalty involved shooting two taxicab drivers in the head without provocation. The one driver survived, the other was killed.
- JONES. Factual basis for guilty plea involved shooting and bludgeoning the victim in the head in order to steal the victim‘s recreational vehicle. Sentencing panel heard eye-witness testimony of the daughter of two victims who were murdered in Florida by Jones.
REDMEN. This matter is awaiting decision by this court. Factual basis for conviction involved allegations of the “execution” of the male victim by shooting the victim three times, cutting off the victim‘s hands and disfiguring the victim‘s face with a piece of wrought iron. - BEETS. In this, the instant case, Beets bludgeoned and stabbed the one female victim to death, and stabbed and bludgeoned the other female victim and inserted the end of a hammer up her vagina. The latter victim survived.
- KIRKSEY. Beat his victim to death. Evidence admitted concerning other violent crimes, including a shotgun murder and the stabbing to death of his estranged girlfriend in California. State presented a letter written by Kirksey stating that if he had the power to bring life back to all his victims, he would do it so he could murder them again.
- BAAL. Repaid his victim‘s kindness in giving him money by stabbing her repeatedly, thus causing her death. Murder was committed in the course of a robbery and while Baal was under a sentence of imprisonment.
- FLANAGAN I & II. Flanagan strangled and beat his first victim to death and then dismembered the victim‘s body, placing the head, arms, legs, and chopped torso in garbage bags which he later deposited in dumpsters. He later met and strangled his second victim to death, taking his wallet and clothes and disposing of the body in a remote area.
- WILLIAMS. Broke into his victim‘s home while she was asleep. The young woman, who was eight months pregnant, was first tortured by Williams and then brutally stabbed thirty-eight times. The fetus also expired from a lack of oxygen resulting from its mother‘s death.
- MORAN I & II. Without warning or provocation, Moran shot two victims, a woman and a man. Each victim was shot four times. Moran also shot and killed his former wife nine days later. Moran was sentenced to death for all three killings, but we found the aggravating circumstances infirm as to the former wife and ordered that sentence reduced to life without possibility of parole.
- HILL. Killed an elderly, paralyzed woman by repeatedly thrusting a long, wooden stick into her rectum and vagina, perforating her vulva, perineal septum, sigmoid colon, and kidney.
- COLE. Murdered his female victim in Nevada by strangulation. Was also convicted by jury verdicts in the State of Texas with the murder of three female victims, each by strangulation.
- WILSON. Stabbed to death an undercover narcotics officer; evidence indicated that the victim pleaded for his life, but survived only approximately 20 minutes after being stabbed nine times. The body was taken to a remote area and buried in a shallow grave.
OLAUSEN. Participated with Wilson in the stabbing death of the undercover narcotics officer. The dissent failed to note, however, that this court eventually granted Olausen post-conviction relief for ineffective assistance of counsel, and upon resubmission to another three-judge panel, Olausen was sentenced to life without the possibility of parole. - FARMER. Killed his victim by repeated stabbings in furtherance of burglary and robbery.
- MERCADO. Strangled an inmate to death with a rope. The three-judge panel sentenced Mercado to life without the possibility of parole.
- PRICE. Involved with Mercado in the strangling of an inmate. Was sentenced by the three-judge panel to life with the possibility of parole.
- BISHOP. Shot two people while robbing a cashier at a casino. The one victim died; the other survived. At time of murder, Bishop was under a sentence of imprisonment for armed robbery in California. He had also been previously convicted of a felony involving the use or threatened use of violence to the person of another.
I have burdened this concurrence with abbreviated details of the homicides committed by each of the defendants appearing in the statistical chart provided by the dissent because I do not believe a purely statistical analysis without such detail can have any meaning. I also note that this court specifically determined, in Baal v. State, 106 Nev. 69, 787 P.2d 391 (1990), and Hill v. State, 102 Nev. 377, 724 P.2d 734 (1986), that Nevada‘s three-judge panel sentencing procedure under
In reviewing once again the nature of the crimes for which fifteen of the seventeen capital defendants identified by the dissent were sentenced to death, I am unable to perceive any basis for concluding that the fairness or objectivity of any of the three-judge panels is subject to serious doubt. Indeed, excluding the two cases as yet undecided by this court, the judgment of each of the sentencing panels has been reviewed by this court and affirmed.
Although we are keenly aware of the problems inherent in an elective system for selecting judges, I find no basis under the statistical data supplied by the dissent for concluding that any of the judges sitting on these cases betrayed their sworn duty to fairly and impartially apply the law. If the dissent‘s position has merit, then it must be equally clear that we, as appellate judges, have been equally lacking in the fair and impartial application of the law since we have reviewed and affirmed the decisions of each of the panels imposing death on the subject defendants. It appears
I suggest that the statistics cited by the dissent as evidence of bias on the part of three-judge panels in favor of death prove nothing of the sort. One need only review the details of each case resulting in the imposition of death to understand why both the three-judge panels and the members of this court on review found that the ultimate penalty was justified. Unless we have been mindlessly fulfilling our responsibilities, we have determined, after careful review in each of these cases, that “[n]othing contained in the record indicates that the sentence of death was imposed under the influence of passion, prejudice, or any arbitrary factor,” and that “the sentence of death is not excessive . . . considering both the crime and the defendant.” Hill, 102 Nev. at 380, 724 P.2d at 736. See
Moreover, the statistical conclusions reached by the dissent are inaccurate. There were actually 19 sentences (excluding the cases of Paine and Redmen which we have not yet decided) imposed by three-judge panels involving the defendants listed in the chart contained in the dissent. Moran was actually sentenced to death for each of the three killings, and this court ordered the one death sentence reduced to a sentence of life without the possibility of parole. Additionally, Olausen‘s capital sentence was vacated by this court after post-conviction proceedings and remanded for a new sentencing which included death as an option. The second three-judge panel sentenced Olausen to life without the possibility of parole. Based upon my computations, defendants appearing before three-judge panels have received sentences other than death in sixteen percent of the cases, not eleven percent as found by my dissenting colleague.
Furthermore, I am unable to fathom, given the real-life details involved in the murders involving these capital defendants, how anyone could objectively or empirically derive from these statistics the conclusion that they represent “dire statistical odds” that call into question the constitutionality of our sentencing procedures. Capital cases, which are comparatively few in number in the first place, are simply not susceptible to meaningful statistical analysis in a vacuum. Nor may a determination of the “odds” of
Significantly, the United States Supreme Court, in Spaziano v. Florida, 468 U.S. 447 (1984), affirmed a sentence of death imposed by the trial judge despite the jury‘s recommendation that the defendant received a life sentence. Pertinent to the instant subject is the following language from Spaziano:
The sentencer, whether a judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant and the sentencer‘s decision for life is final. . . . More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding—a determination of the appropriate punishment to be imposed on an individual. . . . The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue.
In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.
By way of summary, neither the United States Constitution nor the Nevada Constitution requires criminal defendants, including capital defendants, to be sentenced by a jury. Nor does either constitution permit only non-elected judges to participate in the sentencing process. Indeed, if it is constitutional for a single judge to override a jury recommendation of life and thereafter impose a sentence of death, then, a fortiori, it is certainly constitutional for three-judge panels who are not overriding jury recommendations, to impose capital sentences. Moreover, I view Nevada‘s system as enlightened, because it attenuates any “political” pressure on a single judge to impose the ultimate penalty.2 Finally, the conclusion I reach from the “statistics” presented by my dissenting colleague is that our three-judge panels are responsibly approaching the difficult task which they occasionally are called upon to perform in these very difficult, gut-wrenching cases. This court has officially agreed with the premise by almost invariably placing its imprimatur on the decisions reached by these panels.
Finally, I also part company with my dissenting colleague concerning his conclusion that
As noted above, I concur in the majority opinion affirming both the judgment of convictions pursuant to the jury‘s verdict, and the sentence of death imposed by the three-judge panel.
YOUNG, J., dissenting:
Respectfully, I dissent. I conclude that three aggravating circumstances provided to the jury at the first penalty hearing were improper and therefore I cannot join in the majority opinion affirming the sentence.
Preliminarily, I note that, because the jury was improperly instructed during the first penalty hearing, appellant must be afforded a new penalty hearing. The second penalty hearing before the three-judge panel did not serve to cure the errors. Appellant correctly argues that, if the jury had been properly instructed, the jury may have been able to sentence appellant and the matter may not have proceeded to the three-judge panel. Thus, I conclude that the errors at the first penalty hearing before the jury require a new penalty hearing before a jury.
Jury Instruction No. 46 contained the State‘s alleged aggravating circumstances. Aggravating Circumstance No. 1 stated “[t]he murder was committed by a person under sentence of imprisonment, to wit: Robbery.” In support of this aggravating circumstance, the State offered an April 1980 robbery conviction. At the second penalty hearing before the three-judge panel, it became clear that the robbery conviction had expired on July 18, 1987. Therefore, the instruction was incorrect because appellant was not under imprisonment for robbery when he killed Mrs. Oretha Hames. Hence, Aggravating Circumstance No. 1 had no basis in fact and was improperly presented to and considered by the jury. We have previously held that a penalty phase was flawed by reversible error where a jury found aggravating circumstances with no basis in fact. Jimenez v. State, 105 Nev. 337, 343, 775 P.2d 694, 698 (1989) (Jimenez I).
Aggravating Circumstance No. 3 in Jury Instruction No. 46 stated that “[t]he murder was committed while the person was engaged in the commission of or an attempt to commit any sexual assault.” Appellant correctly contends that the aggravating circumstance is unsupported by the evidence because, although appellant did commit a sexual assault, he did not kill the sexual assault victim. Rather, he killed someone else, whom he did not sexually assault. No evidence was presented at trial to suggest that appellant killed Oretha during the commission of, or during
Moreover, I conclude that construing
I turn now to the depravity of mind aggravating circumstance in Jury Instruction No. 46 and attendant Jury Instruction No. 47, defining depravity of mind. I conclude that instruction No. 46 was improperly given. We have recently stated that “we construe the instruction and the statute (
The majority‘s conclusion that the depravity of mind aggravating circumstance is harmless error is mistaken. While I maintain that two other aggravating circumstances were erroneously supplied to the jury, the fact remains that, had the jury not received even one erroneous aggravating circumstance, it might have been able to sentence appellant and the three-judge panel would not have been appointed. I am most reluctant to conclude that the error is harmless when the stakes are a person‘s life.
Lastly, I wish to remark on the constitutionality of
We have previously upheld
| CASE NAME | CITE/CASE#/YR. | PLEA/SPLIT JURY | SENTENCE |
|---|---|---|---|
| 1. PAINE | 21983 | Guilty Plea | Death |
| 2. JONES | 21796 | Guilty Plea | Death |
| 3. REDMEN | 21729 | Split Jury | Death |
| 4. BEETS | 107 Nev 957 (1991) | Split Jury | Death |
| 5. KIRKSEY | 107 Nev 499 (1991) | Guilty Plea | Death |
| 6. BAAL | 106 Nev 69 (1990) | Guilty Plea | Death |
| 7. FLANAGAN I | 105 Nev 135 (1989) | Guilty Plea | Death |
| 8. FLANAGAN II | 105 Nev. 135 (1989) | Guilty Plea | Death |
| 9. WILLIAMS | 103 Nev 227 (1987) | Guilty Plea | Death |
| 10. MORAN I | 103 Nev 138 (1987) | Guilty Plea | Death |
| 11. MORAN II | 103 Nev 138 (1987) | Guilty Plea | Death |
| 12. HILL | 102 Nev 377 (1986) | Split Jury | Death |
| 13. COLE | 101 Nev 585 (1985) | Guilty Plea | Death |
| 14. WILSON | 101 Nev 452 (1985) | Guilty Plea | Death |
| 15. OLAUSEN | 101 Nev. 452 (1985) | Guilty Plea | Death |
| 16. FARMER | 101 Nev 419 (1985) | Guilty Plea | Death |
| 17. MERCADO | 100 Nev 535 (1984) | Split Jury | Life Without |
| 18. PRICE | 100 Nev 535 (1984) | Split Jury | Life With |
| 19. BISHOP | 95 Nev 511 (1979) | Guilty Plea | Death |
Given these dire statistical odds, I have no alternative but to
The Court has stated: “In Furman v. Georgia, 408 U.S. 238 (1972), the Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.” Godfrey v. Georgia, 446 U.S. 420, 427 (1979). Further, the Court has stated that “[a] capital sentencing scheme must, in short, provide a meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.” Id. at 427 (citations omitted).
Nevada has a system of elected judges. If recent campaigns are an indication, any laxity toward a defendant in a homicide case would be considered a serious, if not fatal, campaign liability. With sixty-one people on death row, Nevada has the highest per capita number of inmates under sentence of death of any state. Candidates, almost without exception, seek to be known for their tough stances on crime. A three-judge panel statistically imposes the death penalty with far greater frequency than a jury.3 If through the element of caprice, the jury is unable to reach a decision in the penalty phase and determination of the penalty in a death case is given to a three-judge panel, the outcome is fairly predictable. This portion of Nevada‘s capital sentencing scheme, therefore, fails to distinguish cases in which the death penalty is imposed from those in which it is not.
Furthermore, Nevada and Indiana are the only jurisdictions in which a defendant may be sentenced to death by a judge after a jury is unable to unanimously sentence the defendant.4 In all other jurisdictions in which the jury sentences the defendant, after the jury is unable to reach a unanimous sentence, the judge must sentence the defendant to life without the possibility of parole.5 In
As far as the constitutionality of
Moreover, returning to the case at bar, the erroneous aggravating circumstances supplied to the jury may well have been the determinant factor in the jury‘s inability to sentence the appellant. Because of these erroneous instructions, therefore, appellant was then required to be sentenced by a three-judge panel which almost assuredly would sentence him to death. I am mindful that the appellant‘s acts in this case were particularly reprehensible. However, Justice Hugo Black appropriately wrote: “Bad men, like good men, are entitled to be tried and sentenced in accordance with law. . . .” Green v. United States, 365 U.S. 301, 309-310 (1961). The sentencing procedures utilized in this case were not in accordance with law because they contained a substantial risk that the punishment would be inflicted in an arbitrary and capricious manner.
In sum, I believe the three aggravating circumstances given to the jury were erroneous and require a new penalty hearing. I dissent because I cannot join the majority in affirming the sentence when the jury received these erroneous instructions and when the sentencing procedures used were of dubious constitutionality.