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Hollaway v. State8/23/2000
or a party were not evidence in the case and that their deliberations were to be governed by the evidence as understood and remembered and by the law as given it by the court. However, the record reveals that the jury did receive such instruction during the guilt phase. Further, this court has never held that it is mandatory that such an instruction be given during the penalty phase and does not appear to do so now.
Next, the majority also concludes that under Penry v. Lynaugh, 492 U.S. 302 (1989), to ensure that jurors have reliably determined death to be the appropriate punishment for a defendant, "the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime." Id. at 328. However, the defendant in Penry, unlike Hollaway, offered mitigating evidence of his mental retardation and abused childhood in support of a sentence of life imprisonment as opposed to death. Id. at 320. The Court was concerned that the jury would be unable to give effect to that mitigating evidence under the instructions given in the case. Id. at 326. However, this is not the issue in the present case because Hollaway did not present any mitigating evidence. Therefore, I conclude that Penry is inapplicable to the instant case.
Here, the majority is imposing an additional burden upon the jury in considering whether mitigating circumstances exist by instructing the jury to make an independent and objective analysis of all the relevant evidence. I find this type of instruction unnecessary because the Nevada legislature has already spoken on this issue. NRS 175.554 provides in pertinent part:
If the penalty hearing is conducted before a jury, the court shall instruct the jury at the end of the hearing, and shall include in its instructions the aggravating circumstances alleged by the prosecution . . . . The court shall also instruct the jury as to the mitigating circumstances alleged by the defense upon which evidence has been presented during the trial or at the hearing.
If the legislature intended for the jury to conduct an independent review of all the evidence presented during both the guilt and penalty phases in a search for mitigating evidence, the legislature would have included such an instruction in this statute. Instead, the statute very clearly states that the court shall instruct the jury as to the mitigating circumstances alleged by the defense. In this case, there is no mitigating evidence to be considered because Hollaway chose not to present any. The majority goes beyond the intention of the legislature and places an additional and unnecessary burden upon our juries in cases in which the death penalty is sought.
Finally, Hollaway has made it clear that he wanted no defense presented at trial, nor did he want mitigating evidence presented during the penalty phase. In fact, Hollaway himself was not interested in actively pursuing this appeal. This being the case, it would appear that remanding to the district court for a second penalty phase is a useless, expensive, and time-consuming undertaking.
The new instruction imposed by the majority requires the jury to review the evidence presented during both the guilt and penalty phases. However, the jury impaneled on remand will presumably be a new jury that did not sit for the extensive presentation of evidence that occurred during the guilt phase. Additionally, the State will most likely introduce only the most damning and inculpatory evidence against Hollaway upon remand at the second penalty hearing. Finally, there is no indication that Hollaway has experienced a change of heart and now wishes to present mitigati
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