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Hollaway v. State8/23/2000
etion to appoint such counsel, and this court has so held. Harris v. State, 113 Nev. 799, 804, 942 P.2d 151, 155 (1997). Harris also states that a defendant who elects to represent himself does not have a constitutional right to advisory counsel and the court has no duty to appoint such counsel. Id. Furthermore, in this case Hollaway rejected the district court's express offer to appoint standby counsel. Therefore, the court did not err in failing to appoint standby counsel for Hollaway. Regarding the failure to present mitigating circumstances, this court has ruled that a capital defendant may waive the right to do so. See Colwell v. State, 112 Nev. 807, 811, 919 P.2d 403, 406 (1996).
Hollaway claims that NRS 177.055(2) unconstitutionally precludes this court from considering mitigating evidence when reviewing a death sentence. This claim is meritless. NRS 177.055(2)(d) requires this court to consider: "Whether the sentence of death is excessive, considering both the crime and the defendant." (Emphasis added.) This provision not only permits but requires this court to consider any mitigating evidence when determining whether a death sentence is excessive.
II. Mandatory review of the death sentence: the influence of prejudicial and arbitrary factors
NRS 177.055(2) requires this court to review every death sentence and consider in addition to any issues raised on appeal:
"(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the defendant."
We are also cognizant that because the death penalty is unique in its severity and irrevocability, this court must carefully review every death sentence to minimize the risk that the penalty is imposed in error or in an arbitrary and capricious manner. Cf. Spaziano v. Florida, 468 U.S. 447, 460 n.7 (1984).
Pursuant to NRS 177.055(2)(c), we conclude that imposition of Hollaway's sentence was improperly influenced in three ways. We therefore set aside Hollaway's sentence and remand for a new penalty hearing. See NRS 177.055(3).
First, during his final closing argument the prosecutor was asking "how deep, deep into this man's being does this violence run," when Hollaway's electronic stun belt was set off. This completely disrupted the proceedings, requiring the jurors to leave the courtroom. When they returned, they were informed that Hollaway was wearing an electronic stun belt. The timing could not have been better to reinforce the image of Hollaway as an extremely violent man with whom authorities had to take exceptional security precautions. Hollaway did absolutely nothing to justify the belt's activation, and though it was apparently accidental, the State was solely responsible for the accident. Although the district court did its best to allay any prejudice arising from this incident, the incident remained an arbitrary and prejudicial factor which requires reversal of Hollaway's sentence.
Second, the prosecutor's statement to the jury that Whiting's family would have no more holidays with their daughter and their sister was improper. See Quillen v. State, 112 Nev. 1369, 1382, 929 P.2d 893, 901 (1996). The statement encouraged the jury to impose a sentence under the influence of passion: "holiday arguments" are meant only to appeal to jurors' emotions and arouse their passions. Id.
Third, under the circumstances of this case, we conclude that the jury required further instruction regarding its respo
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