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Hollaway v. State8/23/2000
nsibilities in assessing the evidence during the penalty phase.
The record before us exhibits sufficient evidence to support the conviction for first-degree murder. However, it also reveals a number of potential mitigating factors. For example, there was substantial evidence that Hollaway was remorseful following the murder. There was extensive evidence that alcoholic intoxication played a major role in the crime. The record also showed that Hollaway and Whiting had been arguing incessantly when the killing occurred. Further, the crime did not threaten or endanger any other persons. Also, Hollaway did not flee or conceal the crime in any way or deny his actions; rather, he immediately reported the crime and admitted his guilt.
None of this in any way excuses or justifies Hollaway's crime, nor does any of this necessarily render Hollaway death "ineligible," but it could provide a basis for jurors to find the crime mitigated and impose a less severe sentence. As explained below, due to Hollaway's refusal to present any case in mitigation, the prosecutors' arguments, and the jury instructions, jurors may have erroneously concluded they were not required or even permitted to determine for themselves whether any mitigating circumstances existed. Even where no mitigating circumstances are presented at the penalty phase, the jurors may consider any evidence presented in the guilt phase that may indicate that a penalty less than death is appropriate.
At the end of the penalty phase, in Hollaway's only statement to the jurors, he told them: "As far as the special verdict for the mitigating circumstances, defense is not alleging any mitigating circumstances, so I don't see that you need to bother with that at all." The prosecutors also argued that no mitigating circumstances existed. In final closing argument, the prosecutor told the jurors: "If you determine that there are not mitigating circumstances, and he has offered none and told you there are none, simply sign the form with no checks in any of the boxes or on any of the lines." This is what the jury did.
The jury was not instructed in the penalty phase that statements, arguments, or opinions of counsel or a party were not evidence in the case and that regardless of such statements, arguments, or opinions, its deliberations were to be governed by the evidence as it understood and remembered it and by the law as given it by the court. Cf. Flanagan v. State, 112 Nev. 1409, 1420, 930 P.2d 691, 698 (1996). The instructions directed the jury to determine whether any mitigating circumstances existed, but also informed the jury that it only needed to consider evidence "that the Defendant proffer as a basis for a sentence less than death."
The United States Supreme Court has held that 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." Penry v. Lynaugh, 492 U.S. 302, 328 (1989). In Penry, the absence of instructions informing the jury that it could consider and give effect to certain mitigating evidence caused the Court to conclude that
"the jury was not provided with a vehicle for expressing its "reasoned moral response" to that evidence in rendering its sentencing decision. Our reasoning in [Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982),] thus compels a remand for resentencing so that we do not "risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty."" Id. (quoting Lockett, 438 U.S. at 605).
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