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Hollaway v. State8/23/2000
evidence, permitted by NRS 175.552(3), concerning "any other matter which the court deems relevant to sentence." Because evidence relevant to mitigation is broadly defined, this provision is of little practical benefit to the defendant. Normally, NRS 175.552(3) serves to permit the State to introduce evidence against the defendant which goes beyond the enumerated statutory aggravators, but this "other matter" evidence is restricted in its scope and use. It must be relevant, and its danger of unfair prejudice must not substantially outweigh its probative value. McKenna v. State, 114 Nev. 1044, 1051-52, 968 P.2d 739, 744 (1998), cert. denied, 120 S. Ct. 342 (1999). To be relevant, like mitigating evidence, it must relate "to the offense, defendant or victim." See NRS 175.552(3). Furthermore, under Nevada's statutory sentencing scheme, the State can offer this evidence for only one purpose: for jurors to consider in deciding on an appropriate sentence after they have determined whether the defendant is or is not eligible for death.
"Other matter" evidence is not admissible for use by the jury in determining the existence of aggravating circumstances or in weighing them against mitigating circumstances. See Middleton, 114 Nev. at 1116-17 & n.9, 968 P.2d at 314-15 & n.9. Such use of this evidence would undermine the constitutional narrowing process which the enumeration and weighing of specific aggravators is designed to implement. We therefore direct the district courts at capital penalty hearings to ascertain the purpose for which the State offers any evidence and to inform the jury of the evidence's proper use. Three purposes are proper: to prove an enumerated aggravator, to rebut specific mitigating evidence, or to aid the jury in determining the appropriate sentence after any enumerated aggravating circumstances have been weighed against any mitigating circumstances. When the State offers evidence for the last purpose, the court must admonish the jury that the evidence is not to be used in determining the existence or the weight of aggravating circumstances. Once the jurors determine whether or not the defendant is death-eligible, then they must consider all the relevant evidence to determine the appropriate sentence for the defendant. See id.
CONCLUSION
The Eighth Amendment requires that the death penalty "be imposed fairly, and with reasonable consistency, or not at all." Eddings, 455 U.S. at 112. We believe that capital trials in this state normally result in fair and reasonably consistent imposition of the death penalty. In this case, with the unprovoked electric shocking of a capital defendant at his penalty hearing in the presence of jurors and with the lack of an instruction affirmatively informing the jurors of their responsibility to independently assess all the evidence in considering mitigation, we cannot conclude that this constitutional requirement was met.
Therefore, we affirm Hollaway's judgment of conviction but reverse his sentence and remand for a new penalty hearing consistent with this opinion.
AGOSTI and BECKER, JJ., concur.
ROSE, C.J., concurring:
I concur with the majority's conclusion that this matter should be remanded for a new penalty hearing because the activation of Hollaway's stun belt was an arbitrary and prejudicial act that improperly influenced the jury. I believe that giving an additional instruction on the jury's consideration of mitigating circumstances is appropriate. I write separately, however, because I further conclude that this case should be remanded with special instructions that separate counsel be appointed to represent the State's interest in ensuring a reliable penalty de
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