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Hollaway v. State8/23/2000
termination. See New Jersey v. Loedatich, 548 A.2d 939 (N.J. 1988).
Nevada's statutory scheme includes numerous safeguards to ensure that the death penalty determination is reliable and not given randomly or disproportionately. Indeed, NRS 175.554(3) prohibits a jury from imposing a death sentence in matters where the mitigating circumstances outweigh the aggravating ones. The majority opinion properly observes that the United States Supreme Court requires a jury to be able to consider and give effect to any relevant mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 328 (1989). I do not see how a jury could fulfill its legal, and perhaps moral, duty of considering the mitigating circumstances when no such evidence is presented.
Further, NRS 177.055(2)(d) compels this court to consider " hether 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. This statutory mandate, however, is thwarted in circumstances where compelling mitigating evidence is neither investigated nor presented at the sentencing phase.
Although we concluded in Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996), that a criminal defendant is entitled to represent himself in any manner he wishes, we did not address whether the State had an interest in assuring the presentation of mitigating evidence. This court has recognized that Nevada has an interest in preserving life and preventing suicide. See McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 (1990). With respect to this issue, I conclude that because the State has a strong interest in protecting against arbitrary implementation of the death penalty, a representative should be appointed for sentencing to prevent such arbitrary imposition of the death penalty. This representative would act as an amicus curiae and investigate and present mitigating factors, thus fulfilling the aforementioned statutory directives that safeguard against random and arbitrary death sentences.
MAUPIN, J., concurring:
I concur with the majority that Hollaway's conviction on the charge of first-degree murder should be affirmed. I also agree with the majority's statements of doctrine with regard to the process by which persons charged with murder in Nevada may receive the death penalty. Thus, I further agree that a second sentencing hearing is required, but primarily because of the activation of the "stun belt" during the State's closing argument.
I do have some concern with the majority's observation that evidence admitted at the guilt phase may be considered by the jury in mitigation of penalty. First, there will be no guilt phase on remand. Second, if Hollaway continues in his quest to be executed, that evidence will never come to light. Third, the defendant, although having no right to set his own penalty -- it is the prerogative of the jury or a three-judge panel to determine that issue -– has the absolute right to waive or renounce the presentation of any evidence. Thus, on remand, while the process should proceed as indicated by the majority, some of that process may not eventuate at Hollaway's election.
YOUNG, J., with whom LEAVITT, J., joins, dissenting:
I respectfully dissent because I disagree with the majority's conclusion that Hollaway's sentence was imposed under the influence of prejudicial and arbitrary factors.
While review of this case is required by statute, under the facts and circumstances of the instant appeal, I feel that more consideration should have been given to Hollaway's competen
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