Meller v. State , 94 Nev. 408 ( 1978 )

581 P.2d 3 (1978)

Kenneth James MELLER, Appellant,
v.
The STATE of Nevada, Respondent.

No. 9111.

Supreme Court of Nevada.

July 5, 1978.

Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Chief Deputy Public Defender, Carson City, for appellant.

Robert List, Atty. Gen., Carson City, Steve McMorris, Dist. Atty., Douglas County, Minden, for respondent.

OPINION

PER CURIAM:

Appellant was convicted, by jury verdict, of robbery of the Nevada National Bank at Zephyr Cove, Nevada (NRS 200.380) and murder of a Nevada Highway Patrolman on October 14, 1975 (NRS 200.010; NRS 200.030). He was subsequently sentenced to death pursuant to NRS 200.030(1)(a) and NRS 200.030(5), which provide for a mandatory death penalty for the murder of a peace officer acting in his official capacity.^[1] Appellant contends NRS 200.030(5), as applied to NRS 200.030(1)(a), is unconstitutional. We agree.

The U.S. Supreme Court recently annulled a similar statutory provision, stating: "[I]t is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. [Footnote omitted.] Because the ... statute does not allow for consideration of particularized mitigating factors, it is unconstitutional." Roberts v. Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 1996, 52 L.Ed.2d 637 (1977). Cf. Smith v. State, 93 Nev. 82, 560 P.2d 158 (1977).

In our view, Roberts is controlling and dispositive of the present appeal. As in Roberts, Meller was convicted of murdering a police officer who, at the time of his death, was engaged in the performance of his lawful duties. Similarly, Meller was tried, convicted, and sentenced under a death penalty statute which failed to provide for consideration of mitigating factors.^[2]

Accordingly, pursuant to the mandate of Roberts, appellant's sentence of death must be, and is hereby, vacated. The penalty imposed upon appellant is life imprisonment without possibility of parole.^[3]See Smith v. State, supra.

Ancillary claims of error are without merit and, accordingly, the district court judgment is affirmed, as modified.

BATJER, C.J., MOWBRAY, THOMPSON and GUNDERSON, JJ., and YOUNG, District Judge,^[4] concur.

NOTES

[1] In 1975, and at all times relevant to these proceedings, NRS 200.030(1)(a) provided, in pertinent part:

"Capital murder is murder which is perpetrated by:

"(a) Killing a peace officer ...:

"(1) While such officer ... is acting in his official capacity ...; and

"(2) With knowledge that the victim is or was a peace officer... ."

In 1975, and at all times relevant to these proceedings, NRS 200.030(5) provided:

"Every person convicted of capital murder shall be punished by death."

These sections of NRS 200.030 were amended by 1977 Nev.Stats. ch. 585.

[2] Compare NRS 200.030(1)(a), supra note 1, with La. Rev. Stat. Ann. § 14:30, which, before amended, provided, in pertinent part:

"First degree murder is the killing of a human being:

.....

"(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a ... peace officer who was engaged in the performance of his lawful duties... .

.....

"Whoever commits the crime of first degree murder shall be punished by death."

[3] We are cognizant of the sentencing procedures recently approved by the U.S. Supreme Court in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). However, because the present case is factually distinguishable from Dobbert, we find those procedures inapposite. See State v. Rodgers, 242 S.E.2d 215 (S.C. 1978), where the South Carolina Supreme Court also declined to apply Dobbert to a factual situation similar to that involved here.

[4] The Governor, pursuant to Nev.Const. art. 6, § 4, designated the Honorable Llewellyn A. Young, Judge of the Sixth Judicial District, to sit in place of the Honorable Noel Manoukian, Justice, who voluntarily disqualified himself in this case.