Brake v. State , 113 Nev. 579 ( 1997 )

Shearing, C. J.,

concurring in part and dissenting in part:

I would affirm the conviction and sentence of Bryan Brake. I do not believe that considering Brake’s lack of remorse in the sentencing was error. This case is quite different from Brown v. State, 113 Nev. 275, 934 P.2d 235 (1997) on which the majority relies. In Brown, the defendant denied any involvement in the crime. Yet, the district judge announced that the defendant would get less than the maximum penalty only if he admitted the offense. This court reversed the sentence on the ground that the defendant had a right to remain silent.

In contrast, Brake admitted killing the victim. The only question was whether or not the killing was in self-defense. Even if the killing had been in self-defense, Brake’s lack of remorse would have been a legitimate consideration of the sentencing judge. Brake’s claim of self-defense and a feeling of remorse are not in conflict. Thus, unlike Brown, Brake’s right to remain silent is not implicated. The sentencing judge may legitimately consider a defendant’s lack of feeling about killing a fellow human being, when the defendant admits to the killing.