High court overturns death penalty in Las Vegas slaying

Thursday, Aug. 24, 2000 | 10:28 a.m.

CARSON CITY -- The Nevada Supreme Court has overturned the death penalty for Roy Hollaway, who has said several times he wants to be executed for attacking his wife so severely that she died two weeks later of her injuries.

The court, with two members dissenting, said Wednesday that Hollaway should have a new penalty hearing to decide his sentence because the first sentence "was imposed under the influence of prejudicial and arbitrary factors."

But the minority opinion said another hearing would be useless and expensive because Hallaway wants to die.

After an argumentative drinking spree that went on for several days in January 1996, Hollaway first tried to drown his wife, Carolyn Whiting, at their Las Vegas home. He then attempted to strangle her with his hands. Finally, he used an electric cord. He then called authorities.

Hollaway acted as his own lawyer at the trial and penalty hearing. He told District Judge Jeffrey Sobel he wanted to be his own attorney because he preferred the death penalty to 30-40 years in prison.

He put up no defense and did not present any mitigating factors at the penalty hearing that might have gotten him a life term instead of the death penalty. The jury found one aggravating circumstance, that Hollaway was convicted of robbing a gas station attendant at knifepoint in California in 1990.

The law requires the Supreme Court to review death penalty cases, even if the defendant says he wants to be executed.

The majority opinion, written by Justice Miriam Shearing, upheld the conviction of first-degree murder, but the court found factors that merited a new penalty hearing.

An electronic stun belt that was attached to Hollaway at trial and at the penalty hearing was accidentally activated. It disrupted the proceedings and the courtroom was cleared.

"The timing could not have been better to reinforce the image of Hollaway as an extremely violent man with whom authorities had to take exceptional security precautions," Shearing said.

It was also an error, Shearing said, for prosecutor David Barker to tell the jury that the victim's family would have no more holidays with her.

The court said there were a number of mitigating factors the jury could have considered, even though Hollaway did not present any.

Shearing wrote there was evidence Hollaway was remorseful following the murder, that alcohol may have played a major role in the crime, that the murder did not threaten or endanger any other person and that Hollaway did not flee or conceal the crime.

"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," Shearing wrote.

In all future death penalty cases, Shearing said, a jury should be instructed that it may consider evidence presented at the guilt trial when deciding the penalty. She said jurors are not bound by what attorneys present in the penalty hearing.

"Jurors must consider the totality of the circumstances of the crime and the defendant, as established by the evidence presented in the guilt and penalty phases of the trial," Shearing said.

Justices Cliff Young and Myron Leavitt dissented, noting that Hollaway wanted to die and did not want to file an appeal.

"It would appear that remanding to the District Court for a second penalty phase is a useless, expensive and time consuming undertaking," the minority said.

They said a majority of the court is imposing a new burden on juries. There's a law already that the district judge will instruct the jury on the mitigating circumstances offered by the defense.

"If the Legislature intended for the jury to conduct an independent review of all the evidence presented during both the guilt and penalty phases in search for mitigating evidence, the Legislature would have included such an instruction in this statute," they wrote.

Young and Leavitt also said Sobel properly handled the accidental setting off of the stun gun. They said the comment by the prosecution about the "holidays" was improper but did not merit a new penalty hearing.

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