High court to hear appeals this week

Monday, Feb. 11, 2002 | 9:55 a.m.

CARSON CITY -- Nevada's use of the death penalty will get a close look this week, as the state Supreme Court hears oral arguments on two Southern Nevada death penalty cases.

They will be two of eight appeals the court will hear today through Wednesday.

Zane Michael Floyd was convicted on four counts of first-degree murder in a predawn shooting at an Albertson's in June 1999. Prosecutors called it the "worst massacre in the history of Las Vegas."

Fernando Hernandez was sentenced to death for the strangulation-stabbing of his ex-wife Donna in front of their 3-year-old daughter in October 1999.

The Floyd hearing, before the full court, is set for Tuesday and the Hernandez case is scheduled for Wednesday.

The court hearings come two weeks after a legislative committee began studying the use of the death penalty in the state. Those testifying before the legislative panel, which could recommend reform to next year's Legislature, said the deck is stacked against defendants in Nevada.

This week Robert Miller, Floyd's lawyer, will ask the high court to reverse both the conviction and death penalty, arguing the trial should have been moved out of Las Vegas and prosecutors made mistakes.

In his prehearing brief, Miller wrote that the prosecutor erred when he told the jury this was the "worst massacre in the history of Las Vegas."

Thomas Darnell, Chuck Leos, Dennis Sargent and Luci Tarantino died in the shooting. Court documents said Tarantino pleaded for her life before Floyd shot her.

Floyd was also convicted of sexual assault on an escort service employee.

The 20-year-old woman came to his apartment several hours before the supermarket shooting. She said he put a shotgun to her head and forced her to have sex. He reportedly emptied one shell from the gun and told the woman that her name was written on it.

Hernandez' lawyer JoNell Thomas will argue that his slaying of Donna Hernandez was at most a second-degree murder and that the court has failed to properly oversee the use of capital punishment.

In a pre-hearing brief Thomas wrote that the Supreme Court "has not used its supervisory power to assure that the death penalty is applied in a truly selective narrow class of cases."

In 100 direct appeals from death penalty cases, the Supreme Court has upheld 89, she pointed out.

It has used its authority only four times to vacate the death penalty and impose a life term without possibility of parole. The other seven cases were returned to the district court for a second penalty hearing.

Supreme Courts in Florida and Georgia have exercised their authority to uphold death penalties only in the worst cases, Thomas said. For instance, the Supreme Court in Florida has vacated 38 percent of the death penalties, she said.

During his trial Hernandez maintained the murder of his wife was in a fit of passion. But witnesses said he had talked about killing his ex-wife before.

He was angry that another man was living in the house of the ex-wife, who had secured a protective order against Hernandez, according to court records.

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