Killer’s attorney argues state’s death penalty is invalid

By Cy Ryan

Monday, Aug. 31, 2009 | 4:29 p.m.

CARSON CITY – An attorney for Las Vegas killer Frederick Paine has told the Nevada Supreme Court that he deserves a new penalty hearing because the death penalty is invalid.

Michael Pescetta, an assistant U.S. public defender, says aggravating circumstances used to impose the death sentence are void.

But Steven Owens, chief deputy district attorney for Clark County, said the case has been heard twice before and the decision of a three-judge panel should stand.

Paine, now 39 and in maximum custody at the Ely State Prison, pleaded guilty in 1990 to the fatal shooting of Las Vegas cab driver Kenneth Marcum, after wounding another taxicab driver.

The court this week will also consider the case of Herbert D. Wesley, sentenced to death for the fatal stabbing of his father and stepmother Ike and Doella Wesley in their Las Vegas home in March 1992.

The court will rule later.

Nevada law permits the imposition of the death penalty if the aggravating circumstances outweigh the mitigating circumstances in a capital murder case.

Pescetta said the Supreme Court has already ruled that using felony murder as an aggravating circumstance was invalid in capital murder cases.

The second aggravating circumstance used to impose the death penalty for Paine was the killing was at random and without apparent motive. Pescetta argued that Paine killed the cab driver during a robbery and that was the motive.

But Owens argued this was the third time the Supreme Court has considered this case. He said the killing was senseless because Paine admitted that he had no intent to shoot Marcum.

“This victim was selected randomly,” said Owens in arguing against another penalty hearing.

There is a question whether this appeal is procedurally barred from being considered. Pescetta said that would be a miscarriage of justice if the court didn't rule on the aggravating circumstance issues. But Owens said this case has already been considered twice.

If the court grants the defense petition, Paine will receive a penalty hearing before a jury, which would decide life in prison with or without parole.

A decision of a three-judge panel to sentence Paine to death initially was overturned when it was disclosed one of the judges was falling asleep on the bench. A second three-judge panel sentenced Paine to death.

A co-defendant in the case, Marvin Doleman, also received the death penalty but his sentence was later changed to life in prison without the possibility of parole. Doleman, 39, is in custody at the High Desert State Prison.

Paine was convicted of attempted murder in the shooting-robbery attempt of cab driver William Walker, who was shot three times in the head.

In the Wesley case, defense lawyers argue the aggravating circumstances to give him the death penalty are invalid. And they also argue that his defense lawyers at trial and on his first appeal didn’t do the job.

His hearing is set for Tuesday.

Wesley, now 44 and in maximum custody at the Ely State Prison, stabbed his father 18 times and his step mother 36 times.