Court overturns death penalty in cab driver’s shooting

By Cy Ryan (contact)

Wednesday, Oct. 21, 2009 | 2:20 p.m.

CARSON CITY – The Nevada Supreme Court has overturned the death sentence for Frederick L. Paine, convicted in the fatal shooting of a cab driver during a robbery in Las Vegas in 1990.

But the court rejected the appeals of William L. Witter and James M. Chappell, both sentenced to death for separate killings in Las Vegas.

Paine, who was 19 years old at the time, confessed to robbing and fatally shooting taxicab driver Kenneth Marcum in the head.

A three-judge panel sentenced him to death but the Supreme Court overturned that penalty because one of the judges fell asleep during the hearing.

A second panel of judges also sentenced him to death.

The Supreme Court, in a unanimous opinion written by Chief Justices James Hardesty, ruled that Supreme Court decisions in other cases, invalidated the aggravating circumstances used to impose the death penalty on Paine

Hardesty said it would be a “fundamental miscarriage of justice” to uphold the death penalty for Paine since those two aggravating circumstances are no longer valid.

He said a 2004 decision by the Supreme Court held that a felony committed by the defendant could not be used to establish first-degree murder and then used again as an aggravating circumstance to impose the death penalty.

In this case the robbery of the cab driver was both used to get a first-degree murder conviction and to hand down the death penalty.

In imposing the death penalty the panel of judges said an aggravating circumstance was present because Paine killed the cab driver “at random and without apparent motive.”

But the Supreme Court said Paine killed the driver to eliminate the only witness to the crime. Hardesty wrote, “Furthermore, this is not a situation where Paine chose his victim ‘Without a specific purpose or objective.’”

Paine, who is now 39, will return to district court in Las Vegas for sentencing to a life term in prison.

The court rejected the arguments of Witter who claimed the 1984 Supreme Court decision invalidated two of the aggravating circumstances that resulted in his death sentence.

Witter was convicted of stabbing and trying to sexually assault Kathryn Cox in a garage in Las Vegas. When Cox’s husband James arrived home and interrupted the attack, Witter stabbed him 16 times, killing him.

The court said even if those two aggravating circumstances were eliminated, there was enough evidence to justify the death penalty. Witter, now 46, had a long history of arrests including one conviction where he stabbed another man with a seven-inch butcher knife and cut the victim’s bowels in ten places, almost killing him.

The court also upheld the first-degree murder conviction of James M. Chappell in the fatal stabbing of Deborah Panos in Las Vegas. Chappell, now 39, was sentenced to death but the Supreme Court overturned that sentence in 2000.

At a second penalty hearing, Chappell was again sentenced to death. In his new appeal, Chappell claims his conviction should be overturned for 13 reasons, including the death sentence is unconstitutional and the penalty was excessive.

The court said the evidence showed Chappell had beaten Panos and stolen from her and their children to support his drug habit for almost a decade before he was sent to prison.

After being released from prison he immediately went to the Panos home, beat her, sexually assaulted her and stabbed her 13 times.

The court, in a unanimous decision also written by Hardesty, rejected the claims of error and said the death penalty was not excessive.

All three inmates are serving their sentences at the maximum security prison in Ely.