MELLER v. STATE, 94 Nev. 408 (1978)

581 P.2d 3

No. 9111Supreme Court of Nevada.
July 5, 1978

Appeal from judgment and sentence, Ninth Judicial District Court, Douglas County; Noel E. Manoukian, Judge.

Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Deputy Public Defender, Carson City, for Appellant.

Robert List, Attorney General, Carson City; Steve McMorris, District Attorney, Douglas County, for Respondent.

OPINION
Per Curiam:

Appellant was convicted, by jury verdict, of robbery of the

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Nevada National Bank at Zephyr Cove, Nevada (NRS 200.380) and murder of a Nevada Highway Patrolman on October 14, 1975 (NRS 200.010; NRS 200.030). He was subsequently sentenced to death pursuant to NRS 200.030(1)(a) and NRS 200.030(5), which provide for a mandatory death penalty for the murder of a peace officer acting in his official capacity.[1] Appellant contends NRS 200.030(5), as applied to NRS 200.030(1)(a), is unconstitutional. We agree.

The U.S. Supreme Court recently annulled a similar statutory provision, stating: “[I]t is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. [Footnote omitted.] Because the . . . statute does not allow for consideration of particularized mitigating factors, it is unconstitutional.” Roberts v. Louisiana, 431 U.S. 633, 637 (1977). Cf. Smith v. State, 93 Nev. 82, 560 P.2d 158 (1977).

In our view, Roberts is controlling and dispositive of the present appeal. As in Roberts, Meller was convicted of murdering a police officer who, at the time of his death, was engaged in the performance of his lawful duties. Similarly, Meller was tried, convicted, and sentenced under a death penalty statute which failed to provide for consideration of mitigating factors.[2]

Accordingly, pursuant to the mandate of Roberts, appellant’s sentence of death must be, and is hereby, vacated. The

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penalty imposed upon appellant is life imprisonment without possibility of parole.[3] See Smith v. State, supra.

Ancillary claims of error are without merit and, accordingly, the district court judgment is affirmed, as modified.[4]