Paine v. State, 21983

• Decision Date: 30 December 1991
• Docket Number: No. 21983,21983
• Citation: 107 Nev. 998,823 P.2d 281
• Parties: Frederick Lavelle PAINE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 281

823 P.2d 281

107 Nev. 998

Frederick Lavelle PAINE, Appellant, v. The STATE of Nevada, Respondent.

No. 21983.

Supreme Court of Nevada.

Dec. 30, 1991.

Norman J. Reed & Nathaniel J. Reed, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Frederick Lavelle Paine ("Paine") was charged with the robbery and murder of Las Vegas cab driver Kenneth Marcum ("Marcum"). On the morning of January 19, 1990, Paine and his partner, Marvin Doleman ("Doleman"), entered a cab driven by Marcum at the Hotel Continental in Las Vegas. Upon arriving at their destination, Paine shot Marcum two times in the head from point blank range. Paine and Doleman then robbed Marcum of $45.00 and a wristwatch. Paine and Doleman then returned to the Hotel Continental, where they were apprehended by Las Vegas Metropolitan Police later that day. ¹ Paine ultimately pled guilty to all counts against him on August 17, 1990. ²

Paine's penalty hearing took place over a two-day period, beginning on October 15, 1990, before a three-judge panel consisting of Judge Joseph S. Pavlikowski, Judge William P. Beko and Judge Michael R. Griffin. At the conclusion of the hearing, following a ten minute deliberation, the three-judge panel recommended that Paine be sentenced to death, finding two aggravating circumstances and one mitigating circumstance. ³ Following the penalty hearing, Paine brought a motion for an evidentiary hearing to determine whether he was prejudiced by the alleged inattentiveness of panel member Judge Beko, who had been seen closing his eyes at various times throughout the hearing. Paine's motion was denied. Paine now maintains that he was denied a fair penalty hearing. Paine claims that the alleged inattentiveness of Judge Beko and the short deliberation of the three-judge panel demonstrates that the imposed sentence of death was motivated by prejudice. Paine also contends that the three-judge panel erred in finding that the murder of Kenneth Marcum was random and without motive.

First, we hold that the three-judge panel did not err in finding that Paine acted randomly and without apparent motive pursuant to NRS 200.033(9). We have previously concluded that a killing may properly be found to be random and without apparent motive if the robbery could have been completed without killing the victim. Bennett v. State, 106 Nev. 135, 143, 787 P.2d 797, 802 (1990) (citing Moran v. State, 103 Nev. 138, 143, 734 P.2d 712, 714 (1987)),cert. denied, 498 U.S. 925, 111 S.Ct. 307, 112 L.Ed.2d 260 (1990). William Robert Walker, a Las Vegas cab driver who miraculously survived a similar attack by Paine and Doleman on the evening of January 9, 1990, testified that he was shot three times in the head without any warning before Paine and Doleman demanded any money. ⁴ Furthermore, Paine testified during the penalty hearing that "[t]here was no reason for me to even pull the trigger, you know, in either case." Therefore, we reject Paine's argument as to this issue and hold that there was sufficient evidence to conclude that the killing of Marcum was not necessary to complete the robbery.

The next issue, involving the alleged inattentiveness of Judge Beko, is more troublesome and complex. ⁵ Among Paine's witnesses was a local television news crew which videotaped the proceedings and subsequently ran a story on the allegations against Judge Beko on the evening news. The prosecution offered an affidavit in support of Judge Beko's attentiveness. Judge Pavlikowski, the presiding judge in the case who was also a member of the three-judge panel, denied Paine's motion based on his personal observations during the penalty hearing and the subsequent deliberations of the three-judge panel. ⁶

The circumstances present this court with a "no-win" situation. If the case is remanded for an evidentiary hearing on this issue, the questions concerning whether Judge Beko may have slumbered on occasion cannot be completely answered because only Judge Beko knows the answer. If we dismiss Paine's allegations, then the question of Judge Beko's alleged inattentiveness will forever taint this case. In the news story which aired locally on this matter, Judge Beko called Paine's allegations "outrageous" and explained that he has cataracts, which make his eyes extra sensitive to the lighting in the courtroom.

The most difficult problem regarding Paine's allegations of Judge Beko's inattentiveness is our concern with promoting "public confidence in the integrity and impartiality of the judiciary." NEV. CODE OF JUDICIAL CONDUCT Canon 2A (1977). We must avoid even the appearance of prejudice in order to maintain " 'the confidence of the thinking public in the administration of justice.' " In re Inquiry Concerning a Judge, 788 P.2d 716, 723 (Alaska 1990) (quoting In the Matter of Bonin, 375...