Public defender says cabby’s killer doesn’t deserve to die

CARSON CITY -- A federal public defender said the 1990 killing of a Las Vegas cabdriver was "simply first-degree murder," not a heinous enough crime to sentence killer Frederick Paine to death.

Michael Pescetta told the Supreme Court that Paine, 39, should be granted a new penalty phase hearing at which his sentence should be reduced to life imprisonment.

Pescetta argued there were no "aggravating" factors that gave rise to sentencing Paine to die for killing cabby Kenneth Marcum during a Jan. 19, 1990 robbery. The cabdriver was robbed of $45.

Under state law, prosecutors must show aggravating factors, such as torture, existed in the crime to impose the death penalty.

In Paine's case, the three-judge panel that sentenced him to die found the killing was "random and without purpose," a factor that can be cited to impose the death penalty. But Pescetta argued that Paine and an accomplice, Marvin Doleman, had decided to rob a cabdriver and did not set out in advance to kill the cabby.

"Selecting a victim to rob is not selecting a victim to kill," Pescetta said. "There is no evidence they were looking for someone to kill."

Pescetta said Paine "freaked out" in exiting the cab and shot Marcum.

"A lot of time they (criminals) get rattled and shoot the victim," Pescetta said.

Justices gave no indication as to their leanings during the hearing. They are not expected to make a decision for several months.

Steve Owens, a Clark County deputy district attorney, noted the hearing marked the third time the court has reviewed the conviction and the facts in the case have not changed.

Without mentioning Paine, justices discussed other cases in which grocery stores were robbed and employees killed so they could not testify.

Owens noted that Paine earlier had shot another cabdriver, who did not die, during a robbery.

Records show Paine and Doleman were convicted of the robbery of $22 from cabdriver William R. Walker, a crime that occurred 10 days before they killed Marcum.

Following the hearing, Pescetta noted that Doleman, who also received the death penalty, later had his sentence reduced to life imprisonment.

He noted that three-judge panels no longer can be used in the penalty phase of first-degree murder cases. Paine had pleaded guilty to the murder, and the judge panels were used at that time for penalty hearings.

His penalty hearing lasted only five minutes, and media accounts at the time mentioned that one judge, District Judge William Beko of Tonopah, had slept for much of the time. The court ordered a new penalty hearing at which Paine was again sentenced to die.

He is on death row at the Ely State Prison.

Contact reporter Ed Vogel at evogel@reviewjournal.com or 775-687-3900.