Death penalty thrown out

CARSON CITY -- The Nevada Supreme Court has thrown out the death sentence for a Las Vegas man who killed a cabdriver in 1990, ruling that the circumstances of the crime did not warrant capital punishment.

Justices in a 7-0 decision vacated Frederick Paine's death penalty and ordered his case to be remanded to District Court for a new penalty hearing consistent with the decision.

The Supreme Court's decision, released Tuesday, does not mean Paine will be released, but that his sentence likely will be changed to life imprisonment.

In two previous penalty hearings, Paine, now 39, had been sentenced to die for killing cabbie Kenneth Marcum during a Jan. 19,1990, robbery. The cabdriver was shot in the head. He was robbed of $45.

Marcum was 53 at the time of his death and had driven a cab for only a few months.

Since Marcum had little money, fellow cabdrivers raised funds to send his girlfriend to California for his burial. A procession of 85 cabs drove up and down the Strip in his honor on the day of the funeral.

Justices said there were no valid "aggravating circumstances" that gave rise to two past decisions to sentence Paine to die.

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

In Paine's case, a panel of judges and a jury ruled that the killing was "random and without purpose," an aggravating factor that could be used to give him capital punishment.

But justices said that was an error.

"This is not a situation where Paine chose his victim 'without a specific purpose or objective,' " according to the decision. "The specific purpose was robbery."

The court said that in Paine's statements to police, as well as his testimony in court, he indicated he shot the victim, "at least in part, to eliminate the only witness to the crime."

Because there was a purpose to his killing, the "at-random aggravator was not properly applied," the court said in vacating the death penalty sentence.

In a hearing before the Supreme Court in September, Paine's lawyer, Michael Pescetta, argued that Paine "freaked out" in exiting the cab and shot Marcum.

Paine and a partner, Marvin Doleman, had shot another cabdriver, William R. Walker, 10 days earlier in a robbery that netted them $22, according to court records. Both were convicted of robbery in that case. Walker recovered.

In another case, the court on a 6-0 vote, upheld the death penalty conviction of James Chappell. He was convicted of stabbing to death his former girlfriend, Deborah Panos, during an Aug. 31, 1995, robbery. She was the mother of his three children.

Justices said the evidence showed Chappell had beaten Panos and stolen from her for a decade in order to feed his drug habit.

On the same day that Chappell was released from jail on an unrelated matter, he immediately went to her home "beat her, sexually assaulted her and stabbed her 13 times," according to court records.

Even after admitting to police that he killed her, Chappell "continued to blame her, at least in part, for her murder at his hands," the records state.

He offered more than a dozen reasons that his sentence should be reduced, but justices rejected all of them.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.