Summary:

Betty Jane May was found dead in her basement room at a boarding house in Reno.

Steven Floyd, who lived next door, had been drinking at a nearby bar that night went to May's home to try to borrow some money.

Floyd knocked on her door, which was slightly open, but there was no response. He opened the door and saw May kneeling by her bed with her upper body facedown on the bed. He turned her over and realized that she was dead. Floyd immediately went home and told the landlords, and the police were called.

Fingernail scrapings and evidentiary swabs from May's vagina and left foot were collected. The swabs tested positive for semen. The autopsy showed that she was beaten and manually strangled to death. She had also suffered a forceful traumatic sexual penetration not long before her death. The case lay dormant for almost 12 years without leads.

In 1999 DNA testing of the evidence was requested and compared to a blood sample from Mack taken in 1994, when he was charged and convicted of strangling a prostitute, Kim Parks. (Mack was Park's pimp)

While Mack was serving a life without parole sentence for that murder, DNA testing showed that the semen taken from May's body and the blood stains on her blouse matched Mack. The blood and tissue found under May's fingertips was consistent with Mack's DNA. Mack waived jury trial and was found guilty by the court and sentenced to death by a three judge panel.

The only evidence presented at trial connecting Mack to the murder was the DNA evidence.

Citations:

Mack v. State, 119 Nev. 421, 75 P.3d 803 (Nev. 2003) (Direct Appeal).

Final Meal:

A fish fillet sandwich, french fries and a soft drink.

Final Words:

"Allah is great, Allah is great".

ClarkProsecutor.org

Nevada Department of Corrections

Inmate Name: MACK, DARYL L.
NDOC ID: 44532
Gender: Male
Ethnicity: Black
DOB: 8/28/1958
Height: 6' 3"
Weight: 170 lbs
Build: Medium
Complex: Dark
Hair Color: Black
Eye Color: Brown
Alias(es): 1) BENNETT STEVE ; 2) DICKSON AVERY ; 3) MACK DARRYL LINN

Reno man executed for raping, killing woman

By Brendan Riley - Las Vegas Sun

April 26, 2006

CARSON CITY, Nev. (AP) - A man convicted of the rape and murder of a Reno woman - a crime he denied committing - was executed by injection late Wednesday at the Nevada State Prison. Daryl Linnie Mack, 47, was the first Nevada convict to be executed based solely on DNA evidence.

"Allah is great, Allah is great," Mack said before the lethal drugs took effect. Prison officials pronounced him dead at 9:06 p.m.

The execution was the state's 12th - and the first of a black convict - since the U.S. Supreme Court reinstated capital punishment in 1976. Mack was the 11th of those executed to voluntarily give up available appeals.

Mack, who refused to give any interviews while awaiting execution, had said in court statements that he'd rather be executed than spend the rest of his life locked up on death row - even though he claimed he didn't strangle Betty Jane May, 55, in the Reno boarding house where she lived.

Mack was serving a no-parole life term in prison for murdering Kim Parks in 1994 in a Reno motel when he was linked to May's murder and convicted. A three-judge panel sentenced him to death in 2002.

After Mack was led into the execution chamber and strapped down, he turned with an eerie grin and stared directly at Dan Greco, a chief deputy Washoe County district attorney who oversaw Mack's prosecution. Mack was executed after dining on a last meal of a fish fillet sandwich, french fries and a soft drink. Mack, who converted to Islam while in prison, also spent time reading the Quran in his final hours.

The execution had been scheduled for late last year but was stayed by the state Supreme Court. The stay was lifted in February when the high court dismissed a petition filed by Viola Mack, the condemned inmate's mother, who claimed her son didn't get a fair competency hearing.

Greco said the death penalty was clearly warranted in Mack's case. Mack was "a perfect example of the worst of the worst," Greco said.

As Mack sat in prison for killing Parks, the unsolved murder of May languished until a Reno homicide detective reviewing inactive cases noticed there were blood and semen samples that had never been tested. Such DNA tests had not been developed at the time of May's 1988 slaying. A search of the data base found a match in Mack. "This was an interesting case in that it was the first case where the only evidence was DNA evidence," Greco said.

May's children, Charles May, 48, of Reno, Denise Notinelli, 44, of Los Angeles, and Alana Coy, 42, of Kentucky, witnessed Mack's execution. Charles May said the family wanted to see justice carried out, and the execution was "long overdue." "Mom couldn't ask for a better Mother's Day gift," May said outside the prison, where he declared justice had been served. "Rest in peace, mom," he said.

Prosecutor, family of victim react to Nevada execution

By Scott Sonner - Las Vegas Sun

April 26, 2006

CARSON CITY, Nev. (AP) - The prosecutor figured he was the target of Daryl Mack's eerie smile a few minutes before the 47-year-old inmate was executed Wednesday night for raping and murdering a Reno woman in 1988. "He was looking right at me, so I think it was," Washoe County Assistant District Attorney Dan Greco said. "I didn't think under the circumstances a smile back at him would be appropriate, so I simply nodded at him," Greco said.

The son of Mack's victim figured his own reaction to the broad grin wouldn't make the evening news. "You probably are going to edit this," Charles May told reporters outside the prison just after Mack was put to death by lethal injection. "But I thought, `That rotten son of a bitch. How can he have the gall to do that at the last second and get away with it?' We're glad he is gone."

Mack waived available appeals and said he wanted to die even though he denied sexually assaulting and strangling Betty Jane May in a southwest Reno boarding house. He was pronounced dead six minutes after three deadly drugs were pumped into his body. "His final words were `Allah is great, Allah is great,'" state Corrections Director Glen Whorton said. "Obviously he was very resigned toward this and he was intent on going through. ... He was resolute throughout."

Wearing a button with a photo of his mother, Charles May read a handwritten statement from a piece of white notebook paper on behalf of himself and his two sisters. All three witnessed the execution, the 12th in Nevada since the death penalty was reinstated by the U.S. Supreme Court in 1976.

Mack was the first to be executed in the state based solely on DNA evidence and the first black inmate to die in more than 30 years. "Daryl Mack will never harm anyone ever again," May said. "It has been a long and very rough road for us all. Tonight that journey ends and closure begins. Justice has been served." "A weight was lifted off our shoulders," he said. "Life starts over. We don't have to worry about Daryl Mack occupying our lives, controlling our lives, wondering when the next appeal is going to come. It is a new beginning." "Mom couldn't have asked for a better Mother's Day gift. Rest in peace, mom."

Greco said he bore no animosity toward Mack. "Throughout the court proceedings he was very pleasant. He's a very articulate man. Some of the information that has been presented in the print media about his mental state has not been entirely accurate," he said. "On the other hand, both of the murders he committed were horrific. And in Washoe County we seek the death penalty very sparingly, very sparingly. We only seek it in the worst cases and he is the perfect example of that. "I do not take lightly asking for someone's life. But my personal reaction is finally, justice is done," he said.

Greco said a chill did not run down his spine when Mack smiled at him. "Inmates in the yard have certain mannerisms and ways they have to deal with individuals to show they are tough and I think you saw that to the very end, but it really didn't bother me," he said.

Two dozen death penalty opponents gathered outside the prison to protest the execution despite Mack's desire to die. "It still begs the question, should we be killing someone who killed someone to show killing someone is wrong?" said the Rev. Charles Durante, a member of the Nevada Coalition Against the Death Penalty. "The fact somebody is volunteering for it or saying they don't want any more appeals doesn't make it any more right," he said in an interview earlier.

The protesters at the candlelight prayer vigil across the street from the prison sang hymns and carried signs that read "Stop the cycle of violence," "An eye for an eye makes the whole world blind," and "Thou shalt not kill, murder is wrong! And so is the death penalty."

Three family members of a victim of another convicted murderer on death row quietly stood beside the protesters with their own signs reading "Peace and comfort to the Mays," "Standing with the May family" and "To honor and remember Betty Jane May." "I'm here to support the May family. It has nothing to do with the death penalty," said Pam McCoy, whose 25-year-old son Brian Pierce was murdered in 2002 by Robert Lee McConnell.

McConnell came within 34 minutes of being executed last June before he filed an appeal that won him an immediate stay. He remains on death row in Ely State Prison. Pierce's grandparents, Jim and Dee Tresley of Reno, joined McCoy. "We had a grandson murdered a while back, so we're for the death penalty," Jim Tresley said. "I think that's the only way you can stop crime."

Family receives closure

By Martha Bellisle - Reno Gazette-Journal Online

April 27, 2006

After flashing a toothy smile and declaring "Allah is great, Allah is good," Daryl Linnie Mack was executed by lethal injection Wednesday night for the 1988 rape and murder of a 55-year-old Reno mother of three. Mack, 47 and the first Nevada convict to be executed solely on DNA evidence, was pronounced dead at 9:06 p.m.

Convicted in 2002 of murdering Betty Jane May at her boarding house room, Mack had dropped his appeals and said he wanted to go forward with his execution. A Muslim, Mack had spent the days leading up to the execution reading the Quran and praying, said Fritz Schlottman, spokesman for the Department of Corrections.

May's son, Charles, and daughters Denise Notinelli of Los Angeles and Alana Coy of Kentucky, watched the execution wearing buttons with a photo of their mother. Outside the prison after the execution, they stood with arms locked and said justice was done. "My sisters and I are very pleased with tonight's outcome," Charles May said, reading from a hand-written note. "Daryl Mack will never harm anyone again. Mom couldn't ask for a better Mother's Day gift. "We're glad he's gone."

Chief Deputy District Attorney Dan Greco, who prosecuted the case, said Mack's smile was directed at him. "He was looking right at me," Greco said. "I hold no animosity toward him; he's a very articulate man," Greco said. "On the other hand, both of his murders were horrific. Finally justice is done."

Glen Whorton, Department of Corrections director, told reporters Mack's final words were to praise Allah. Earlier, Mack ate a final meal of a fish sandwich with fries but made no telephone calls. No one from Mack's family came outside after the execution, but Schlottman said Mack's brother was at the prison. Mack had refused to see him, Schlottman said.

For the first time, the entire execution procedure, from the documents detailing the drugs used to the viewing of the intravenous lines being inserted into the inmate's arms, were open to the public. The corrections department released its execution protocol and allowed the blinds to be open after the Reno Gazette-Journal filed lawsuits in state and federal court requesting the changes.

After seven news media witnesses and six official witnesses were led into the viewing room, Mack, a tall, thin black man with short hair and a beard entered the death chamber with five guards. The 9-foot by 12-foot room with a gurney in the center has three windows on one wall and two-way mirrors at the head and foot of the bed.

Two guards helped Mack onto the gurney, then laid him on to his back. Mack kept his head up as he silently watched the guards place straps across his waist and legs and lock padded straps around his ankles and wrists.

Several times, he looked at the witnesses, and locked eyes with one reporter. At 8:54 p.m., four of the guards left while one opened Mack's shirt and attached cables to his chest to monitor his heart. Two emergency medical technicians wearing white short-sleeved shirts and rubber gloves attached intravenous needles, the first time Nevada witnesses could observe that stage.

Mack held his head above the pillow and watched the technicians tie rubber bands around his biceps and insert the needles. The attached IV from the executioner's room behind Mack's head to the needles in his arms. After taping the lines to Macks's skin, the technicians left the death chamber.

Last words

Whorton asked Mack for any last words. At 8:59 p.m., Whorton left the chamber and closed the door. Mack was alone. Mack dropped his head to the pillow and looked at the witnesses. Glancing at Greco, Mack showed his teeth in a sort of smile, then laid his head down and closed his eyes.

At 9 p.m., he lifted his head again, looked at the witnesses, checked the IV lines in his arms and put his head back down. At 9:01 p.m., he took several deep breaths, then his chest stopped moving. By 9:02 p.m., his eyes and mouth were slightly open, but all chest and stomach movement had stopped.

At 9:06, Dr. Bruce Bannister, medical director for prison, walked into the chamber and bent over Mack with a stethoscope. After a few minutes, he walked out of the room and closed the door. Mack was dead.

Brutal murder

Betty Jane May lived alone in a boarding house when in 1988, she was found strangled to death in her bedroom. The blood in the room and on her clothes suggested a struggle with her attacker, Greco said. Evidence also showed she had been sexually assaulted.

Her murder remained unsolved for more than a decade, until an investigator had samples from the scene tested for DNA. They were run in a database and a match was made to Mack, who was in prison at the time, serving a life sentence for the 1994 murder of Kim Parks.

Mack pleaded innocent to May's murder, but a three-judge panel found him guilty and in 2002, sentenced him to death. Mack has maintained his innocence in both murders, but early in his appeals process he told a judge that he no longer wished to fight his death sentence and told his attorney that he didn't want to live on death row.

Greco said he deserved to die for his crime. "Reasonable minds can disagree whether society should have a death penalty," Greco said. "But if you are going to have a death penalty, Daryl Mack is the poster child for it, both because of the heinous nature of the instant offense, as well as because of the length and severity of his criminal history."

Opponents of capital punishment held a vigil across from the prison to the execution. Some say the lethal injection procedure does not ensure that the inmate does not suffer pain before death. Several states, including California, have halted executions while the lethal injection process is reviewed.

Mack was the 12th inmate executed since Nevada reinstated capital punishment in 1977. Of the 12, 11 were volunteers, or like Mack, dropped their appeals. The last execution in Nevada was in August 2004. Terry Dennis was put to death for the 1999 strangulation of Ilona Strumanis in a Reno motel. He also had dropped his appeals.

Mack execution more open than previous deaths

By Martha Bellisle - Reno Gazette-Journal Online

April 26, 2006

Indicating that he has not changed his mind to give up his appeals and fight his death sentence, Daryl Mack requested his last meal on Tuesday and is scheduled to be executed tonight at the Nevada State Prison for the 1988 murder of a Reno mother of three.

And for the first time in Nevada history, the entire process will be open to the public, from the viewing of the full lethal injection procedure to reviewing of the prison's execution protocol, after the Reno Gazette-Journal sued the state Department of Corrections to open the curtains and release the document.

Historically, witnesses were not allowed to watch the medical technicians insert the intravenous lines or attach the heart-rate monitor to the inmate. The blinds were closed during that period and reopened after the EMTs and guards left the room.

But U.S. District Judge Howard McKibben ordered the corrections department on Monday to change its procedure "to allow the public to view executions of condemned inmates in the State of Nevada from the moment the condemned inmates are escorted into the execution chamber through to, and including, the time the condemned inmates are declared dead."

The corrections department also released to the newspaper a copy of its "Confidential Execution Manual -- procedures for executing the death penalty." The newspaper had filed a suit in Carson City District Court asking that the protocol be disclosed under the Nevada Public Records Act. Daniel Wong, chief solicitor general with the Nevada Attorney General's office, which represents the corrections department, hand-delivered the execution manual, but said officials blocked out some portions that detailed "internal institutional and operational security."

Wong said he believed the department had a legal defense against the release of the protocol, but said "the director decided as long as the safety concerns were covered, he was willing to let it out."

He said the department planned to conduct a "complete review of the Confidential Execution Manual," following the change in the viewing and the release of the protocol. The newspaper is reviewing the document to determine if it will seek the disclosure of the redacted material.

Execution set for tonight

Mack was serving a life sentence for the murder of Kim Parks in 1994 when DNA evidence linked him to May's killing. She was found raped and strangled in her boardinghouse room in 1988. She was 55. Mack was sentenced to death in 2002, but early in his appeals process, he told his attorney that he no longer wanted to live on death row, and wished to proceed to the death chamber.

In December, Mack's mother, Viola Mack, filed a challenge to his decision in the Nevada Supreme Court, saying the district court had failed to conduct a "full and fair hearing" to determine whether Mack was competent to waive his appeals.

The high court rejected her motion and the new date of April 26 was set. Mack has declined interviews, and on Tuesday, ordered his last meal: one fish sandwich, french fries and a lemon-lime soft drink. His execution is scheduled for 9 p.m. tonight at the Nevada State Prison in Carson City, the site of the state's death chamber. Opponents of the death penalty plan to hold a candlelight vigil across from the prison beginning at 7 p.m.

Protocol scrutinized

The Department of Corrections had resisted for years the release of its execution protocol, citing security concerns. According to a Human Rights Watch report on lethal injection released Monday, Nevada was the only state that has kept secret its execution procedure, including the drugs used, amounts administered and staff involved.

The release of the protocol comes at a time when courts across the country are reviewing the lethal-injection process in response to claims that some condemned inmates might have been conscious when the final two drugs were administered, and might have caused them excruciating pain.

Because the second drug, Pavulon, paralyzes a person's muscle system, the inmate would not be able to move or express any pain. The claims, including those made in a California case that led to a stay to all executions in that state, say that the inmate's Eighth Amendment right to be protected from cruel and unusual punishment might be violated if he is conscious during the execution process.

Nevada's process questioned

Michael Pescetta, an assistant federal public defender who specializes in the death penalty, said the Nevada's execution procedures appear to contain similar deficiencies and lack needed protections. "Based on my review of the protocol, we do have the same problems identified in the (Michael) Morales case in California," Pescetta said.

In that case, a judge ruled that an anesthesiologist must be present to ensure that the first drug renders the inmate unconscious. But when people from the medical community refused to participate in the execution, saying it violates their oath to save lives, the judge placed all executions on hold. Hearings on the case are set for next week. Nevada's protocol requires a physician be present to ensure the inmate receives enough of the drugs to die, but it does not require anyone to monitor the inmate's consciousness.

Drugs listed

According to the protocol, officials at the Nevada State Prison begin preparing for the execution about a month before by contacting paramedics, "normally" from the Carson City Fire Department. They also notify the sheriff and the coroner's office.

During the weeks before the execution, prison officials arrange for a physician and a psychiatrist to be present, as well as a nurse, someone from the attorney general's office and official witnesses, including media representatives. Officials review a list of needed equipment and materials, including a cardiac monitor, intravenous flasks, syringes, surgical shears, and a "blood spill kit."

Under the heading: "Drugs of Choice," the protocol says "the lethal substances and amounts to be used in the execution are: Sodium Thiopental 5 grams. Pavulon 20 milligrams. Potassium Chloride 160 milliequivalents." "Personal differences exist," the protocol states. "At times dosages have to be increased for certain individuals, although the above doses are lethal for most individuals. It will be the responsibility of the physician, working in conjunction with the staff pharmacist, to ensure that the above is sufficient to cause death."

After the witnesses, executioner and officials are in place, the inmate is led in and placed in "soft restraints." The "contracted emergency medical services technicians" are led in and the IVs, and heart-rate monitor are attached to the inmate. In the past, this was done behind closed curtains. Today, witnesses will watch the whole process.

The director gives the order to proceed to the warden, and the warden gives the OK to the executioner, who begins the flow of the drugs. "The attending physician will then determine whether these injections were sufficient to cause death," the protocol states. "If they are determined by the physician not to be sufficient, the injection procedure will be repeated into the alternate IV."

Protesters gather to decry Nevada execution

By Scott Sonner - Las Vegas Sun

April 26, 2006

CARSON CITY, Nev. (AP) - Two dozen death penalty opponents gathered Wednesday night outside Nevada State Prison to protest the execution of Daryl Mack even though he repeatedly said he wanted to die. "It still begs the question, should we be killing someone who killed someone to show killing someone is wrong?" said the Rev. Charles Durante, a member of the Nevada Coalition Against the Death Penalty. "The fact somebody is volunteering for it or saying they don't want any more appeals doesn't make it any more right," he said in an interview earlier.

Mack, 47, waived available appeals and said he wanted to die even though he denied sexually assaulting and strangling Betty Jane May in a southwest Reno boarding house in 1988. "We stand for looking for alternatives to violence in order to respond to violence," Durante said. "By taking a life, it denigrates everyone involved, including the people of the state."

The protesters at the candlelight prayer vigil across the street from the prison sang hymns and carried signs that read "Stop the cycle of violence," "An eye for an eye makes the whole world blind," and "Thou shalt not kill, murder is wrong! And so is the death penalty."

Three family members of a victim of another convicted murderer on death row quietly stood beside the protesters with their own signs reading "Peace and comfort to the Mays," "Standing with the May family" and "To honor and remember Betty Jane May." "I'm here to support the May family. It has nothing to do with the death penalty," said Pam McCoy, whose 25-year-old son Brian Pierce was murdered in 2002 by Robert Lee McConnell.

McConnell came within 34 minutes of being executed last June before he filed an appeal that won him an immediate stay. He remains on death row in Ely State Prison.

Pierce's grandparents, Jim and Dee Tresley of Reno, joined McCoy. "We had a grandson murdered a while back, so we're for the death penalty," Jim Tresley said. "I think that's the only way you can stop crime." He said he had no ill will toward the other protesters. "They have a right to their feelings. I don't have any problem with that at all," he said.

The anti-death penalty coalition included Nevada members of Amnesty International, the American Civil Liberties Union, the NAACP and the Life, Peace and Justice Commission of the Roman Catholic Diocese of Reno, as well as members of a number of other area churches and synagogues. "It's state-assisted killing," said Paige Thie, of the ACLU in Reno. "The same ends can be served with life in prison without parole."

Nancy Hart, a member of Amnesty International, said she opposes the death penalty as "a human rights violation." "We deeply sympathize with all those who have lost relatives or friends due to violent crime, but there is no justice in killing," she said.

Durante, a Catholic priest, said it was the seventh execution he has protested since he helped organize the first vigil outside the prison to oppose the execution of Richard Moran in 1996. He said he doesn't understand why the state schedules executions at night. "For years they were doing it at midnight and they still do it at 9 o'clock in the dark of night," Durante said. "We don't do any other state function at this time of day, which says to me they want to keep it quiet, keep it hidden," he said. "If it is such a good thing and moral thing to do, then why do we have to do it in the dark?"

Death-row inmate drops appeals

By Martha Bellisle - Reno Gazette-Journal

October 26, 2005

Nevada death-row inmate Daryl Mack, convicted in 2002 of raping and strangling a Reno woman 17 years ago, told a judge Tuesday he is ready to waive all of his appeals and be executed.

After two of three psychiatrists evaluated Mack and found him to be competent to waive his appeals, Mack, 47, told Washoe District Judge Robert Perry that he no longer wishes to challenge his death sentence. Perry asked Mack whether he understood what would happen by dropping his petition to the court. "I will be put to death," said Mack, a tall, thin man with thick, matted dreadlocks and a long, tangled beard. "Has anyone threatened you or promised you anything?" Perry asked. "No," Mack said.

Mack was in prison for the 1994 murder of Kim Parks in a Reno motel when investigators linked him through DNA evidence to the 1988 murder of Betty Jane May. She had been sexually assaulted and strangled in her southwest Reno home. Her murder remained unsolved for more than a decade.

Mack pleaded not guilty and asked to be tried before a judge instead of a jury. Judge James Hardesty, now a Nevada Supreme Court justice, found him guilty and a three-judge panel sentenced him to death in May 2002.

The following month, the U.S. Supreme Court ruled that juries, not judges, must decide death-penalty cases. Mack appealed his sentence, citing the new ruling, but the state high court rejected his request for a new hearing.

No date was set Tuesday, but Washoe Deputy District Attorney Gary Hatlestad said the execution by lethal injection at the Nevada State Prison in Carson City could occur 14 to 90 days from Tuesday. The next step is for Perry to sign the warrant of execution and set a date. Hatlestad said he expected that to happen in the next week.

Mack's attorney, Marc Picker, said Mack is sick of being on death row and has been ready to drop his appeals since August 2004. "He's tired," Mack's other lawyer, Scott Edwards, said after the hearing.

Before the judge approved Mack's request, Hatlestad walked Mack through his previous challenges to ensure he was aware of his options. In his petition to the court for a new trial, Mack had claimed his lawyers had done a poor job, the judges were biased, he had wanted a jury to decide his sentence and that an execution by lethal injection is cruel and unusual punishment, Hatlestad said. "This whole case could start over, and it could be a get-out-of-jail free card if it's proven," Hatlestad said. "But if you waive this now, you can not reinstate this claim. Is that what you want to do?" "Yes," Mack answered to each question.

Of the 11 inmates executed since Nevada reinstated capital punishment in 1977, 10 were volunteers, or like Mack, dropped their appeals.

Daryl Mack: As execution looms

By Martha Bellisle - Reno Gazette-Journal

April 23, 2006

Betty Jane May never learned to drive. Instead, she rode her bike or walked when she had errands around town. Described as a tiny, quiet woman by her daughter, May had "a tender heart for cats," loved reading mystery books to her kids and introduced them to music. After her children were grown, she and her military husband divorced and she moved into a room at a boarding house in southwest Reno.

On Oct. 28, 1988, a friend who stopped by to borrow money found May slumped over her bed, with bruises on her arms and legs and blood stains on her blue blouse. She had been strangled and brutally raped. On Wednesday night, the man convicted in her killing is scheduled to die.

Although he claims his innocence, Daryl Linnie Mack has dropped his appeals, saying he no longer wants to live on Nevada's death row. His execution is set for 9 p.m. in the state's only death chamber housed in the Nevada State Prison in Carson City.

May was 55 and left behind a son, two daughters and three grandchildren. Her daughter, Alana Coy of Kentucky, said Mack's death is "a good thing." "This has been a 17 year nightmare for me and my family," Coy said. "The pain never goes away and will follow us the rest of our lives. But knowing that he can never get out and do it to someone else, there's a measure of peace in that. "I don't want to see this happen to anybody else."

HISTORY IN CRIME

The murder of Betty May was not Mack's first. Although he also insists his innocence in the killing of Kim Parks in 1994, it was his conviction in her death that ultimately linked Mack to the death of May, whose murder had remained unsolved for 12 years until DNA evidence connected the two.

In the early 1990s, Parks was a prostitute in downtown Reno and Mack was her pimp, according to police. On April 8, 1994, Mack helped Parks move from one hotel to another, and expected to receive some money she had earned, he claimed.

He became angry when she refused to hand it over, according to court records. Mack told police he back-handed Parks, which drew blood, took the money and left. But the prosecutor said Mack wrapped the woman's brassiere around her neck and strangled her, then took her money and left. The judge in Mack's bench trial agreed, found him guilty and sentenced him to life in prison without parole.

Then-Chief Deputy District Attorney David Stanton had argued strongly for the life term, saying Mack was a hopeless criminal with 20 adult arrests and 14 convictions, six of which were felonies. "He is a cold-blooded, premeditated murderer, thief, pimp and drug addict," Stanton said at the sentencing hearing. But Mack told the judge that Parks had been his friend and he would never hurt her. "This terrible atrocity has been committed by a necrophiliac killer, not by a thief or burglar like myself," Mack said.

Confused about the punishment he faced, Mack told the judge to go ahead and sentence him to death. "No, I do not have a death wish," Mack said. "I love my life. I will gladly put my life on the line to express my total innocence. Give me justice or give me death." Washoe District Judge Mills Lane told Mack that capital punishment was not an option in this case, and the judge sentenced him to life without the possibility of parole.

LINK MADE THROUGH DNA

As Mack sat in prison for the Parks murder, the unsolved murder of Betty Jane May languished in the file cabinets at the Reno Police Department. Then in 1999, her case saw new light.

David Jenkins, a homicide detective, was investigating a murder claim and began reviewing inactive cases when he discovered that there was biological evidence from the May case that had never been submitted for DNA testing. Such testing had not been developed at the time of her 1988 murder.

DNA profiles created by the samples of blood and semen taken from May's clothes were submitted to a database, he said, and suddenly they had a hit. The samples matched profiles that had been created by blood samples submitted from Mack during the investigation into Parks' murder, Jenkins said. The May case was reopened and investigators hoped for resolution.

Chief Deputy District Attorney Dan Greco ordered a new DNA sample from Mack to recheck the findings. The match was confirmed and Mack was indicted on a new murder charge. "This was an interesting case in that it was the first case where the only evidence was DNA evidence," Greco said.

The case was old and memories had faded, but the DNA match was powerful enough to take it to court. Again, Mack asked for a bench trial before a judge, not a jury, and again, he was convicted. But this time the prosecutor had sought the death penalty. Since Mack had a judge try his case, a three-judge panel was seated to decide his punishment.

PENALTY PHASE

After the prosecution and defense presented arguments for and against a death sentence during Mack's penalty hearings in April 2002, family members stepped forward to tell the judges about the people involved. Paul Larry Mack, Daryl Mack's 53-year-old brother, traveled from California to describe the life they had shared. "We came from a very dysfunctional family," Mack told the judges. "My brother and I witnessed a tremendous amount of violence between my mother and my dad. I visually watched my father beat my mother to a pulp on several occasions." From birth, his brother was passed around, the elder Mack said. Daryl Mack was sent to their mother's friend when he was 4 months old, then was shipped off live with their father. "And for a while," Larry Mack said, "he lived with me."

Larry Mack read a letter to the court from their 83-year-old mother, Viola Mack, who asked the judges for leniency. "Discipline and correction must never be mistaken for abuse, whether physical or emotional, where the goal is to destroy or diminish," his mother wrote. "As God's people we are to do justice but temper it with compassion and forgiveness and harmony and kindness. "Please implement justice but have mercy -- Daryl's fate is in God's hands."

But May's children asked for justice in a different form. "There are nights where my sleep is disturbed with visions and dreams where mom is still alive, and then I wake and know that she is not," May's son, Charles, told the court. "Birthdays, Mother's Day, holidays all come and go -- events where mom was once a part, now those events include candles burned in remembrance of her." "Mr. Mack will never take away our memories or our love for her," said Charles May of Reno. "All we want now is justice -- justice for our loss and justice for mom."

Alana Coy, May's daughter, agreed. "This whole nightmare has turned our lives upside down, and none of us will ever be the same," Coy said. "Because of one thoughtless, ruthless, despicable person, we have lost our mom." "Whatever our mom was or was not to the people of Reno, Nevada, she was still our mother, and justice must be served."

Then Daryl Mack stood up and made a statement to the court. "Betty May died a terrible death. No human being deserves such a fate," he said. "I would like to offer my condolences to her entire family. I hope the resolution of this case will help their hearts to heal; although I did not sexually abuse Ms. Betty May, just like I didn't sexually abuse Ms. Kim Parks. "I apologize to my own family," he added. "I cannot find the words to express the shame I feel. I know that I will die without ever being released from the Nevada Department of Prisons.

Maybe Ms. Betty May's family can take some small consolation in that fact. He asked the three judges to give him the opportunity to continue his rehabilitation in prison. The judges declined and sentenced him to death.

APPEAL PROCESS STARTED -- STOPPED

Two months after Mack was sentenced by the three-judge panel, the U.S. Supreme Court ruled that juries, not judges, must decide capital cases. Suddenly he had a timely argument against his death sentence.

In his direct appeal to the Nevada Supreme Court -- the first step in a death penalty case -- Mack's attorney argued that under the high court ruling, Mack's 14th Amendment right to a jury trial had been violated. "The death penalty imposed by the three-judge panel in this case is unconstitutional and must be reversed and this matter remanded for a new penalty hearing before a fully impaneled jury," Mack's lawyers wrote.

But the state Supreme Court rejected that argument. When Mack waived his right to a jury trial, he also was consciously waiving his right to have a jury decide his sentence, the justices said. His decision was his own, they said, and he has no right to a new hearing. Mack began working with his attorney, Marc Picker, on the next phase of the appeals process, his post-conviction appeal to Washoe District Court. But about 20 months ago, he decided to stop.

Picker said he walked in one day and Mack said he wished to withdraw his petition. "I questioned him as to his reasoning and questioned whether he had considered it for a while and why," Picker said. "He said he did not want to go through the process any further. He said he didn't want to be on death row anymore." Mack's attorneys asked the court to have a psychiatric evaluation done on Mack to determine whether he was capable of making such a decision.

Two out of three mental health experts who examined Mack found him competent, said Deputy District Attorney Gary Hatlestad, who was handling the appeals. During two hearings before Washoe District Judge Robert Perry, the prosecutor asked Mack a long list of questions to determine whether he truly wanted to drop his appeals. Mack said he knew what he was doing, and was ready to die.

A Dec. 1, 2005, date was set. But the execution was stopped when Mack's mother stepped in.

FRIEND OF THE COURT APPEAL

In her appeal, filed by Assistant Federal Public Defender Michael Pescetta, Viola Mack argued the district court failed to conduct a "full and fair hearing" to determine whether Mack was competent to waive his appeals.

Mack was being given "a powerful psychotropic drug" against his will to render him competent to be executed, which violates his constitutional rights, the appeal said. He also continues to claim he did not commit either murder, which may suggest he is delusional, and has "no rational perception of 'the connection between his crime and his punishment,'" the appeal said.

But the Nevada Supreme Court rejected those arguments. The court said nothing in the record shows the medications are inappropriate. "In fact, the record shows that the medication improves Mack's mental status," the court said. And, the justices said, just because a person claims innocence does not mean he is delusional. The court removed the stay of the execution and a new date was set: Wednesday, April 26.

Unless Mack changes his mind, he'll become the 12th inmate to die since Nevada reinstated capital punishment in 1977, and he'll be the 11th to give up his appeals and "volunteer" to be killed. Betty Jane May's family said they plan to attend.

ProDeathPenalty.com

A neighbor found Betty May murdered in her room at a boarding house. An autopsy determined that Betty died by strangulation and suffered a traumatic sexual penetration just prior to her death. Semen and blood samples were taken from Betty’s body and clothing at the time of her death, and after twelve years passed, a detective ordered DNA testing of the evidence.

Daryl Linnie Mack was serving life in prison for the 1994 strangulation killing of Kim Parks in a Reno motel when he was linked through the DNA tests to the 1988 murder of Betty Jane May. Law enforcement obtained a blood and saliva sample from Mack at two different times during the investigation. Both the semen and the blood stains matched Mack’s DNA.

Additionally, blood and tissue found under Betty’s fingertips matched Mack’s DNA. Mack was charged with first-degree murder with deliberation and premeditation and/or during the perpetration or attempted perpetration of a sexual assault.

In 2000, the State sought the death penalty, alleging two aggravating circumstances: (1) Mack committed the murder while under sentence of imprisonment, and (2) he committed the murder while committing or fleeing after committing sexual assault. Mack had a lengthy prison record, having served four sentences before he was convicted of the murder of Kim Parks. At the time of Betty's murder, Mack was on probation on a California burglary conviction.

Betty May’s son Charles testified at May's trial that he last saw his mother just a few nights before she was murdered and he gave her an extra hug when he said good-bye, not realizing that it would be their last. “She became a victim of a cold-blooded, soulless person who had no regard for human life,” he said. “I am still angry and bitter after all these years. Some nights my sleep is disturbed with visions that my mom is still alive.”

Alana Coy, the daughter of Betty May, said, “We lost something that we can never get back. We lost a mother. We lost a friend and a confidant. Because of one thoughtless, ruthless, despicable person we lost our mom.”

In October of 2005, after two of three psychiatrists who evaluated Mack had found him to be competent to waive his appeals, Mack, now 47, told the judge that he no longer wants to appeal his death sentence.

Mack's attorneys explained that Mack is sick and tired of being on death row and has requested to drop his appeals since July of 2004. In March of that year, Mack had come within a week of being executed when he filed a petition to stay the execution and proceed with his appeals.

The Washoe County Deputy District Attorney Gary Hatlestad asked the judge to formally ask Mack's lawyers if there was any legal reason why the execution should not go forward. This will reduce the likelihood of any successful future appeals. Mack's lawyers said there was none. On a web site where Mack asks pen pals to write to him, he says he is on death row "for a crime that does not warrant the death penalty."

UPDATE: The scheduled Dec. 1 execution of convicted double-murderer Daryl Mack was stayed Wednesday by the Nevada Supreme Court. The high court had been petitioned by Mack's mother to stop her son's lethal injection at the Nevada State Prison and order another hearing to determine whether he was competent to waive available appeals. Mack claims he didn't commit the murder that led to his death sentence but wants to die anyway.

Viola Mack, through Assistant Federal Public Defender Michael Pescetta, said in her "next friend" petition, filed Monday, that Mack deserves "a full and fair" competency hearing. Pescetta said the Reno judge who ruled that Mack, 47, was competent to waive further appeals failed to consider the fact that Mack is being involuntarily injected with a powerful psychotropic drug.

The defender said the use of such drugs to make Mack competent violates his constitutional rights. Pescetta also said Washoe District Judge Robert Perry failed to consider whether Mack's claim that he didn't kill Betty May, who was sexually assaulted and strangled in her Reno home, "is the result of a delusion produced by mental illness."

The defender added that the judge failed to ensure Mack's right to effective legal counsel. He added that an attorney in earlier proceedings didn't seek a hearing where 3 psychiatrists who had clashing opinions on Mack's competency could be questioned.

National Coalition to Abolish the Death Penalty

Do Not Execute Daryl Mack!
NEVADA - Daryl Linnie Mack - December 1, 2005

Daryl Linnie Mack, a black man, faces execution on Dec. 1, 2005 for the Oct. 28, 1988 murder of Betty May in Reno, Nevada. After a night of drinking, a neighbor, Steven Floyd, went to borrow money from Betty May and found her body. Mack has waived his right to appeals, although he has maintained his innocence since he was accused.

Mack suffers from anxiety and psychotic disorders. According to the Supreme Court of Nevada, “A correctional casework specialist from Ely State Prison testified at Mack’s hearing that she did not consider Mack to be a violent inmate and that any disciplinary problems appeared related to changes in medication he was taking to maintain his mental stability.” However the court still upheld his death sentence.

Mack has shown signs of rehabilitation in prison. He has stopped using drugs which he had abused since 1990. He has helped other inmates with their adjustment to incarceration and with their rehabilitation efforts.

Mack has been cooperative with both institutional and court personnel. While maintaining his innocence, Mack has offered condolences to May’s family. He has also apologized to his own family.

Clearly Daryl Mack is not an appropriate candidate for the death penalty. He suffers from mental disorders that could arguably affect his judgment, yet the Supreme Court of Nevada has ruled that Mack’s waiver of his right to appeal was both intentional and voluntary.

Furthermore, he is capable of being an asset to society while serving a life sentence without opportunity for parole by helping other inmates adjust to prison. Finally, while maintaining his innocence, Mack has shown sorrow for any pain that has occurred to May’s family and his own.

Please write to Nevada Governor Kenny Guinn requesting that Mack’s sentence be commuted to life in prison.

Mack v. State, 119 Nev. 421, 75 P.3d 803 (Nev. 2003) (Direct Appeal).

Defendant was convicted, following bench trial in the Second Judicial District Court, Washoe County, James W. Hardesty, J., of first-degree murder, and, following sentencing hearing before a three-judge panel, was sentenced to death. Defendant appealed. The Supreme Court held that: (1) defendant's right to jury trial on penalty was not implicated by three-judge panel's determination of his death sentence; (2) defendant's waiver of right to jury trial as to both guilt and penalty was intentional and voluntary; and (3) death sentence was not excessive. Affirmed.

PER CURIAM: Appellant Daryl Linnie Mack does not challenge his conviction of first-degree murder but claims that his death sentence was determined by a three-judge panel in violation of his constitutional right to a jury trial. We conclude that Mack's claim lacks merit because he requested a bench trial and waived his right to a jury trial.

FACTS

On the night of October 28, 1988, Betty May was found dead in her basement room at a boarding house in Reno. Steven Floyd lived in the house next door with the managers of the boarding house, Jim and Kelly Bassett. Floyd had been drinking at a nearby bar that night and was returning home to try to borrow some money. He knew May and saw that her light was on, so he went to her room to ask for money.

He knocked on her door, which was slightly open, but there was no response. He opened the door and saw May kneeling by her bed with her upper body facedown on the bed. He turned her over and realized that she was dead. Floyd immediately went home and told the Bassetts, and the police were called.

An autopsy was performed the next morning. Fingernail scrapings and evidentiary swabs from May's vagina and left foot were collected. The swabs tested positive for semen. There were abrasions on May's neck, bruises on her inner thighs, lacerations of her fingertips, lips, and nose, blood in her vagina, and a hemorrhage within her cervix. May was wearing a blue blouse, which was bloodstained.

The medical experts at trial all agreed that she had been manually strangled to death. An expert for the State testified that May had suffered forceful traumatic sexual penetration not long before her death.

Almost twelve years later, Detective David Jenkins took over investigation of the case and requested DNA testing of the evidence. Police had taken a blood sample from Mack in 1994. In February 2001, Jenkins also obtained a saliva sample from Mack pursuant to a seizure order.

A criminalist for the Washoe County Sheriff testified that the semen taken from May's body and the blood stains on her blouse matched Mack's DNA profile. The blood and tissue found under May's fingertips was consistent with Mack's DNA.

The State charged Mack with the first-degree murder of May: with deliberation and premeditation and/or during the perpetration or attempted perpetration of a sexual assault. The State sought the death penalty, alleging two aggravating circumstances: Mack committed the murder while under sentence of imprisonment, and he committed the murder while committing or fleeing after committing a sexual assault.

Before trial, Mack personally informed the district court that he would "like to waive the jury trial and have a judge trial alone." The court continued the matter to allow Mack to discuss it with his counsel. Mack repeated his request at the subsequent hearing.

When the court asked him if he understood what would happen if he were found guilty, Mack said he understood that "there would be another phase where a three-judge panel would decide, you just won't solely decide the sentencing phase of it."

The court again continued the matter to allow Mack to look at the jury questionnaires before making his decision. At the next hearing, the court canvassed Mack and determined that he had reviewed the questionnaires and had considered and discussed the consequences of waiving a jury trial with his counsel. The court then granted Mack's request.

Mack also signed a statement acknowledging that his attorneys had advised him on the potential benefits and detriments involved in waiving my right to have my case heard before a jury. I understand that by choosing to have my trial heard by a judge, and if I am convicted of first-degree murder, my sentence will be decided by a three-judge panel. I have discussed these matters with my counsel and I have decided to waive my right to a jury trial.

At the guilt phase, the State basically presented the evidence of the crime summarized above. The only evidence presented by the defense was aimed at attacking the credibility of Floyd, who had discovered May's body. The district court found Mack guilty of first-degree murder under both theories advanced by the State. A three-judge panel was convened, and a penalty hearing was held.

The State relied on the guilt phase evidence to establish the sexual assault aggravator. For the other aggravator, it showed that Mack committed the instant murder while under sentence of imprisonment for a burglary conviction in California in June 1988. In addition, the State introduced evidence that Mack had numerous other convictions.

These included battery causing substantial bodily harm in 1980, burglary and two counts of possession of stolen property in 1980, burglary and possession of stolen property in 1983, and conspiracy to commit larceny from the person in 1991.

Most notably, the State showed that Mack was convicted of first-degree murder and sentenced to life in prison without possibility of parole for strangling a woman to death in 1994. [FN3] Evidence of Mack's prison disciplinary violations since his incarceration in 1994 was presented. Finally, a daughter and a son of May testified about the loss of their mother.

The defense presented several witnesses who expressed their belief that Mack's life was worth saving: Mack's uncle, two childhood friends, the mother of a childhood friend, and Mack's older brother. The brother also testified that their father had been violent to their mother. Mack's mother and sister and several friends of the family also submitted letters on his behalf.

A correctional casework specialist from Ely State Prison testified that she did not consider Mack to be a violent inmate and that any disciplinary problems appeared related to changes in medication he was taking to maintain his mental stability. She found that Mack was helpful with other inmates, and she believed that his life was worth saving.

Mack spoke in allocution. He offered condolences to May's family and apologized to his own family. He said that he could not find words to express his shame. Mack asked the panel for the opportunity to continue his rehabilitation in prison.

The panel found both aggravators beyond a reasonable doubt, and it found the following mitigating circumstances. Mack suffered from anxiety and psychotic disorders since his incarceration in 1994, though there was no evidence that he had a mental disorder at the time of the murder.

Mack had demonstrated a satisfactory adjustment to a maximum security setting and had been cooperative with institutional personnel. He had also been cooperative with court personnel. He was able to provide assistance to other inmates for their adjustment and rehabilitation.

Although there was no evidence of drug usage in committing the murder, Mack had abused controlled substances from high school at least up to 1990. He had demonstrated rehabilitation from such abuse during his incarceration. He had expressed regret that May was dead.

He currently had a stable family, some of whom had limited contact with him. He witnessed some acts of male-on-female violence as a child, but there was no evidence he was subjected to violence himself. Though he made threatening remarks on at least one occasion, he had not committed any acts of violence during his incarceration.

The panel did not consider the under-sentence-of-imprisonment aggravator in the weighing process, concluding that it deserved little weight. But it found that all the mitigating circumstances did not outweigh the sexual assault aggravating circumstance alone. Accordingly, the panel imposed a sentence of death.

On June 24, 2002, after the penalty hearing was concluded, the United States Supreme Court issued an opinion in Ring v. Arizona, [FN4] holding that a capital sentencing scheme requiring a judge to determine aggravating circumstances violates the Sixth Amendment right to a jury trial. Mack filed a post-trial motion arguing that Ring required that he receive a new penalty hearing before a jury. The district court held a hearing on the motion and denied it.

DISCUSSION

The three-judge panel's determination of appellant's death sentence after he requested a bench trial did not violate his right to a jury trial [1] Mack asserts that the death penalty imposed by the three-judge panel is unconstitutional and must be reversed and this matter must be remanded for a new penalty hearing before a jury.

He relies on the holding in Ring that a capital sentencing scheme requiring a judge to determine aggravating circumstances violates the Sixth Amendment right to a jury trial. If apposite, Ring would apply here because this is a direct appeal and Mack's conviction is not yet final. [FN5]

Applying Ring in Johnson v. State, this court held that a three-judge panel's finding of aggravating circumstances and imposition of death after the jury was unable to agree on a sentence violated the defendant's right to a jury trial. [FN6]

However, Ring and Johnson concerned defendants who pleaded not guilty and initially had jury trials; the opinions did not address a defendant's waiver of the right to a jury trial. [FN7] In Colwell v. State, this court concluded that Ring did not apply where a defendant pleaded guilty and waived his right to a jury trial. [FN8]

Mack claims that he wanted a bench trial only in regard to the guilt phase of his trial, not the penalty phase. In Colwell, this court determined that the record belied Colwell's claim "that he only waived his right to have a jury determine his guilt, not his right to have a jury determine aggravating circumstances." [FN9] The record showed that "Colwell was aware that if he pleaded guilty a three-judge panel would determine his sentence. He did not object to this, nor did he try to limit or condition in any way his waiver of his right to a jury trial." [FN10]

Similarly, the record here shows that Mack was aware that if his request for a bench trial was granted, a three-judge panel would determine his sentence. Like Colwell, he did not object to such a determination and did not try to limit or condition his waiver of his right to a jury trial.

Mack concedes that he did not request a jury determination of his sentence but argues that he had no choice but to accept determination of his sentence by the three-judge panel. Because the relevant statute, NRS 175.558, [FN11] does not provide the option of having a jury determine the sentence following a finding of guilt by the district court, Mack contends that he was unconstitutionally forced to forgo his right to a jury trial.

As just noted, however, the record repels Mack's claim that he actually wanted a jury to decide his sentence. So does logic: he fails to explain why he did not want a jury to decide his guilt but did want a jury to decide his sentence. Further, Mack did have a choice--between an entire trial before a jury or one without a jury. He was informed that this was his choice, and no one forced him to waive his right to a jury trial.

Offering a defendant the choice of having his entire trial before a jury or entirely without one does not appear to offend any of the reasoning in Ring, and the Supreme Court has stated elsewhere that "not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid." [FN12]

FN11. NRS 175.558 provides in relevant part: When any person is convicted of murder of the first degree upon ... a trial without a jury, and the death penalty is sought, the supreme court shall appoint two district judges from judicial districts other than the district in which the plea is made, who shall with the district judge before whom the plea is made, or his successor in office, conduct the required penalty hearing to determine the presence of aggravating and mitigating circumstances, and give sentence accordingly.

FN12. Corbitt v. New Jersey, 439 U.S. 212, 218, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) (rejecting a claim that offering a lower sentence in exchange for a guilty plea places an unconstitutional burden on the right to a jury trial and the right against compelled self-incrimination).

"[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." [FN13] A valid waiver of a fundamental constitutional right ordinarily requires "an intentional relinquishment or abandonment of a known right or privilege." [FN14]

Here, Mack exercised his authority to make the decision to waive a jury. The record shows that he was well aware of his right to a jury trial, consulted with his attorneys about the decision, had ample time to consider the decision, and intentionally and voluntarily relinquished that right.

We conclude that Mack validly waived his right to have his sentence determined by a jury and that the three-judge panel's determination of his sentence was constitutional. The death sentence is not excessive in this case

NRS 177.055(2) requires this court to review every death sentence and consider in addition to any issues raised on appeal: (b) Whether the evidence supports the finding of an aggravating circumstance or circumstances; (c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor; and (d) Whether the sentence of death is excessive, considering both the crime and the defendant.

Mack does not raise any claims in regard to the first two issues. We conclude that the evidence supports the two aggravators found by the panel and that there is no indication that passion, prejudice, or any arbitrary factor influenced the imposition of the sentence.

Mack does contend that his death sentence is excessive. He cites Haynes v. State, where this court quoted the Supreme Court's observation " 'that under contemporary standards of decency death is viewed as an inappropriate punishment for a substantial portion of convicted first-degree murderers' " and concluded that death was not appropriate. [FN15]

He also cites two other opinions by this court in which it determined that death sentences were inappropriate. [FN16] Mack points out that the panel gave weight to only one of the two aggravators, found numerous mitigating circumstances, and yet found that those circumstances cumulatively did not outweigh the one aggravating circumstance relied on. He asserts that the weight of the mitigators together "simply overwhelmed the sole aggravator."

In analyzing excessiveness under NRS 177.055(2)(d), this court has defined the crucial question as: "are the crime and defendant before us on appeal of the class or kind that warrants the imposition of death?" [FN17] "This inquiry may involve a consideration of whether various objective factors, which we have previously considered relevant to whether the death penalty is excessive in other cases, are present and suggest the death sentence under consideration is excessive." [FN18]

Mack fails to marshal the kind of objective factors which have persuaded this court that death sentences are excessive: in Haynes, a mentally disturbed defendant irrationally attacking a stranger and a single aggravating circumstance based on a fifteen-year-old armed robbery committed when the defendant was only eighteen; in Biondi v. State, a killing in an emotionally charged barroom confrontation and a single aggravating circumstance of a prior armed robbery; in Chambers v. State, an emotionally charged confrontation in which the defendant, who was drunk, was wounded and his professional tools were being ruined and a single aggravating factor based on eighteen-year-old robberies committed when the defendant himself was only eighteen. [FN19]

Here, by contrast, two aggravating circumstances exist, and Mack had an extensive, ongoing criminal history, including another strangulation murder of a female victim. [FN20]

There is no evidence of an emotionally charged confrontation, nor is there evidence that Mack lacked rational capacity. The panel recognized a number of mitigating circumstances but did not find them particularly weighty. We consider that finding reasonable and conclude that the death sentence is not excessive under NRS 177.055(2)(d).

FN20. This 1994 murder conviction was grounds for a third aggravating circumstance under NRS 200.033(2). It is not clear why the State did not offer it as such.

CONCLUSION

We affirm the judgment of conviction and sentence of death.

Daryl Mack