                convicted of a felony involving the use or threat of violence—and,
                concluding that the mitigating circumstances did not outweigh the
                aggravating circumstances, sentenced him to death. This appeal followed.
                Issues relating to jurors
                            First, Haberstroh argues that the district court erred by
                granting the prosecution's challenges for cause against two jurors because
                their views on the death penalty did not disqualify them from serving on
                the jury. "The test for evaluating whether a juror should have been
                removed for cause is whether a prospective juror's views would prevent or
                substantially impair the performance of his duties as a juror in accordance
                with his instructions and his oath." Weber v. State, 121 Nev. 554, 580, 119
                P.3d 107, 125 (2005) (internal quotation marks omitted).
                            With respect to prospective juror Anwar, in her questionnaire
                she expressed her belief in the death penalty but also indicated her
                discomfort with it; she expressed that the appropriateness of the death
                penalty depended on the nature of the case and that life in prison was the
                better option. Her answers during voir dire reflect a stronger opposition to
                the death penalty, where she indicated that she would not consider the
                death penalty because she did not believe "in killing someone as an option
                for punishment," although she acknowledged that if the crime was
                significant enough—something akin to mass murder—she might consider
                the death penalty. When pressed by the district court as to whether she
                could consider the death penalty, she responded that she could not. As to
                prospective juror Gregan, he expressed in his questionnaire that he would
                consider the death penalty where the crime was• severe but would not
                automatically vote for or against it. During voir dire, when asked whether
                he could consider all possible punishments, Gregan said that he would


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                 prefer not to sit on a death penalty jury and repeatedly expressed
                 discomfort with the death penalty. When pressed by the prosecutor and
                 the district court as to whether he could consider the death penalty, he
                 responded that he could not. We conclude that the district court did not
                 abuse its discretion by excusing these two prospective jurors for cause.
                 See United States v. Gabrion,        719 F.3d 511, 528 (5th Cir. 2013)
                 (concluding that trial court did not abuse its discretion by excluding
                 prospective juror who equivocated as to whether he could consider death
                 penalty); Walker v. State, 635 S.E.2d 740, 746-47 (Ga. 2006) (same); State
                 v. Tinsley, 143 S.W.3d 722, 733 (Mo. Ct. App. 2004) (same).
                             Second, Haberstroh argues that the district court abused its
                 discretion by dismissing juror Henshaw near the end of trial, over his
                 objection, where there was no misconduct and juror Henshaw indicated
                 that he could be fair and impartial after revealing to the district court that
                 he had been contacted the previous day by an investigator working on
                 behalf of Henshaw's nephew who was a defendant •in an out-of-state
                 capital prosecution. When asked if his ability to be fair and impartial in
                 this case was affected by his nephew's circumstances, Henshaw initially
                 responded that he did not believe that it would affect his ability to be fair
                 and impartial but that it caused him to "search [his] soul a little bit more."
                 Henshaw made several subsequent comments about how the information
                 about his nephew affected him but maintained that he could remain fair
                 and impartial. In excusing him, the district court concluded that no
                 misconduct had occurred but acknowledged that Henshaw "did seem
                 emotional in talking about these matters" and had "obviously" thought
                 about his nephew's case and what could potentially happen to him.
                 Noting Henshaw's representation that he could consider all the sentencing


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                 options, the district court nevertheless expressed concern that his
                 performance as a juror would be affected or influenced by emotions and his
                 connection to his nephew's case. Given the district court's broad discretion
                 regarding for-cause challenges, see Leonard v. State, 117 Nev. 53, 67, 17
                 P.3d 397, 406 (2001) (observing that trial court enjoys broad discretion in
                 ruling on for-cause challenges because those rulings involve factual
                 determinations), and its ability to observe Henshaw's demeanor during
                 the inquiry, see id. (noting that "Mlle trial court is better able to view a
                 prospective juror's demeanor than a subsequent reviewing court"), we
                 conclude that the district court ruling is supported by the record and there
                 was no abuse of discretion in removing Henshaw. 1 See NRS 16.080
                 (providing that "[a]fter the impaneling of the jury and before the verdict,
                 the court may discharge a juror upon a showing of. . any other inability
                 to perform the juror's duty"); NRS 175.071 (providing that before the
                 conclusion of the trial, and there being no alternate juror called or
                 available, a juror dies, or becomes disqualified or unable to perform the
                 juror's duty, the court may duly order the juror discharged").
                              Third, Haberstroh argues that misconduct occurred when one
                 or more jurors failed to acknowledge during jury selection that they did
                 not believe that a life-without-parole sentence meant that a defendant



                       1 We reject Haberstroh's contention that reversal is warranted
                 because the alternate juror who replaced Henshaw was unfavorably
                 disposed to him. He did not challenge the alternate juror for cause on any
                 basis and therefore cannot now complain that she was unqualified or
                 unsuitable to serve as a juror. See Moore v. State, 122 Nev. 27, 126 P3d
                 508 (2006) ("Failure to object during trial generally results in a waiver
                 thereby precluding appellate consideration of the issue.").




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                 would not be eligible for parole. As evidence of this misconduct, he
                 suggests that two notes sent out during deliberations that questioned the
                 meaning of a life-without-parole sentence contradicted the jurors'
                 representations in their questionnaires that they understood that they
                 must assume that a life-without-parole sentence meant the defendant
                 would not be released on parole. In response to the notes, the district
                 court directed the jurors to consult relevant instructions explaining the
                 sentencing options. Because Haberstroh concurred with the district
                 court's response and made no assertion of misconduct below, we review his
                 claim for plain error. See Saletta v. State, 127 Nev., Adv. Op. 34, 254 P.3d
                 111, 114 (2011); Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987
                 (1995). Merely requesting the district court to explain the meaning of a
                 life-without-parole sentence is not convincing evidence of misconduct and
                 absent some indication of an intentional misrepresentation during voir
                 dire, Haberstroh's allegation is nothing more than supposition.           See
                 Maestas v. State, 128 Nev., Adv. Op. 12, 275 P.3d 74, 85 (2012) ("[W]here
                 it is claimed that a juror has answered falsely on voir dire about a matter
                 of potential bias or prejudice,' the critical question is whether the juror
                 intentionally concealed bias." (quoting Lopez v. State, 105 Nev. 68, 89, 769
                 P.2d 1276, 1290 (1989))). Accordingly, he has not shown error that is
                 unmistakable from a casual inspection of the record.     Patterson v. State,
                 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995) (defining "plain" error).
                             Fourth, Haberstroh argues that the voir dire process was
                 unfair because the district court rejected his request to alternate between
                 the prosecution and the defense with respect to who first questioned each
                 prospective juror on the ground that the prosecution questions the
                 prospective jurors first "under the law." While nothing in the statute or


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                   this court's jurisprudence requires that the prosecution be afforded the
                   first opportunity to query prospective jurors, see NRS 175.031, Haberstroh
                   articulates no specific prejudice from the district court's ruling and
                   therefore, we conclude that a new penalty hearing is not warranted on this
                   ground. See Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937-38
                   (1978) (acknowledging that scope and manner of voir dire falls within the
                   district court's sound discretion and that discretion is afforded
                   considerable latitude on review). We also reject Haberstroh's contention
                   that voir dire was unfair because the district court improperly limited his
                   inquiry into the prospective jurors' willingness to impose a life sentence,
                   as the record shows that he was able to query them about whether they
                   could consider a sentence of life with the possibility of parole. See Johnson
                   v. State, 122 Nev. 1344, 1354-55, 148 P.3d 767, 774 (2006) (noting that the
                   scope of voir dire rests with the district court's discretion and its decisions
                   are entitled to considerable deference).
                   Challenges to the fairness of the penalty hearing
                               Haberstroh contends that his penalty hearing was unfair
                   because the jury was deprived of the opportunity to consider an
                   appropriate sentence. In this, he makes several arguments that we have
                   previously rejected, including that the district court should have granted
                   his request to exclude witnesses from the courtroom during the testimony
                   of other witnesses, Witter v. State, 112 Nev. 908, 917, 921 P.2d 886, 892
                   (1996) (holding that the exclusionary rule does not apply to the penalty
                   phase of a capital trial), abrogated on other grounds by Nunnery v. State,
                   127 Nev., Adv. Op. 69, 263 P.3d 235 (2011); the district court erred by
                   denying his motion to bifurcate his penalty hearing, see Weber v. State,
                   121 Nev. 554, 584, 119 P.3d 107, 128 (2005) (holding that the district court


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                 is not obligated to bifurcate the penalty hearing); and his constitutional
                 due process rights were violated by allowing the State to present the final
                 closing argument, see Blake v. State, 121 Nev. 779, 800, 121 P.3d 567, 580
                 (2005) (rejecting argument that due process concerns require allowing the
                 defense to argue last at the penalty hearing). Haberstroh's arguments
                 provide no compelling reason to abandon our prior decisions.   See Miller v.
                 Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008) (explaining that
                 under stare decisis doctrine, this court will not overturn precedent absent
                 compelling reason).
                               Haberstroh next contends that he was unfairly prejudiced by
                 the prosecution's introduction of "other matter" evidence,         see NRS
                 175.552(3), including his juvenile and adult criminal history along with
                 uncharged misconduct evidence including allegations that he sexually
                 assaulted three other women. Haberstroh's complaint concerning the
                 "other matter" evidence based on hearsay lacks merit as hearsay is
                 allowed in a capital penalty hearing as long as the evidence is reliable and
                 relevant, and its probative value is not substantially outweighed by the
                 danger of unfair prejudice. Summers v. State, 122 Nev. 1326, 1332 n.17,
                 148 P.3d 778, 783 n.17 (2006). He further argues that much of the "other
                 matter" evidence was highly suspect, impalpable, and stale. He refers to
                 his juvenile and adult criminal history that included offenses for which he
                 was not convicted or the charges were dismissed, specifically noting the
                 evidence that he sexually assaulted two women and evidence linking him
                 to a number o. from women that occurred approximately a month
                 after Kitowski's murder. Evidence of uncharged crimes is relevant and
                 "   may be admitted at a capital penalty hearing as other matter evidence"

                 because a sentencing decision "should be based on the entirety of a


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                 defendant's character, record, and the circumstances of the offense, but it
                 may be excluded from a capital penalty hearing if it is impalpable or
                 highly suspect" Nunnery, 263 P.3d at 249 (internal quotation marks and
                 citations omitted). Although much of Haberstroh's criminal history
                 references offenses and incidents that occurred decades ago, before his
                 current lengthy incarceration for Kitowski's murder, it is no less relevant
                 to the issue of his character and record and presenting that evidence did
                 not render the proceedings unfair.
                 Jury instructions
                              Haberstroh challenges two jury instructions related to the
                 definition and scope of mitigating circumstances and the district court's
                 decision to strike his argument concerning the deliberative process and
                 failure to give a curative instruction.
                              Haberstroh first contends that the "moral culpability"
                 language in the jury instruction defining mitigating circumstances should
                 not have been included because it erroneously conveyed to the jury that
                 mitigating circumstances must relate to the offense and explain or justify
                 the offense. This court considered a similar instruction in Watson v. State
                 and explained that "the proper inquiry . . . is whether there is a
                 reasonable likelihood that the jury has applied the challenged instruction
                 in a way that prevents the consideration of constitutionally relevant
                 [mitigating] evidence." 130 Nev. Adv., Op. 76, 335 P.3d 157, 173 (2014)
                 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). "A reasonable
                 likelihood is more than a mere possibility that the jury misunderstood the
                 law, but a defendant need not establish that the jury was more likely than
                 not to have been impermissibly inhibited by the instruction." Id. (internal
                 quotation marks omitted).


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                                     We conclude that there is not a reasonable likelihood that the
                       jury applied the mitigation instruction in a way that limited its
                       consideration of relevant mitigating evidence for three reasons. First,
                       although the first paragraph of the instruction used in this case uses the
                       "   moral culpability" language addressed in Watson, the instruction allowed
                       the jury to consider as a mitigating circumstance "any desire to extend
                       mercy to the [d]efendant." Second, because all of the mitigating
                       circumstances found by the jurors related to Haberstroh's character or
                       background, the jurors clearly understood that they could consider
                       mitigating circumstances unrelated to the crime itself. Finally, nothing in
                       the prosecutor's arguments suggested to the jury that it could not consider
                       evidence of Haberstroh's character and record as mitigating evidence.
                                     Haberstroh contends that the following jury instruction was
                       erroneous because it implied that the mitigating circumstances had to be
                       related to the crime rather than any reason for a sentence less than death.
                                     Murder of the first degree may be mitigated by any
                                     of the following circumstances, even though the
                                     mitigating circumstance is not sufficient to
                                     constitute a defense or reduce the degree of the
                                     crime. Defendant submits the following
                                     mitigating circumstances support a sentence less
                                     than death.
                       He proposed an alternative instruction that replaced "Murder in the first
                       degree" with "A sentence of death." We conclude that the district court did
                       not abuse its discretion by giving the instruction.   See Crawford v. State,
                       121 Nev. 744, 748, 121 P.3d 582, 585 (2005). The language tracks the
                       language found in NRS 200.035 (circumstances mitigating first-degree
                       murder), and does not imply that mitigation is limited to the
                       circumstances of the offense.


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                                   Haberstroh next argues that the district court erred by
                      striking his explanation of the weighing process during opening
                      statements and failing to offer a curative instruction because it was a
                      correct statement of the law under Evans v. State, 117 Nev. 609, 636, 28
                      P.3d 498, 517 (2001). Defense counsel informed the jurors that if any one
                      juror finds that the aggravators do not outweigh the mitigating
                      circumstances, they deliberate on the options of life with or without the
                      possibility of parole. At the prosecution's request, the district court struck
                      that portion of counsel's argument as an incorrect statement of law and
                      advised the jury that it would be instructed later in the proceedings. The
                      district court later acknowledged that defense counsel's opening statement
                      was correct but declined to give counsel's proposed curative instruction
                      and instead instructed the jury on the deliberative process in accordance
                      with Evans. While the district court erred by striking the challenged
                      comments, Haberstroh suffered no prejudice because the jury was
                      correctly instructed before deliberations began and jurors are presumed to
                      follow their instructions.   See Leonard v. State, 117 Nev. 53, 66, 17 P.3d
                      397, 405 (2001). 2
                      Aggravating circumstances
                                   Haberstroh argues that the two aggravating circumstances
                      found—he was under a sentence of imprisonment when he murdered



                            2 Haberstroh  asserts that the prosecutor committed misconduct by
                      misrepresenting the law regarding the weighing process at the eligibility
                      phase of the jury's sentence determination. Haberstroh suffered no
                      prejudice because the jury was correctly instructed on the law. Therefore,
                      no relief is warranted on this claim.




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                 Kitowski and he had a prior conviction for a felony involving the use or
                 threat of violence—are invalid.
                             Under sentence of imprisonment
                             Haberstroh argues that the under-sentence-of-imprisonment
                 aggravating circumstance is invalid because the State was precluded from
                 seeking it. In this, he contends that the trial court's decision in his prior
                 penalty hearing that the aggravating circumstance did not apply to
                 persons on parole was equivalent of an acquittal on the aggravating
                 circumstance and therefore double jeopardy precluded the State from
                 seeking it in the second penalty hearing. Because Haberstroh did not
                 challenge the aggravating circumstance on this ground below, we review
                 for plain error affecting his substantial rights.   See Valdez v. State,   124
                 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). We conclude that the State's
                 use of the under-sentence-of-imprisonment aggravating circumstance did
                 not violate double jeopardy principles where the trial court in the first
                 penalty hearing dismissed the aggravating circumstance based on a
                 misunderstanding of the law. See Poland v. Arizona, 476 U.S. 147, 149-51
                 (1986). Therefore, Haberstroh has not demonstrated plain error.
                             Haberstroh next argues that the under-sentence-of-
                 imprisonment aggravating circumstance is invalid because it violates ex
                 post facto principles as this court did not acknowledge that it applied to
                 persons on parole until years after Kitowski's murder. Because he did not
                 object to the aggravating circumstance on this ground below, his claim is
                 reviewed for plain error affecting his substantial rights.   See Valdez, 124
                 Nev. at 1190, 196 P.3d at 477. We have recognized that the Supreme
                 Court has applied ex post facto principles "to the judicial branch through
                 the Due Process Clause, which precludes the judicial branch 'from


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                  achieving precisely the same result' through judicial construction as would
                  application of an ex post facto law."     Stevens v. Warden, 114 Nev. 1217,
                  1221, 969 P.2d 945, 948 (1998) (quoting Bouie v. Columbia, 378 U.S. 347,
                  353-54 (1964)). "This 'judicial ex post facto' prohibition prevents judicially
                  wrought retroactive increases in levels of punishment in precisely the
                  same way that the Ex Post Facto Clause prevents such changes by
                  legislation." Id. Haberstroh points to Parker v. State, 109 Nev. 383, 393,
                  849 P.2d 1062, 1068 (1993), and Geary v. State, 110 Nev. 261, 266, 871
                  P.2d 927, 930 (1994), as the first cases where this court established that
                  the under-sentence-of-imprisonment aggravating circumstance included
                  persons on parole and suggests that because they were decided after the
                  murder in this case, applying them to him would be an ex post facto
                  violation. In concluding that NRS 200.033(1) encompasses probationers,
                  Parker_ relied on two cases—Grant v. State, 99 Nev. 149, 659 P.2d 878
                  (1983), and Adams v. Warden, 97 Nev. 171, 626 P.2d 259 (1981)—both of
                  which predated Kitowski's murder (1986) and Haberstroh's first trial
                  (1987). In those cases, we concluded that a grant of probation is a
                  suspension of execution of a state prison sentence, not a suspension of the
                  sentence; therefore a person on probation, although not incarcerated, is
                  under a sentence of imprisonment.       Grant, 99 Nev. at 150, 659 P.2d at
                  878-79; Adams, 97 Nev. at 172, 626 P.2d at 260. While Grant and Adams
                  do not concern NRS 200.033(1), they were instructive as to the meaning of
                  "under a sentence of imprisonment" at the time Haberstroh murdered
                  Kitowski Based on our reasoning in Grant and Adams and the use of
                  NRS 200.033(1) with respect to probationers in other capital cases tried
                  around the time of Kitowski's murder, see, e.g., Browning v. State, 124
                  Nev. 517, 539, 188 P.3d 60, 75 (2008); Bejarano v. State, 122 Nev. 1066,


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                1070, 146 P.3d 265, 268 (2006); Nevins v. State, 101 Nev. 238, 243, 699
                P.2d 1053, 1056 (1985), the meaning of "under sentence of imprisonment"
                expressed in Parker was not "unexpected and indefensible by reference to
                the law which had been expressed prior to the conduct in issue,'    Stevens,
                114 Nev. at 1221, 969 P.2d at 948 (quoting Bouie, 378 U.S. at 354), and
                therefore applying the aggravating circumstance consistent with Parker
                does not violate judicial ex post facto principles. Therefore, Haberstroh
                has not demonstrated plain error. 3
                              Haberstroh next asserts that the under-sentence-of-
                imprisonment aggravating circumstance fails to perform the narrowing
                function required by the Eighth Amendment. He encourages this court to
                overrule Parker and hold that this aggravating circumstance does not
                apply to parolees and probationers. We decline to overrule Parker, see
                Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008), and further
                conclude that Haberstroh is not entitled to relief as he fails to adequately
                explain why the aggravating circumstance fails to perform the
                constitutional narrowing function where it applies to a discrete group of
                defendants.
                              Haberstroh further contends that the prosecution established
                the under-sentence-of-imprisonment aggravating circumstance through
                substantial hearsay over his objection, leaving him unable to cross-
                examine his accusers as to the allegation that he was on parole when



                      3 We reject Haberstroh's contention that the under-sentence-of-
                imprisonment aggravating circumstance is unconstitutionally vague on
                the ground that there was no authority from this court holding that it
                could apply to a person on parole prior to the decision in Parker.




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                Kitowski was murdered. He suggests that the Sixth Amendment right to
                confrontation should apply to capital penalty trials, "especially when the
                evidence at issue applies to an aggravating circumstance that is necessary
                to establish eligibility for the death penalty." He urges this court to
                reconsider its contrary decision in Summers v. State, 122 Nev. 1326, 1327,
                148 P.3d 778, 779 (2006), "insofar as it concerns aggravators and the death
                penalty." We have affirmed Summers' holding, including challenges to the
                admission of hearsay evidence related to the eligibility prong of Nevada's
                death penalty scheme.    See Thomas v. State, 122 Nev. 1361, 1367, 148
                P.3d 727, 732 (2006); Johnson v. State, 122 Nev. 1344, 1353, 148 P.3d 767,
                773 (2006). We are not persuaded that it is appropriate to alter that
                holding. See Miller, 124 Nev. at 597, 188 P.3d at 1124.
                            Haberstroh further argues that reversal of his death sentence
                is warranted because the prosecution introduced false and misleading
                evidence to support the under-sentence-of-imprisonment aggravating
                circumstance. Because he did not object to the challenged evidence, his
                claim is reviewed for plain error.   Valdez, 124 Nev. at 1190, 196 P.2d at
                477. Haberstroh points to a federal agent's explanation of what it means
                to expire a sentence. Because the agent's explanation did not take into
                account sentence credits that may accelerate the expiration of a sentence,
                he argues that the testimony was misleading and prejudicial. We
                conclude that he has not shown plain error as other evidence showed that
                he was on parole at the time of Kitowski's murder.
                            Finally, Haberstroh argues that insufficient evidence supports
                the under-sentence-of-imprisonment aggravating circumstance. In this,
                he contends that the State should have introduced official documentation
                establishing that he was on parole at the time of Kitowski's murder or


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                testimony from a federal parole officer or other official charged with
                determining when his federal sentence expired, instead of presenting
                hearsay evidence and testimony from witnesses who had no personal
                knowledge of his parole status. While the type of evidence Haberstroh
                suggests was not presented, there is no authority compelling to State to
                prove the aggravating circumstance through any particular means.
                Further, the State presented sufficient evidence from which the jury could
                infer that he was under a sentence of imprisonment at the time of the
                murder.   See Origel-Candido ix State, 114 Nev. 378, 381, 956 P.2d 1378,
                1380 (1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979).
                            The jury learned that Haberstroh had two 1974 convictions
                pursuant to the National Motor Vehicle Theft Act (NMVTA) (also known
                as the Dyer Act) for which he received two concurrent six-year prison
                terms. He was paroled from those offenses on February 16, 1978. While
                on parole, he absconded but was eventually apprehended and incarcerated
                at the Leavenworth county jail in Kansas. On July 18, 1978, he attempted
                to escape from the Leavenworth County jail. On August 3, 1978, he
                pleaded guilty to escape and was sentenced to five years in prison to run
                consecutively to the two concurrent six-year terms he received on the
                NMVTA convictions. His sentences related to the NMVTA convictions
                expired on May 2, 1980. Haberstroh then started serving the sentence for
                the escape conviction. He was paroled on the escape conviction on
                December 2, 1983, had his last contact with his parole officer in January of
                1985, and thereafter absconded from parole. A bench warrant was issued
                on August 28, 1985. Testimony was introduced explaining that a sentence
                does not continue to run when a person is in absconder status and that
                from the time the bench warrant issued until the time of Kitowski's


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                 murder, Haberstroh was still under the sentence for the Leavenworth
                 escape. The jury also learned that Haberstroh admitted at his previous
                 trial that he was a parole violator when he "came out here," apparently
                 referring to Las Vegas, which his presentence investigation report
                 indicates occurred in February of 1985.
                             Prior-violent felony aggravating circumstance
                             The prior-violent-felony aggravating circumstance is based on
                 Haberstroh's felony conviction for escape from the Leavenworth County
                 jail During his escape, he threatened jail officer Michael Weber with a
                 shank. The State supported this aggravating circumstance in part by
                 introducing Weber's testimony from Haberstroh's first trial where he
                 described the circumstances of Haberstroh's escape. Haberstroh pleaded
                 guilty to escape. He complains that this aggravating circumstance is
                 invalid because the State failed to present sufficient evidence to show that
                 the felony escape conviction involved the use or threat of violence for the
                 purpose of NRS 200.033(2)(b) in accordance with Redeker v. Eighth
                 Judicial Dist. Court, 122 Nev. 164, 127 P.3d 520 (2006).
                             Redeker addressed what evidence may be relied on to satisfy
                 NRS 200.033(2)(b). 122 Nev. at 172, 127 P.3d at 526. In that case, the
                 State alleged a prior-violent-felony-conviction aggravating circumstance
                 based on the defendant's second-degree arson conviction, which was based
                 on a guilty plea. Id. at 168, 127 P.3d at 523. We concluded that where, as
                 with second-degree arson, it is not readily apparent from the statutory
                 elements that the offense involves the use or threat of violence, the
                 factfinder may look beyond the statutory elements to determine whether
                 the prior offense involved the use or threat of violence but that NRS
                 200.033(2)(b) "does not indicate that no limits should be placed on the sort


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                     of evidence that can be considered in making that determination."       Id. at
                     172, 127 P.3d at 526. In those circumstances, the fact-finder may consider
                     the charging documents, jury instructions, written plea agreement,
                     transcript of plea colloquy, and "any explicit factual finding by the district
                     court judge to which [the defendant] assented" underlying the prior
                     conviction to determine whether the offense involved the use or threat of
                     violence for purposes of NRS 200.033(2)(b). Id. at 172-73, 127 P.3d at 526;
                     see Hidalgo v. Eighth Judicial Dist. Court, 124 Nev. 330, 335-36, 184 P.3d
                     369, 374 (2008).
                                 Officer Weber's testimony revealed that Haberstroh
                     threatened him with a shank during the escape but that testimony is not
                     the type of evidence that may be used to establish this aggravating
                     circumstance under Redeker because it did not involve any explicit factual
                     finding by the trial judge to which Haberstroh assented. Although the
                     documentary evidence introduced—copies of his petition to plead guilty,
                     the indictment, and the judgment of conviction—may be considered under
                     Redeker, none of those documents indicate that Haberstroh's escape
                     involved the use or threat of violence. Because insufficient evidence
                     supports the aggravating circumstance, it is invalid. 4
                                 Because the prior-violent felony aggravating circumstance is
                     invalid, we must consider whether Haberstroh's death sentence may be
                     upheld. See Clemons v. Mississippi, 494 U.S. 738, 741 (1990) (holding that


                           4 Since  we conclude that the prior-violent-felony aggravating
                     circumstance was not validly established, but that the error does not merit
                     reversal, we do not consider Haberstroh's remaining challenges to the
                     validity of this aggravator.




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                 "the Federal Constitution does not prevent a state appellate court from
                 upholding a death sentence that is based in part on an invalid or
                 improperly defined aggravating circumstance either by reweighing of the
                 aggravating and mitigating evidence or by harmless-error review");
                 Pertgen v. State,   110 Nev. 554, 563, 875 P.2d 361, 366-67 (1994)
                 ("Reweighing involves disregarding the invalid aggravating circumstances
                 and reweighing the remaining permissible aggravating and
                 mitigating circumstances.").
                             In mitigation, the jury heard evidence concerning
                 Haberstroh's family history and background. His parents and older
                 siblings were deceased. The family was plagued by alcoholism; his mother
                 drank alcohol while pregnant with him. Haberstroh's sister, Judith, was
                 tasked with caring for her younger siblings, including Haberstroh. Judith
                 resented that duty and physically abused her charges, with Haberstroh
                 receiving the brunt of the abuse. On at least one occasion, Judith placed
                 him in a dark closet for hours. An aunt discovered him in the closet; it
                 appeared that he had been hung by his neck and was in and out of
                 consciousness. His father struck him with a belt with sufficient force to
                 leave welts. When Haberstroh was a teenager, his father engaged him in
                 fist fights as a disciplinary tool. His mother imposed punishment by
                 requiring him to kneel on the floor on top of dry grains of rice. Haberstroh
                 dropped out of school in the sixth grade. Psychological evaluations
                 completed while Haberstroh was in elementary school revealed that he
                 had an IQ of 87, had deep feelings of inadequacy, suffered from the effects
                 of his mother's alcoholism and emotional instability, suffered from
                 depression, and had issues with females in his life, including his mother.
                 He acted out in class, disturbed other children, and acted immaturely for


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                 his age. Haberstroh was prescribed tranquilizers, which he took four
                 times a day. When he reached 16 years old, Haberstroh began huffing
                 paint on a regular basis. He married at age 17 but divorced within one
                 year and joined the Navy. His abuse of alcohol and other substances
                 continued, and he had disciplinary problems during his brief time in the
                 Navy. Alter his discharge from the service, Haberstroh's alcohol abuse
                 continued, and he was unable to maintain steady employment and
                 engaged in various criminal activities. No family members have visited
                 Haberstroh during his incarceration.
                            The jury also heard evidence that Haberstroh had not engaged
                 in any assaultive misconduct in the past 27 years of incarceration and no
                 disciplinary infractions in the past 10 years of incarceration. Previous
                 confinements in the federal prison system noted two fistfights. He
                 obtained his GED in 1981, which decreased the likelihood that he would
                 be involved in serious violence in prison. His age, 58, also suggested a
                 lower risk of violence in prison. Haberstroh suffers from a number of
                 health issues, including fatigue, shortness of breath, low heart rate,
                 diabetic neuropathy, peripheral artery disease, cardiovascular disease,
                 and high blood pressure. His diabetes places him at risk for diabetic
                 retinopathy, which can lead to blindness and kidney damage. He is also in
                 need of dental care and routine health screenings. A neuropsychologist
                 explained that Haberstroh suffered from mental impairments that are
                 consistent with fetal alcohol syndrome and that had been diagnosed with
                 attention deficit hyperactivity disorder (ADHD). A psychologist related
                 that Haberstroh suffered from cognitive deficiencies and that he has
                 adjusted well to incarceration due the highly structured prison
                 environment. Finally, the jury learned about how parole operates and the


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                      factors the Parole Board considers in determining whether parole should
                      be granted, as well as the conditions of confinement at the Ely correctional
                      facility.
                                  As other matter evidence,     see NRS 175.552(3), the State
                      introduced evidence of Haberstroh's extensive juvenile and adult record,
                      including arrests/convictions for multiple instances of larceny of a motor
                      vehicle, possession of burglary tools, theft of money, forgery, absconding
                      from juvenile probation, eluding a police officer, two convictions under the
                      NMVTA, escapes from incarceration, numerous parole violations, strong-
                      arm robbery, unauthorized use of a vehicle, and trespassing. The jury also
                      heard evidence that Haberstroh sexually assaulted a woman after
                      abducting her at knifepoint from a grocery store parking lot. Another
                      woman testified about an incident on May 1, 1986, where a man abducted
                      her from a grocery store parking lot, forced her to drive her car to a
                      secluded area, and sexually assaulted her. The State introduced evidence
                      linking Haberstroh to thefts involving several women in August 1986—
                      approximately one month after Kitowski's murder; he was never charged
                      with those offenses. While the prior-violent-felony aggravating
                      circumstance is invalid, the jury could nevertheless consider evidence that
                      Haberstroh threatened a guard with a shank to effectuate his escape from
                      the Leavenworth jail in selecting the appropriate sentence after weighing
                      the aggravating and mitigating circumstances.          See NRS 175.552(3)
                      ("During the hearing, evidence may be presented concerning aggravating
                      and mitigating circumstances relative to the offense, defendant or victim
                      and on any other matter which the court deems relevant to the sentence,
                      whether or not the evidence is ordinarily admissible."); Browning v. State,
                      124 Nev. 517, 526, 188 P.3d 60, 67 (2008) (observing that the focus of a


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                   capital penalty hearing is on a defendant's "character, record, and the
                   circumstances of the offense"). Kitowski's mother, stepfather, and two
                   brothers testified about the devastating impact of Kitowski's murder and
                   described her as a caring, loving, helpful, and phenomenal sister.
                   Kitowski's 28-year-old son, an infant when she was murdered, is unable to
                   speak about his mother's death.
                               Considering all of the evidence presented, we conclude that
                   the jury would have found Haberstroh death eligible absent the prior-
                   violent-felony aggravating circumstance. The remaining under-sentence-
                   of-imprisonment aggravating circumstance is compelling as it indicates
                   that Haberstroh had not been amenable to rehabilitation or restraint.
                   Further, in light of his extensive juvenile and adult criminal history,
                   including the sexual assault of two women under circumstances similar to
                   Kitowski's murder, we conclude that the jury would have imposed death
                   absent the prior-violent-felony aggravating circumstance.
                   Mandatory review
                               NRS 177.055(2) requires that this court review every death
                   sentence and consider whether (1) sufficient evidence supports the
                   aggravating circumstances found, (2) the verdict was rendered under the
                   influence of passion, prejudice or any other arbitrary factor, and (3) the
                   death sentence is excessive. First, as explained above, the prior-violent-
                   felony aggravating circumstance is invalid because the State failed to
                   prove beyond a reasonable doubt that Haberstroh's conviction for escape
                   involved the use or threat of violence under NRS 200.033(2)(b), but the
                   under-sentence-of-imprisonment aggravating circumstance was proved
                   through evidence presented during the penalty hearing. Second, nothing
                   in the record indicates that the jury acted under any improper influence in


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                   imposing death. Although the jurors did not find all of the mitigating
                   circumstances Haberstroh proffered, at least one juror found that the
                   murder was mitigated by his family history of alcoholism, the physical
                   abuse he suffered from his parents and older siblings, his mental
                   deficiencies, and his current age. These findings evidence a reflective jury.
                   Third, the death sentence is not excessive. Although Haberstroh
                   presented credible mitigation evidence, the nature and circumstances of
                   his crimes, his lengthy criminal record, and evidence of his other sexual
                   assaults of women are compelling factors that favor a death sentence.
                   Under the circumstances, we conclude that based on the crime and the
                   defendant, the death sentence is not excessive.     See generally Dennis v.

                   State, 116 Nev. 1075, 1084-87, 13 P.3d 434, 440-42 (2000) (discussing and
                   applying excessiveness analysis)   . 5




                         5 We  reject Haberstroh's constitutional challenges to his death
                   sentence based on a 28-year delay between the time the offenses occurred
                   in 1986 and the penalty hearing in 2013, see Jones u. State, 539 S.E.2d
                   154, 158-59 (Ga. 2000) (finding meritless a "waiting for execution is
                   intolerably cruel' argument"), the lack of a constitutionally adequate
                   clemency process, see Nunnery v. State, 127 Nev., Adv. Op. 69, 263 P.3d
                   235, 257 (2011), and the failure of the capital penalty scheme to genuinely
                   narrow the defendants eligible for the death penalty, see Leonard v. State,
                   117 Nev. 53, 82-83, 17 P.3d 397, 415-16 (2001). We further reject
                   Haberstroh's claim of cumulative error, as the cumulative effect of any
                   errors established do not require reversal of the death sentence.       See
                   Valdez v. State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008) (noting
                   factors to consider in cumulative-error analysis).




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                                     Because review of this appeal reveals no errors that warrant
                      reversal of Haberstroh's death sentence, we
                                            ORDER the judgment of the district court AFFIRMED. 6


                                    tea-4-etn,     ,C.J.
                      Hardesty                                    Parraguirrer               j.
                                                                       (


                                                                  Saitta


                                                                    (7 C/1a                  J.
                      Gibbons                                     Pickering


                      cc:   Hon. Elissa F. Cadish, District Judge
                            Special Public Defender
                            Attorney General/Carson City
                            Clark County District Attorney
                            Eighth District Court Clerk




                            6 The Honorable Michael Douglas, Justice, did not participate in the
                      decision in this matter.




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