                 Motion to. relieve counsel

                              Rodriguez argues that the district court erred in denying his
                 motion to relieve counsel because counsel failed to negotiate for a better
                 plea deal than had been offered by the State. He further argues that the
                 district court's inquiry into his motion was inadequate and improperly
                 conducted in front of opposing counsel. He also contends that the district
                 court should not have forced him to waive his attorney-client privilege for
                 the hearing and then continue to trial with the same counsel when the
                 motion was denied.
                             We conclude that the district court did not abuse its discretion
                 in denying the motion to withdraw or discharge counsel.         See Young v.
                 State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004) (reviewing the "denial
                 of a motion for substitution of counsel for abuse of discretion"). Despite
                 his allegation of a conflict of interest, Rodriguez did not demonstrate that
                 counsel's loyalty was compromised. Rodriguez and counsel disagreed over
                 how to best obtain a favorable plea offer from the State. This difference of
                 opinion did not rise to the level of a "complete collapse of the attorney-
                 client relationship."   Id. at 969, 102 P.3d at 576. Further, as the State
                 clearly indicated that there was no possibility of a more lenient plea offer,
                 their disagreement was essentially moot. In addition, the district court's
                 inquiry was sufficient to address the concerns raised by Rodriguez and
                 counsel, as the district court addressed those concerns over several
                 hearings and considered the statements of Rodriguez, counsel, and the
                 district attorney. Rodriguez's waiver of his attorney-client privilege was
                 necessary to determine the extent of the alleged conflict. The inquiry was




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                      not broader than necessary to address the concerns over the plea
                      negotiations, so it did not hinder Rodriguez's ability to litigate the penalty
                      hearing. Therefore, the district court adequately inquired into the
                      grounds for the motion to withdraw, Rodriguez's reason for seeking
                      withdrawal was not meritorious, and the conflict did not prevent counsel
                      from presenting an adequate defense or result in an unjust verdict. See id.
                      (noting that this court considers `"(1) the extent of the conflict; (2) the
                      adequacy of the inquiry; and (3) the timeliness of the motion" when
                      reviewing a district court decision (quoting United States v. Moore, 159
                      F.3d 1154, 1158-59 (9th Cir. 1998))).
                      Juror challenge
                                  Rodriguez argues that the district court erred in denying his
                      challenge to potential juror McFarlin. We disagree. McFarlin's initial
                      statements indicated that (1) he believed that the death penalty was
                      appropriate for more than just murder cases and (2) death was the
                      appropriate sentence for murder and it was the role of the defense to prove
                      otherwise. Nevertheless, he acknowledged that he could listen to the
                      evidence and follow the instructions of the district court and the district
                      court instructed him to not presume that death is the appropriate penalty.
                      While McFarlin expressed strong feelings about the use of the death
                      penalty, the trial court's assessment of the juror's state of mind is entitled
                      to great deference.   Walker v. State, 113 Nev. 853, 865, 944 P.2d 762, 770
                      (1997) (recognizing that when a "prospective juror's responses are
                      equivocal, i.e., capable of multiple inferences, or conflicting, the trial
                      court's determination of that juror's state of mind is binding." (quoting




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                     People v. Livaditis, 831 P.2d 297, 303 (Cal. 1992))). Therefore, Rodriguez
                     did not demonstrate that the district court abused its discretion in denying
                     his challenge for cause.   Weber v. State, 121 Nev. 554, 580, 119 P.3d 107,
                     125 (2005). Moreover, although Rodriguez was compelled to use a
                     peremptory challenge to exclude McFarlin, we held in Blake v. State that
                     "the fact that a defendant had to use a peremptory challenge to achieve
                     that result does not mean that the defendant was denied his right to an
                     impartial jury," where the jury actually seated was impartial. 121 Nev.
                     779, 796, 121 P.3d 567, 578 (2005). Rodriguez does not allege that any
                     juror actually empanelled was unfair or biased, and while he encourages
                     this court to overrule Blake, he has not proffered a sufficient reason to
                     depart from this precedent.
                     Evidence of codefendants' sentences
                                  Rodriguez argues that the district court erred in denying his
                     motion to admit evidence of the more lenient sentences imposed for his
                     two codefendants. We discern no abuse of discretion.     See Ramet v. State,
                     125 Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing the admission of
                     evidence for abuse of discretion). We recognize, as Rodriguez points out,
                     that some jurisdictions consider a codefendant's sentence relevant to a
                     jury's sentencing decision. See, e.g., Ex parte Burgess, 811 So. 2d 617, 628
                     (Ala. 2000); State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989); Beardslee v.
                     Woodford, 358 F.3d 560, 579-80 (9th Cir. 2004). However, there is no
                     mandatory authority requiring the admission of such evidence, and we
                     have reiterated the importance of individualized sentencing that takes
                     into account a defendant's character, record, and the circumstances of the
                     offense.   Browning v. State, 124 Nev. 517, 526, 188 P.3d 60, 67 (2008);
                     Harte v. State, 116 Nev. 1054, 1069, 13 P.3d 420, 430 (2000). Moreover,


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                  Rodriguez and his codefendants were not similarly situated. Allen
                  pleaded guilty to avoid the death penalty.    Servin v. State, 117 Nev. 775,
                  793, 32 P.3d 1277, 1290 (2001). Servin was sentenced to death, but his
                  sentence was vacated as excessive based on his youth at the time of the
                  crime, his expression of remorse, the influence of drugs at the time of the
                  crime, and his lack of a significant criminal background. Id. at 793-94, 32
                  P.3d at 1290. Conversely, Rodriguez did not plead guilty; he was the
                  oldest of the three participants in the crime and, as he had known the
                  victim prior to the crime, the apparent orchestrator of the crime; and his
                  criminal history included a violent sexual assault on a 14-year-old victim.
                  Therefore, the district court did not abuse its discretion in denying the
                  motion to admit this evidence.
                  Motion to set aside sentence
                               Rodriguez contends that the district court erred in denying his
                  motion to set aside his death sentence because it is excessive considering
                  that he did not shoot the victim and his codefendants received life
                  sentences. We disagree. Rodriguez did not assert that there is insufficient
                  evident to support the jury's decision, NRS 175.381(2) (permitting a
                  district court to set aside verdict where insufficient evidence supports it),
                  or that he has an intellectual disability, NRS 175.554(5) (permitting the
                  district court to entertain a motion to set aside a death sentence based on
                  intellectual disability). The district court did not otherwise have
                  discretion to set aside his sentence.   See Hardison v. State, 104 Nev. 530,
                  534-35, 763 P.2d 52, 55 (1988) ("[A]fter a jury has assessed a penalty of
                  death, the judge has no discretion and must enter judgment according to
                  the verdict of the jury.").




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                     Constitutionality of his death sentence

                                 Rodriguez asserts that because the evidence shows that Servin
                     fired the shots that killed the victim and there have been so few
                     executions involving defendants who did not perform the actual killing for
                     which they were convicted, his sentence appears arbitrary and capricious
                     and therefore unconstitutional. We disagree. The record indicates that
                     Rodriguez intended that lethal force be employed or participated in the
                     robbery while exhibiting a reckless indifference to the Fondy's life.   See
                     Guy v. State, 108 Nev. 770, 783-84, 839 P.2d 578, 587 (1992) ("To receive
                     the death sentence, [a defendant] must have, himself, killed, attempted to
                     kill, intended that a killing take place, intended that lethal force be
                     employed or participated in a felony while exhibiting a reckless
                     indifference to human life." (quoting Doleman v. State, 107 Nev. 409, 418,
                     812 P.2d 1287, 1292-93 (1991))); accord Tison v. Arizona, 481 U.S. 137,
                     158 (1987) (holding that "major participant in the felony committed,
                     combined with reckless indifference to human life" is sufficient to satisfy
                     Eighth Amendment requirements for imposing death penalty). Rodriguez
                     knew Fondy and enough information about her financial condition to
                     believe that her safe contained a considerable sum of cash. He was
                     undoubtedly aware that she was paralyzed and ambulated with the use of
                     a wheelchair. He and two other assailants entered Fondy's home armed
                     with two firearms. Considering Fondy's inability to resist the
                     overwhelming force brought to bear in this robbery, it is evident that
                     Rodriguez and his confederates intended to employ lethal force or effect
                     the felony with a reckless indifference to her life. Moreover, Rodriguez
                     and his codefendants' statements after the crime indicate that they
                     intended a killing take place. In bragging about the crime later that


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                       night, Rodriguez stated, "[w]e did it, fool." Therefore, the record is
                       sufficient to demonstrate that Rodriguez had the necessary culpability for
                       a constitutionally imposed death sentence •2
                       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 arbitrary factor, and (3) the death
                       sentence is excessive. First, sufficient evidence supported the three
                       aggravating circumstances found—the murder was committed to avoid
                       lawful arrest, the murder involved torture and/or mutilation, and
                       Rodriguez had a prior conviction for a felony involving violence. Second,
                       nothing in the record indicates that the jury reached its verdict under the
                       influence of passion, prejudice, or any arbitrary factor. And third,
                       considering Rodriguez's role in orchestrating the crime, during which
                       considerable violence was visited on a vulnerable victim, Rodriguez's prior
                       sexual assault conviction, and the evidence in mitigation, we conclude that
                       Rodriguez's sentence was not excessive.




                             2The jury found that the murder was committed to avoid or prevent
                       a lawful arrest, the murder involved torture or mutilation, and that
                       Rodriguez had been previously convicted of a felony crime involving the
                       use or threat of violence. The jury had been instructed on the statutory
                       mitigating circumstances pursuant to NRS 200.035. The record does not
                       indicate that the jury found any mitigating circumstances. The jury
                       further concluded that any mitigating circumstance or circumstances were
                       not sufficient to outweigh the aggravating circumstances found and
                       sentenced Rodriguez to death.


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                             Having considered Rodriguez's contentions and concluded that
                 they lack merit, we
                             ORDER the judgment of convi tion AFFIRMED.

                                                                              , C.J.
                                                   Hardesty


                                                     S:2010r
                                                    --
                                                   Parraguirre
                                                                                 J.



                                                        :;"1,%
                                                   Douglas
                                                             9                   J.



                                                                                 J.




                 cc: Hon. Brent T. Adams, District Judge
                      David Kalo Neidert
                      Attorney General/Carson City
                      Washoe County District Attorney
                      Washoe District Court Clerk




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                   PICKERING, J., with whom CHERRY and SAITTA, JJ., agree, dissenting:
                                We respectfully dissent.
                                In a death penalty case, it is "desirable for the jury to have as
                   much information before it as possible when it makes the sentencing
                   decision."   Gregg v. Georgia, 428 U.S. 153, 204 (1976). At his penalty
                   hearing, Rodriguez sought to introduce evidence of the life sentences that
                   his two accomplices, Robert Servin and Brian Allen, received. Initially,
                   the district judge deemed this evidence relevant and admissible, then
                   reversed himself and excluded it. We recognize the split of authority that
                   exists nationally on the admissibility of accomplice sentences in a death
                   penalty hearing, see PosteIle v. State, 267 P.3d 114, 140-41 (Okla. Crim.
                   App. 2011) (collecting cases), and that ordinarily, the admission or
                   exclusion of evidence is entrusted to the sound discretion of the district
                   court, which an appellate court will not reverse absent abuse. But unless
                   we are prepared to hold such evidence per se inadmissible—and this is not
                   the law in Nevada, see Flanagan v. State, 107 Nev. 243, 247-48, 810 P.2d
                   759, 762 (1991), vacated by Moore v. Nevada, 503 U.S. 930 (1992)—
                   Rodriguez's sentencing jury should have been told that the actual shooter,
                   Servin, received a life sentence, as did Allen, his accomplice. We recognize
                   that Rodriguez was 19 and had a prior violent felony in his background,
                   whereas Servin and Allen were 16 and 17, respectively, without significant
                   criminal histories. Nonetheless, the life sentences Servin and Allen
                   received were relevant to the jury's determination of whether death was
                   an appropriate sentence for Rodriguez. Since evidence of Servin's and
                   Allen's participation was already before them, the evidence did not pose a
                   significant danger of misleading the jury or delaying the proceeding. And,
                   given that Rodriguez was not the shooter and may have been convicted on
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                a felony murder theory, 1 we cannot say that the district court's failure to
                admit this evidence was harmless.
                            The jury must "be able to consider and give effect to all
                relevant mitigating evidence."    Boyde v. California, 494 U.S. 370, 377
                (1990). Mitigation evidence includes "any aspect of a defendant's
                character or record and any of the circumstances of the offense that the
                defendant proffers as a basis for a sentence less than death."    Lockett v.
                Ohio, 438 U.S. 586, 604 (1978). The majority of this court has joined
                jurisdictions that have concluded that an accomplice's sentence does not
                relate to a defendant's character or record nor is it a circumstance of the
                offense. See Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir. 1986)
                (concluding that codefendant's sentence not relevant to defendant's
                character or •record); People v. Moore, 253 P.3d 1153, 1181 (Cal. 2011)
                (similar); Crowder v. State, 491 S.E.2d 323, 325 (Ga. 1997) (similar); State
                v. Roache, 595 S.E.2d 381, 426 (N.C. 2004) (similar); State v. Charping,
                508 S.E.2d 851, 855 (S.C. 1998) (similar); Saldano v. State, 232 S.W.3d 77,
                100 (Tex. Crim. App. 2007) (similar). But reasonable minds can disagree,
                and several jurisdictions consider disparity in codefendants' sentences to
                be mitigating evidence.   See Ex parte Burgess, 811 So. 2d 617, 628 (Ma.
                2000) (considering state statute that requires proportionate sentencing in


                       'Juries often reject the death penalty in cases where the defendant
                "did not commit the homicide" or "was not present when the killing took
                place." Enmund v. Florida, 458 U.S. 782, 795 (1982). In fact, as the Court
                observed in Enmund, "only a small minority of jurisdictions-eight-allow
                the death penalty to be imposed solely because the defendant somehow
                participated in a robbery in the course of which a murder was committed,"
                and less than 2% of those executed between 1954 and 1982 were
                nontriggermen. Id. at 792.

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                  concluding that lenient treatment of accomplices was mitigating factor);
                  State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989) (similar); State v.
                  Ferguson, 642 A.2d 1267, 1269 (Del. Super. Ct. 1992) (similar); see also 18
                  U.S.C. § 3592(a)(4) (2006) ("In determining whether a sentence of death is
                  to be imposed on a defendant, the finder of fact shall consider any
                  mitigating factor, including the following: (4) Equally culpable
                  defendants.—Another defendant or defendants, equally culpable in the
                  crime, will not be punished by death.").
                              Just as the State may present evidence about matters
                  unrelated to aggravating circumstances, a defendant is not limited to
                  presenting only mitigating evidence. A capital sentencing hearing has two
                  distinct phases: an "eligibility phase," during which the jury narrows
                  those defendants eligible for the death penalty, and a "selection phase,"
                  during which the jury decides "whether to impose a death sentence on an
                  eligible defendant." Summers v. State, 122 Nev. 1326, 1336, 148 P.3d 778,
                  785 (2006) (Rose, J., concurring in part and dissenting in part); see also
                  Kansas v. Marsh, 548 U.S. 163, 173-74 (2006) (noting that capital
                  sentencing procedures "must: (1) rationally narrow the class of death-
                  eligible defendants; and (2) permit a jury to render a reasoned,
                  individualized sentencing determination based on a death-eligible
                  defendant's record, personal characteristics, and the circumstances of [the]
                  crime"). The jury's discretionS must be channeled when determining
                  whether aggravating circumstances exist and whether any circumstances
                  that are found are outweighed by any mitigating circumstances found, but
                  should be broadened to allow an individualized determination of whether
                  death is an appropriate sentence.   Summers, 122 Nev. at 1337, 148 P.3d
                  785. As part of this individual determination, "evidence may be

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                     presented .. . on any other matter which the court deems relevant to the
                     sentence, whether or not the evidence is ordinarily admissible." NRS
                     175.552(3) (emphasis added). As evidence relevant to mitigation has been
                     "broadly defined," we have noted that "this provision is of little practical
                     benefit to the defendant."   Hollaway v. State, 116 Nev. 732, 746, 6 P.3d
                     987, 997 (2000). But it is not without any benefit.
                                 In our view, the evidence concerning Servin's and Allen's
                     sentences is relevant to the selection phase of the penalty hearing. The
                     death penalty is reserved for those defendants who are "the worst of the
                     worst." Roper v. Simmons, 543 U.S. 551, 568 (2005) ("Capital punishment
                     must be limited to those offenders who commit a narrow category of the
                     most serious crimes and whose extreme culpability makes them the most
                     deserving of execution." (internal quotation marks)). Capital juries are a
                     critical "link between contemporary community values and the penal
                     system." Gregg, 428 U.S. at 181 (quoting Witherspoon v. Illinois, 391 U.S.
                     510, 519 n.15 (1968)). They use the contemporary values to assess a
                     defendant's moral culpability and impose an appropriate punishment.      See
                     People v. Karis 758 P.2d 1189, 1204 (Cal. 1988) ("In weighing the
                     appropriate penalty, deciding between death and life imprisonment
                     without possibility of parole, the jury performs a normative function,
                     applying the values of the community to the decision after considering the
                     circumstances of the offense and the character and record of the
                     defendant"); see also Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d 157,
                     172-74 (2014) (noting several factors, including moral culpability, as
                     relevant to a capital sentencing determination). This selection process is
                     important to maintaining a system where there are meaningful
                     distinctions between those cases where the death penalty is imposed and

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                 the cases where it is not imposed.    See Callins v. Collins, 510 U.S. 1141,
                 1147 (1994) (Blackmun, J., dissenting) (noting that penalty scheme
                 requires a "meaningful basis for distinguishing the few cases in which
                 [the death penalty] is imposed from the many cases in which it is not"
                 (alteration in original) (quoting Furman v. Georgia, 408 U.S. 238, 313
                 (1972) (White, J., concurring))). Accordingly, we owe jurors a duty to
                 present all the information necessary to properly effect contemporary
                 community values in the case at hand. See also ABA Principles for Juries
                 and Jury Trials, Principle 13 (2005) ("The court and parties should
                 vigorously promote juror understanding of the facts and the law."). And
                 where multiple defendants are responsible for the criminal conduct which
                 resulted in a death, consideration of the moral culpability of those other
                 defendants and the penalties levied against them, to the extent that
                 information is available, can help the jury to make a reasoned and moral
                 judgment about whether death is appropriate for any of the perpetrators.
                 See Simmons v. South Carolina, 512 U.S. 154, 172 (1994) ("The Eighth
                 Amendment entitles a defendant to a jury capable of a reasoned moral
                 judgment about whether death, rather than some lesser sentence, ought to
                 be imposed.") (Souter, J., concurring); United States v. Gabrion, 719 F.3d
                 511, 524 (6th Cir. 2013) (Mitigation evidence relating to "whether
                 la]nother defendant or defendants, equally culpable in the crime, will not
                 be punished by death' ... does not measure the defendant's culpability
                 itself, but instead considers—as a moral data point—whether that same
                 level of culpability, for another participant in the same criminal event,
                 was thought to warrant a sentence of death. Hence this factor likewise
                 addresses whether the defendant's culpability warrants death."
                 (alteration in original) (quoting 18 U.S.C. § 3592(a)(4) (2012))). This court

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                has even considered evidence of a codefendant's sentence to be proper and
                helpful" for the jury's consideration during a capital penalty hearing when
                that evidence was offered by the State.     Flanagan, 107 Nev. at 248, 810
                P.2d at 762.
                               We further conclude that the evidence did not pose a danger of
                misleading the jury.     See NRS 48.035(1) ("Although relevant, evidence is
                not admissible if its probative value is substantially outweighed by the
                danger of unfair prejudice, of confusion of the issues or of misleading the
                jury."). All the perpetrators were teenagers. They had not developed such
                lengthy social and criminal histories that explaining the differences
                between them would have taken the presentation of evidence in this case
                too far afield. In fact, during oral argument the State could not provide a
                single reason why admission of this evidence would cause undue delay or
                confusion, and the majority was able to condense the key reasons for
                Allen's and Servin's sentences to less than half of a paragraph: "Allen
                pleaded guilty to avoid the death penalty. Servin was sentenced to death,
                but his sentence was vacated as excessive based on his youth at the time
                of the crime, his expression of remorse, the influence of drugs at the time
                of the crime, and his lack of significant criminal background." (citations
                omitted). But even if the majority were correct about delays, "death is
                different," Gregg, 428 U.S. at 188, and the criminal justice system owes
                the utmost care to capital defendants and the jurors entrusted with the
                unenviable task of sentencing them. Zant v. Stephens, 462 U.S. 862, 884-
                85 (1983) ("[B]ecause there is a qualitative difference between death and
                any other permissible form of punishment, 'there is a corresponding
                difference in the need for reliability in the determination that death is the
                appropriate punishment in a specific case." (quoting Woodson v. North

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                   Carolina, 428 U.S. 280, 305 (1976))). Therefore, we conclude that the
                   district court abused its discretion in denying Rodriguez's motion to admit
                   evidence concerning his accomplices' sentences.    See Barnet v. State, 125
                   Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing the admission of
                   evidence for abuse of discretion).
                               We further conclude that this error was not harmless,        see
                   Newman v. State, 129 Nev., Adv. Op. 24, 298 P.3d 1171, 1181 (2013) ("A
                   nonconstitutional error, such as the erroneous admission of evidence at
                   issue here, is deemed harmless unless it had a substantial and injurious
                   effect or influence in determining the jury's verdict." (internal quotation
                   marks omitted)), and cannot withstand our mandatory review under NRS
                   177.055. Rodriguez, Servin, and Allen robbed the victim. Servin and
                   Allen brought weapons and Servin stated that he was prepared to shoot
                   the victim if need be. Rodriguez was unarmed. After robbing the victim,
                   Servin shot her to death while Rodriguez and Allen were outside the
                   residence. Rodriguez was charged under both the premeditated and
                   felony-murder theories of liability. The verdicts do not indicate under
                   which theory Rodriguez was convicted, but it appears reasonably certain
                   that the jury held Rodriguez "strictly accountable for the consequences of
                   perpetrating a felony," under the felony-murder theory.            Sanchez-
                   Dominguez v. State, 130 Nev., Adv. Op. 10, 318 P.3d 1068, 1075 (2014); see
                   State v. Contreras, 118 Nev. 332, 334, 46 P.3d 661, 662 (2002) ("The
                   felonious intent involved in the underlying felony is deemed, by law, to
                   supply the malicious intent necessary to characterize the killing as a
                   murder, and .. . no proof of the traditional factors of willfulness,
                   premeditation, or deliberation is required for a first-degree murder
                   conviction."). In our view, it is reasonably unlikely that the jury would

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                      have sentenced Rodriguez—a nonshooter—to death if it had the benefit of
                      the knowledge that the other perpetrators, who were equally or more
                      morally culpable for the murder, received life sentences. Consequently,
                      we would reverse and remand for a new penalty hearing.




                                                   J.




                      Saitta




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