                 to get out of bed and investigate. Within moments of getting up, they
                 heard "what sounded like power tools." Lestelle ran out of the bedroom
                 with Reyes following. Seconds later, Lestelle ran back toward the
                 bedroom, telling Reyes to call 911 while he searched his backpack for his
                 gun. As she was dialing 911, they saw a chainsaw coming through the
                 apartment door. The chainsaw stopped. Suddenly, Lestelle turned
                 around, told Reyes, "They are here." Bullets pierced through the front
                 door, and Lestelle pushed Reyes back in to the bedroom. As she fell
                 backward in to the bedroom, she felt "pressure all over [her] body" and
                 watched Lestelle fall to the left of her. She felt herself being shot
                 numerous times. Nearly unconscious and in pain and bleeding, she heard
                 the 911 dispatcher calling out over the phone and shortly thereafter police
                 officers found her. Reyes suffered eight gunshot wounds. She survived,
                 but her unborn child did not.' Lestelle was shot multiple times and died
                 as the result of a gunshot wound to his chest.
                             When asked at the scene who could have committed the
                 shooting, Reyes told police officers that it could have been related to
                 Lestelle recently gaining custody of his young son or it could have been
                 Keck. During transport to the hospital, she told a police officer that she
                 thought Keck had shot her. Other testimonial and forensic evidence
                 connected Keck to the shootings.
                             The jury convicted Keck of first-degree murder with the use of
                 a deadly weapon, attempted murder with the use of a deadly weapon,


                       1 Several
                               days later, when Reyes regained sufficient strength, labor
                 was induced. A bullet fell out of Reyes during delivery of the baby.




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                   manslaughter killing of an unborn quick child, attempted burglary while
                   in possession of a deadly weapon, and assault with the use of a deadly
                   weapon. 2
                                 The State sought the death penalty based on four aggravating
                   circumstances: (1) Keck had been previously convicted of a felony
                   involving the use or threat of violence to another person (attempted
                   murder of Reyes with the use of a deadly weapon); (2) he had been
                   previously convicted of a felony involving the use or threat of violence to
                   another person (assault of Staley with the use of a deadly weapon); (3) he
                   killed Lestelle during a burglary; and (4) he knowingly created a great risk
                   of death to more than one person. The evidence supporting the
                   aggravating circumstances related exclusively to the circumstances of the
                   crime. As other evidence in aggravation,         see NRS 175.552(3), the
                   prosecution introduced evidence of Keck's moderate criminal and prison
                   disciplinary history. Photographs were admitted showing him holding an
                   AK-47 rifle and a tattoo on his shoulder depicting a baby's head with the
                   words "kill babies" above it. The prosecution also presented victim-impact
                   testimony from Lestelle's mother, father, and grandfather who described
                   Lestelle's artistic talent and the devastating impact his death has had on
                   the family.




                         2The judgment of conviction incorrectly reflects that Keck was
                   convicted of burglary while in possession of a deadly weapon. We direct
                   the district court to correct the judgment of conviction to reflect that he
                   was convicted of attempted burglary while in possession of a deadly
                   weapon.



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                             In mitigation, Keck introduced testimony of family members
                 and friends who described his upbringing, positive aspects of his
                 personality, his artistic talent, and the depression he suffered after his
                 father suffered a stroke and his relationship with Reyes ended. He also
                 presented medical evidence and testimony indicating that his core mental
                 disturbance was schizotypal personality disorder, which resulted in
                 paranoia and odd and inappropriate behavior. His medical history reveals
                 that he had experienced anxiety, depression, and• substance abuse
                 problems. Brain scans suggested that he may have suffered head trauma
                 at some point in his life, which could have led to "odd, peculiar behavior"
                 and "catastrophic failure in [his] impulse control and [his] judgment."
                 Testimony also revealed that Keck experienced complications with
                 medications he was taking for his mental health problems. Keck
                 expressed remorse and shame for his actions.
                             The jury found all of the aggravating circumstances
                 submitted. Keck proffered five mitigating circumstances for the jury's
                 consideration: (1) he was under the influence of extreme mental or
                 emotional distress when he killed Lestelle, (2) he had mental health
                 issues, (3) he served in the United States Navy, (4) his father had suffered
                 a stroke and subsequent illness, and (5) any other mitigating
                 circumstance. At least one juror found that the murder was mitigated by
                 Keck's mental health issues. After concluding that the mitigating




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                 circumstances did not outweigh the aggravating circumstances, the jury
                 imposed death. 3 This appeal followed.
                 Batson challenge
                               Keck argues that the district court erred by denying his
                 objection to the prosecution's use of peremptory challenges against two
                 black women in violation of the Equal Protection Clause and Batson v.
                 Kentucky,     476 U.S. 79 (1986). Because he did not challenge the
                 prosecution's exercise of peremptory strikes against those jurors until
                 after the jury had been sworn and the remaining venire members were
                 excused, his objection was untimely and therefore he waived review of this
                 issue on appeal. Chambers v. Johnson, 197 F.3d 732, 735 (5th Cir. 1999)
                 (holding that Batson objection must be raised before venire is dismissed);
                 United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994) (concluding that
                 "a Batson objection must be made at the latest before the venire is
                 dismissed and before the trial commences"); Dias v. Sky Chefs, Inc., 948
                 F.2d 532, 534 (9th Cir. 1991) (concluding that Batson challenge was
                 untimely where objection to peremptory strikes was made after excluded
                 jurors dismissed and jury had been sworn); see also Rhyne v. State, 118
                 Nev. 1, 11 n.26, 38 P.3d 163, 170 n.26 (2002) (concluding that defendant's
                 failure to object to prosecution's peremptory strikes of women jurors




                       3 Thedistrict court sentenced Keck to multiple definite concurrent
                 and consecutive terms in prison ranging from 12 to 60 months to 96 to 240
                 months for the remaining offenses and sentence enhancements.




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                     waived his challenge on appeal, citing Dias, Chambers, and Parham).4
                     Therefore, we decline to consider his Batson challenge.
                     Evidentiary challenges
                                  Keck challenges several pieces of evidence admitted during
                     the penalty hearing. First, he argues that the admission of evidence and
                     testimony related to his criminal history and detention records constituted
                     inadmissible hearsay, its admission violated his Sixth Amendment right to
                     confrontation, and the evidence was impalpable and highly suspect. With
                     the exception of evidence related to his alleged assault of a man at Lake
                     Mead, Keck did not object to the admission of the challenged evidence. We
                     review his unpreserved claims of error for plain error affecting his
                     substantial rights.   Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465,
                     477 (2008). To the extent his challenges include the Lake Mead incident,
                     we review for harmless error. See Knipes v. State, 124 Nev. 927, 935, 192
                     P.3d 1178, 1183 (2008) (explaining standards of review for constitutional
                     and nonconstitutional error). As we explained in Summers v. State, 122
                     Nev. 1326, 1333, 148 P.3d 778, 783 (2006), the Sixth Amendment right to
                     confrontation does not apply to capital sentencing hearings, and Keck has
                     not presented any persuasive reason to overrule Summers. See Miller v.
                     Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008) ("[U]nder the doctrine


                           4 We reject Keck's contention that the record precludes a conclusion
                     that his Batson objection was untimely because several unrecorded bench
                     conferences occurred immediately before the jury was sworn and the
                     remaining veniremembers were excused. Nothing in the record suggests
                     that he raised a Batson objection during any of those unrecorded bench
                     conferences.



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                  of stare decisis, we will not overturn [precedent] absent compelling
                  reasons for so doing." (footnote omitted)). Further, we have observed that
                  hearsay is generally admissible in a capital penalty hearing.      See NRS
                  175.552(3); Thomas v. State, 114 Nev. 1127, 1147, 967 P.2d 1111, 1124
                  (1998). Finally, we conclude that Keck has not demonstrated that any of
                  the challenged evidence was impalpable or highly suspect.       See Silks v.
                  State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). Second, Keck argues
                  that the prosecution failed to provide notice of certain evidence offered in
                  aggravation as required by NRS 175.552 and SCR 250(4)(0—specifically,
                  evidence that he believed Lestelle's three-year-old son was in the
                  apartment on the night of the shooting. In its notice of aggravation, the
                  prosecution indicated that the great-risk-of-death aggravating
                  circumstance would be supported in part by evidence adduced at trial that
                  Lestelle's son resided in the apartment but was not home at the time of
                  the shootings. The notice did not expressly allege that Keck was aware
                  that the child lived in the apartment. We conclude that adequate notice
                  was given. Evidence that he was aware that the boy lived in the
                  apartment merely established the mens rea required to prove the
                  aggravating circumstance.
                  Prosecutorial misconduct
                              Keck argues that the State committed misconduct during the
                  penalty hearing by purposefully eliciting "holiday" testimony and
                  appealing to the jury's passions throughout its rebuttal argument thereby
                  violating his federal and state constitutional rights to "due process, equal
                  protection, a fair trial, fundamental fairness, his right to be free from




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                      prosecutorial misconduct, and his right to be free from cruel and unusual
                      punishment." 5 He also argues that the prosecutor committed misconduct
                      by arguing facts not in evidence. Improper argument is prejudicial when
                      it so infects the proceedings with unfairness as to make the results of the
                      proceeding a denial of due process.   Thomas v. State, 120 Nev. 37, 47, 83
                      P.3d 818, 825 (2004); Blake v. State, 121 Nev. 779, 796, 121 P.3d 567, 578
                      (2005). Alleged improper statements should be considered in context.
                      Browning v. State, 124 Nev. 517, 533, 188 P.3d 60, 72 (2008). Because
                      Keck failed to object to the challenged testimony and argument, his claim
                      is reviewed for plain error. See Valdez, 124 Nev. at 1190, 196 P.3d at 477.
                      While Keck has not demonstrated plain error affecting his substantial
                      rights regarding any of his challenges, we are compelled to address two of
                      the prosecutor's arguments that we deem inflammatory and therefore
                      improper.
                                  Wedding argument
                                  Keck challenges a lengthy passage of the prosecutor's rebuttal
                      argument as inflammatory and designed to impassion the jury. The
                      essence of the prosecutor's argument is as follows. The defense counsel's
                      reference to weddings in his closing penalty hearing argument prompted
                      the prosecutor to think about "Angel and Jonathan and the wedding day
                      they will never have" and the wedding Lestelle's young son, Trenton, may
                      have in 15 years. The prosecutor commented on how Trenton might

                            5 There is no express constitutional right to a trial free from
                      prosecutorial misconduct, and Keck does not explain how his rights to be
                      free from cruel and unusual punishment and equal protection are
                      implicated by the prosecutor's alleged misconduct.




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                explain his father's absence "on the most important day of [his] life to a
                wedding guest." Trenton would explain that his father was murdered,
                and, assuming imposition of life imprisonment, the killer was still alive
                and could receive visitors in prison. The prosecutor argued• that Trenton
                might explain that even though the killer unsuccessfully attempted to kill
                Reyes, the jury sentenced the killer to life in prison. The wedding guest
                might also ask Trenton about his siblings, to which Trenton might respond
                that Reyes was pregnant with his little brother, but the baby died and the
                jury let the killer live even though the killer knew Reyes was pregnant.
                            Although defense counsel referred to a hypothetical wedding
                during his closing argument, the context of counsel's comments entreated
                the jurors to imagine themselves at a wedding reception where a guest
                comments that he has jury duty and other guests describe to this person
                how awful jury duty is and suggest ways to avoid it. Counsel's
                hypothetical scenario then turned to the guest having served on a capital
                case where death was imposed and the guest being peppered with
                comments that the defendant's crimes must have been akin to those
                committed on September 11, 2001, or a mass shooting, or the kidnapping,
                sexual assault, and killing of a child. In contrast, the prosecutor's
                argument asked the jurors to imagine Trenton's future wedding day—an
                event that conjures up strong familial emotions—and how he might
                explain his father's absence and the absence of his deceased sibling (Reyes'
                unborn child). Simply because defense counsel employed a wedding
                scenario in his closing argument did not open the door to using that event
                for an improper purpose. Arguments touching upon the absence of a
                murdered loved one on holidays or important life events such as a wedding
                serve only to appeal to jurors' emotions rather than guiding jurors to

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                legitimate sentencing considerations. While the setting of a wedding was
                not of particular importance to defense counsel's argument, it was of
                crucial significance to the prosecutor's argument. We conclude that the
                prosecutor's "wedding" argument did not fall within the purview of
                appropriate rebuttal but was designed to inflame the passions and
                sympathy of the jury. However, misconduct was committed by defense
                counsel as well. Although defense counsel's use of a wedding venue is not
                overly troubling in this particular instance, the overall tenor of his
                argument suggested to the jurors that they might be in a position someday
                where they would have to explain their decision to the public and would
                likely be criticized or subjected to ridicule because they imposed death in a
                case that did not involve a terrorist attack, a mass shooting, or the sexual
                abuse and death of a child. We conclude that counsel's argument was
                inflammatory and therefore improper. While misconduct occurred, Keck's
                substantial rights were not affected considering the overwhelming
                evidence supporting the death sentence.
                            Bullet argument
                            Keck takes issue with the prosecutor's argument that Reyes           •




                was "forced to deliver the very bullet that killed her baby" on the grounds
                that no evidence established which bullet killed the fetus and the
                comment was designed to inflame the jury. The evidence shows that
                Reyes was shot eight times, including her abdomen, and the baby died as
                a result of "multiple maternal gunshot wounds." Several days after the
                shooting, when Reyes had regained sufficient strength, she delivered the
                baby. One bullet passed during delivery. While the evidence shows that a
                bullet fell out of her body during delivery of the fetus, the prosecutor's use
                of the word "delivered" left the jurors with a vividly disturbing image that

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                 served no other purpose than to inflame the jury's passions and sympathy
                 in an already emotionally charged case. This argument was improper.
                 Nevertheless, the error did not affect Keck's substantial rights considering
                 the nature and circumstances of Lestelle's murder and the compelling
                 aggravating circumstances found.
                 Public trial right
                             Keck contends that the district court violated his Sixth
                 Amendment right to a public trial by removing a spectator from the
                 courtroom during the penalty hearing and refusing to record bench
                 conferences. Because Keck expressly acquiesced in the district court's
                 removal of the spectator, he cannot now complain that error occurred.    See
                 Levine v. United States, 362 U.S. 610, 617-20 (1960); Commonwealth v.
                 Ray, 4 N.E.3d 221, 228 (Mass. 2014). As to the unrecorded bench
                 conferences, we conclude that bench conferences do not implicate the
                 constitutional right to a public trial.    See Richmond Newspaper, Inc. v.
                 Virginia, 448 U.S. 555, 598 n.23 (1980) (Brennen, J., concurring)
                 (observing that "when engaging in interchanges at the bench, the trial
                 judge is not required to allow public or press intrusion upon the huddle");
                 Morris Publishing Group, LLC v. State, 136 So. 3d 770, 782-83 (Fla. Dist.
                 Ct. App. 2014) (observing that "the public (and by extension, the press)
                 generally have no right of access to sidebars or bench conferences, or to
                 certain conferences conducted in judicial chambers"). It therefore follows
                 that the absence of a recording of bench conferences cannot violate the
                 Sixth Amendment right to a public trial.
                 Mitigation instruction
                             Keck argues that the district court's jury instruction defining
                 mitigating circumstances was erroneous because• it unconstitutionally

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                      narrowed the type of mitigation evidence that the jury could consider,
                      leading the jury to believe that it could not consider aspects of his
                      character or record as mitigating circumstances. Because he did not object
                      to the instruction, we review for plain error affecting his substantial
                      rights.   Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). In
                      Watson v. State, we considered an identical instruction to the one given
                      here and concluded that there was no reasonable likelihood that the jury
                      misunderstood the instruction to preclude it from considering any aspect
                      of the defendant's character or record as a mitigating circumstance
                      regardless of whether it reflected on his moral culpability. 130 Nev. ,
                         , 335 P.3d 157, 171-74 (2014). Here, Keck spent considerable time
                      presenting mitigation evidence that was unrelated to the circumstances of
                      the offense, including aspects of his childhood, his artistic talent, positive
                      facets of his personality, and his mental health problems. The jury was
                      given a verdict form listing four specific proposed mitigating
                      circumstances plus "any other mitigating circumstance." Most of the
                      mitigating circumstances were unrelated to the circumstances of the
                      offense. Under the circumstances here, we are not convinced that the
                      jury's rejection of some of the mitigating circumstances shows that the
                      jury believed that it was precluded from considering his background,
                      character, and other circumstances unrelated to the offense. We therefore
                      conclude that there is no reasonable likelihood that the jurors
                      misunderstood the instruction as precluding them from considering any
                      aspect of Keck's character or record as a mitigating circumstance.
                      Mandatory appellate review of the death sentence
                                  NRS 177.055(2) requires that this court review every death
                      sentence and consider whether (1) sufficient evidence supports the

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                aggravating circumstances found, (2) the verdict was rendered under the
                influence of passion, prejudice or any other arbitrary factor, and (3) death
                sentence is excessive.
                            First, the jury found four aggravating circumstances—(1)
                Keck had a prior violent felony conviction based on his attempted murder
                of Reyes with the use of a deadly weapon, (2) he had a prior violent felony
                conviction based on his assault of Staley with the use of a deadly weapon,
                (3) he murdered Lestelle during the perpetration of an attempted burglary
                while in possession of a deadly weapon, and (4) he knowingly created a
                great risk of death to more than one person during the commission of the
                murder. The aggravating circumstances stem from the circumstances
                surrounding the murder and were proved beyond a reasonable doubt by
                evidence introduced during the guilt phase of trial.
                            Second, this was undoubtedly an emotional case that left the
                jurors with unforgettable images, including the shooting of a woman that
                resulted in the death of her unborn child. The prosecutor's impassioned
                account of Trenton's hypothetical wedding, highlighting the absence of
                Lestelle and Trenton's siblings at that event had the potential to inflame
                the jurors in an already emotionally-charged case. Nevertheless, we
                conclude that the prosecutor's misconduct did not improperly influence the
                jury where the record suggests a reflective jury. At least one juror found
                that the murder was mitigated by Keck's mental health issues, which
                played a significant role in his mitigation case. While the jury rejected the
                remaining three specific mitigating circumstances proffered, two of those
                mitigating circumstances—he committed the murder while under the
                influence of extreme mental or emotional distress and his father's stroke
                and subsequent illness—overlap with the mitigating circumstance found

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                     because the evidence supporting those two mitigating circumstances
                     concerned mental problems he experienced during childhood and at the
                     time of the murder. The final mitigating circumstance based on his
                     service in the Navy was undermined by evidence showing that he feigned
                     mental illness to secure his separation from the service. Balancing the
                     effect of the wedding argument against indications of a contemplative jury
                     and the aggravating and mitigating evidence presented, we conclude that
                     the death sentence was not imposed under the influence of passion,
                     prejudice, or any other arbitrary factor.
                                 Third, when considering whether the death sentence is
                     excessive, we ask whether the "crime and the defendant before [the court]
                     on appeal [are] of the class or kind that warrants the imposition of death?"
                     Dennis v. State, 116 Nev. 1075, 1085, 13 P.3d 434, 440 (2000). The
                     evidence shows that Keck, enraged by Reyes' pregnancy with another
                     man's child, approached Reyes and Lestelle's apartment armed with a
                     chainsaw and an assault rifle. He threatened an unarmed security guard
                     at the apartment complex by pointing an assault rifle at the guard's head.
                     Keck then chain sawed his way into Reyes and Lestelle's apartment and
                     fired multiple rounds from his assault rifle. Lestelle died, and Reyes
                     suffered eight gunshot wounds, resulting in significant injuries to her and
                     the death of her unborn child. While Keck presented credible mitigation
                     evidence, on balance with the calculated and vicious nature of the murder
                     and circumstances of the crimes, the record supports a conclusion that the
                     crime and Keck are of the class and kind that warrant the imposition of
                     the death penalty. Accordingly, the death sentence is not excessive.




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                                Having considered Keck's arguments and concluded that no
                relief is warranted, we
                                ORDER the judgment of conviction AFFIRMED. 6



                                              it-Lau ha-Wh           , C.J.
                                          Hardesty


                                                                            1 44          J.
                Parraguirre                                Douoat3



                Saitta                                     GibbonS


                                                                       J.
                                          Pickering


                cc: Hon. Douglas W. Herndon, District Judge
                     Clark County Public Defender
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk


                         6 We
                            reject Keck's claim that his death sentence is unconstitutional,
                as we have repeatedly upheld the constitutionality of the death penalty.
                See, e.g., Nunnery v. State, 127 Nev. „ 263 P.3d 235, 257 (2011);
                Leonard v. State, 117 Nev. 52, 83, 17 P.3d 397, 415-16 (2001); Colwell v.
                State, 112 Nev. 807, 814-15, 919 P.2d 403, 408 (1996). We also reject his
                claim that cumulative error warrants reversal of the judgment of
                conviction. See generally Mulder u. State, 116 Nev. 1, 17, 992 P.2d 845,
                854-55 (2000) (explaining factors in cumulative-error analysis).



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                 CHERRY, J., dissenting:
                               I dissent and would remand this matter to the district court
                 for a new penalty hearing based on the cumulative effect of two errors.
                 First, the prosecutor's rebuttal arguments about young Trenton's future
                 wedding and Reyes' delivery of the bullet that killed her unborn child were
                 overtly designed to inflame the jurors' emotions and distract them from
                 basing their sentencing decision on the evidence and the law. I agree with
                 the majority that defense counsel engaged in improper argument as well.
                 But such obvious efforts by the prosecution to escalate the emotions of the
                 jury are inexcusable, particularly in a case where, as here, the facts and
                 circumstances of the offenses themselves undoubtedly elevated the jurors'
                 sympathy and emotions. See Tucker v. Zant, 724 F.2d 882, 888 (11th Cir.
                 1984) (explaining that the "Constitution will not permit arguments on
                 issues extrinsic to the crime or the criminal aimed at inflaming the jury's
                 passions, playing on its fears, or otherwise goading it into an emotional
                 state more receptive to a call for imposition of death and `invit[ing] the
                 jury to decide the life-death verdict in a frenzied and emotional
                 atmosphere" (quoting Brooks v. Francis, 716 F.2d 780, 789 (11th Cir.
                 1983))). Second, the jury received the same erroneous instruction at issue
                 in our decision in Watson v. State, 130 Nev. 335 P.3d 157 (2014). The
                 concerns that I expressed about this instruction in my dissent in Watson
                 are present here—the instruction likely confused the jury and improperly
                 limited its consideration of mitigating evidence to those matters related to
                 the offense. There is no room for confusion where jurors must determine
                 whether a death sentence is appropriate. Justice requires that jurors
                 receive clear instructions to guide their discretion in imposing
                 punishment.

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                               While I recognize that the facts and circumstances of the
                   offenses in this case are disturbing and that Keck did not object to either
                   error, the cumulative effect of the prosecutor's over-the-top emotionally
                   charged arguments coupled with an erroneous mitigation instruction that
                   likely confused the jury in exercising its sentencing discretion cannot be
                   underestimated. As such, I conclude that this case demands a new
                   penalty hearing.




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