The majority of the Nevada Supreme Court voted this week to uphold the death sentence for Kelly Eugene Rhyne in the beating death of an Elko man.
But two members of the court, Justices Nancy Becker and Bob Rose, said death was excessive in Rhyne's case because the aggravating circumstances used to justify it don't hold up.
Rhyne, of Carlin, was convicted of murdering Donald Brown outside the Miner's Camp bar in October 1998. Brown was beaten and stomped to death.
Key testimony in the case was given by the other man originally charged in the killing, James Mendenhall. In trade for his testimony, he was allowed to plead guilty to second-degree murder.
All seven members of the high court agreed the district court was wrong to overrule Rhyne's lawyer and call a witness the lawyer believed would do more harm than good in Rhyne's case. They also agreed the trial judge should not have intervened on Rhyne's behalf during the penalty phase to block testimony by three doctors and his mother about his mental state.
Justices agreed it is the lawyer's right to decide how the defense should be conducted. They also agreed that, since it was Rhyne who wanted that damaging testimony brought in, and the testimony about his mental problems blocked, he can't later claim it was an error to do what he wanted.
But the majority of the court rejected most of Rhyne's complaints, including prosecutorial misconduct, and upheld both the conviction and the death sentence, ruling that he had been convicted of two prior violent felonies.