dissenting:
I believe that this court has a proper and established policy of addressing facial errors of constitutional magnitude, in death cases. See, e.g., Pertgen v. State, 110 Nev. 554, 560, 875 P.2d 361, 364 (1994) (“the power of this court to address plain error or issues of constitutional dimension sua sponte is well established”); Emmons v. State, 107 Nev. 53, 60-61, 807 P.2d 718, 723 (1991) (“[b]ecause this case involves the ultimate punishment and because appellant’s claims of ineffective assistance of counsel are directly related to the merits of his claims, we will consider appellant’s claims on the merits in order to determine whether appellant received ineffective assistance of counsel”); Flanagan v. State, 104 Nev. 105, 108, 754 P.2d 836, 837 (1988) (“where a life is at stake, we will consider the allegations of misconduct as if there had been compliance with the contemporaneous objection rule”). I think it should follow such a policy in this case.
The court has written a nine-page opinion trying to explain why Valerio’s claims are not entitled to judicial review. It would have been much wiser, in my opinion, for this court to have insisted upon a review, or even “re-review,” by either the trial court or this appellate court, of all of the issues presently raised by Valerio. In this way we would have been much closer to being assured that all legal and constitutional issues relating to this case had been finally disposed of at the state level. For this reason, I dissent.