concurring:
I join the opinion but believe there is a shorter path to the same conclusion. Nothing prevented Harrison from seeking to bifurcate his capital-sentencing hearing so that the jury could render a verdict on his death eligibility, a request the trial judge may well have granted. See, e.g., Johnson v. State, 122 Nev. 1344, 148 P.3d 767, 770-71 (2006). Harrison also could have requested that the jury be instructed to return a special verdict on the specific question of his death eligibility. Had Harrison made a timely request for some such procedure, and had the trial judge denied it, this would be a much harder case. We’d then be forced to decide whether a capital defendant is constitutionally enti*490tied to insist that the jury render a separate verdict as to whether he is death eligible. The Nevada Supreme Court doesn’t seem to recognize such a right, see Summers v. State, 122 Nev. 1326, 148 P.3d 778, 783 (2006); Gallego v. State, 117 Nev. 348, 23 P.3d 227, 241 (2001), but it may be wrong on that score.
Harrison may have had a tactical reason for not asking for a separate death verdict. Perhaps he feared it would emphasize to jurors that he committed a capital offense. Or maybe he wanted to avoid drawing attention to the aggravating circumstance — that he carved a large swastika on the victim’s back. Cf., e.g., United States v. Aiello, 900 F.2d 528, 533-34 (2d Cir.1990). But if he had a constitutional right to this separate verdict, he had to assert it before the jury retired to deliberate. See United States v. Jones, 425 F.2d 1048, 1057 (9th Cir.1970); see also Fed. R. Crim.P. 30(d). His belated effort to extract information about the state of deliberations by polling the jury after it declared itself deadlocked was unavailing “[bjecause a jury speaks only through its verdict,” and its “inability to reach a verdict [as to punishment is] a nonevent.” Yeager v. United States, — U.S. —, 129 S.Ct. 2360, 2366-67, 174 L.Ed.2d 78 (2009). Having failed to squarely pose the question of death eligibility to the jury, Harrison cannot now complain that he didn’t get an answer.