concurring:
I concur in the majority’s affirming the death penalty, but I disagree with its “ reweigh [ing] the remaining aggravating circumstances against the mitigating circumstances.” See Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993) (Springer, J., concurring in part and dissenting in part). I concur because I conclude that, as a matter of law, mitigating circumstances cannot outweigh the aggravating circumstances in this case.
Rose, J.,concurring:
The jury was instructed that it could find that the murder was committed upon one or more persons at random and without apparent motive “if the robbery which preceded the murder could have been completed without killing the victim.” This instruction is based upon our holding in Bennett v. State, 106 Nev. 135, 143, 787 P.2d 797, 802 (1990). However, as I expressed in my dissent in Nika v. State, 113 Nev. 1424, 951 P.2d 1047 (1997), this interpretation of the phrase “random and motiveless” expansively broadens this aggravator when the goal of establishing aggravators is to narrow the scope of those who are eligible for the death penalty. This expansive interpretation is not a logical extension of this aggravator and it has become a catchall for prosecutors in death penalty cases.
In cases where it is not reasonably clear that the “random and motiveless” aggravator could apply, the definition of the three operative words (i.e. apparent, random, motive) should be given as I explained in my dissent in Nika. The facts of this case are anything but what an average person would think was a random and motiveless killing; therefore, it was essential that a definition be given for these terms used to assist the factfinder.
The facts of the case also establish that the “random and motiveless” aggravator was not applicable. The testimony the prosecution presented indicated that Leslie waited outside of the 7-Eleven prior to robbing the store, apparently casing the store to *25see if he could rob it, and only killing Prewitt after entering the store and demanding money from him. Leslie killed Prewitt because Prewitt would not give him the money immediately and, therefore, “the killing was directed at a specific individual.” Geary v. State, 112 Nev. 1434, 1446-47, 930 P.2d 719, 727 (1996). Only our tortured, expansive interpretation of this “random and motiveless” aggravator in Bennett would permit a fact-finder to reach the conclusion that this aggravator was proven beyond a reasonable doubt.
However, there are two aggravators that the jury found which are supported by overwhelming evidence, that Leslie committed the murder while he was engaged in the commission of both a burglary and robbery. These two aggravators are sufficient to support the jury’s death penalty verdict. Therefore, I join with the majority in affirming both the first degree murder conviction and the death penalty imposed.