concurring:
I concur with the majority in its reasoning and conclusions in affirming the results of the guilt and penalty phases of this case. I am concurring to address the concern Justice Young has expressed in his dissent regarding NRS 175.556.
The jury convicted Beets of first degree murder, but was unable to agree upon the punishment to be assessed in the penalty phase, and the jury was declared deadlocked. At the penalty phase, the jury was instructed that three circumstances could be found to be aggravating to the first degree murder conviction. I agree with the majority’s opinion that the only aggravating circumstance that was improperly presented to the jury was the instruction stating that depravity of mind could be an aggravating circumstance.
We have no idea why the jury deadlocked in this case and was unable unanimously to assess a penalty against Beets. The jury may well have rejected the improperly given aggravating circumstance of depravity of mind, or it may have deadlocked on that precise issue. At most, the improperly given aggravating circumstance could have prejudiced the defendant by contributing to an inconclusive result, thus requiring that the sentence be imposed by a three-judge panel.
At the subsequent penalty hearing before the three-judge panel, the findings were made of three aggravating circumstances. Only the aggravation for depravity of mind was improperly found. Given the gruesome facts of this case and that we will affirm a death penalty assessment even if one aggravating circumstance is properly found, see Ybarra v. State, 100 Nev. 167, 679 P.2d 797 *967(1984), I have no problem in finding that a factual basis exists for the assessment of the death penalty.
The focus of our attention at a later time should be on NRS 175.556. This statute provides that a three-judge panel shall sentence a defendant convicted of first degree murder when the jury is unable to reach a unanimous verdict. As stated in his dissent, my colleague Justice Young has a legitimate concern about the effect of this statute. If defendants are consistently more likely to get the death penalty from a three-judge panel than a jury, then it may well be that Nevada’s sentencing procedure creates a substantial risk that the ultimate punishment will be inflicted in an arbitrary or capricious manner. This result would be a violation of the Nevada and United States Constitutions.
However, evidence on this issue was not presented by the parties in the proceedings below, nor has this issue been raised on appeal. Before deciding such an important issue, we should have an actual case and controversy from which to make a decision, along with the arguments of the prosecution and the defense. While the statistics cited by Justice Young support his conclusion, I would defer making this decision until the issue is formally presented to this court.
For the reasons stated, I concur with the majority’s opinion and would affirm the death sentence assessed against Beets.