with whom Leavitt, J., agrees, concurring in part and dissenting in part:
I would affirm the denial of Evans’s petition for post-conviction relief in its entirety.
Claims of prosecutorial misconduct
A jury may consider three categories of evidence in determining whether the death penalty is warranted: “evidence relating to aggravating circumstances, mitigating circumstances, and ‘any other matter which the court deems relevant to sentence.1 The jury may not consider the third or “other” category of evidence in support of the imposition of the death penalty until it has determined “death eligibility,” i.e., after it has, at a minimum, unanimously found the existence of at least one statutorily enumerated *649“aggravator.” As the majority notes, the “other evidence” may always be considered in a determination of the three non-death penalty sentencing options. The other available penalties include life imprisonment without the possibility of parole, life imprisonment with the possibility of parole, and a fixed term of fifty years imprisonment with parole eligibility after twenty years.
The defense attempted to address the “other evidence” against Evans, including evidence that he had been involved in cocaine trafficking and had been convicted of leaving the scene of a car accident:
It [the “other” evidence] is evidence of other bad conduct on Vernell’s part, and it cannot be considered by you at all, discussed, or even thought about at all until you decide whether the State has proven beyond a reasonable doubt that an aggravating circumstance exists as to each of the persons — as to each of the victims. You can’t even talk about the fact that he pled guilty to this. But if you find that there’s an aggravating circumstance, then and only then can this conduct be any influence on your sentencing determination.
In apparent response, the prosecutor made the following statement during his penalty phase closing argument:
[Defense counsel] argues that you can’t consider or discuss that evidence unless you find that aggravating circumstances had been proven beyond a reasonable doubt. And it may be a semantical thing again, but regardless of the punishment you select, it doesn’t seem inappropriate to have all the information you can get about the character of a defendant. I just take issue with the remark that you have to wait until a certain point in the deliberation to consider that someone has two prior felony convictions, and that he made his living by selling poison. It seems to me regardless of the punishment that ought to be a factor, as reasonable men and women, that you can consider.
(Emphasis added.) The majority concludes that this argument erroneously distorts the nature of a death penalty jury’s obligations regarding the consideration of “other evidence.” According to the State, its argument was not made with regard to the jury’s obligation to resolve the existence of statutory aggravating circumstances, i.e., death eligibility, before moving on to other evidence supporting the death penalty. Rather, the State contends the argument was designed to correct an implication in the above-quoted argument by the defense that the jury could never consider such evidence, even on the question of the other available sentences, unless the jury unanimously found the existence of an aggravating circumstance.
*650It is evident that the defense argument was intended to re-assert the principle that the jury could not consider this other information in support of the death penalty until death eligibility had been determined. However, the defense argument did improperly imply that matters beyond the statutory aggravators could not be relied upon by the jury in determining the other potential sentencing alternatives in the absence of an aggravating circumstance. Thus, it was appropriate for the prosecution to correct the misstatement. This notwithstanding, the argument of which Evans complains does, by its terms, seemingly relate to the obligation of the jury to first determine “death eligibility” before considering other matters with regard to that particular sentence.
It is evident that the above-quoted arguments made on behalf of both sides contained erroneous general statements about mutually exclusive concepts in the sentencing process. However, prior to the prosecutor’s statement, the trial judge, the prosecutor himself and defense counsel correctly and repeatedly admonished the jury as to its role and the structure for its determination of penalty.
First, the prospective jurors were oriented during voir dire examination to the rules governing its deliberations over the death penalty. Second, the jury was correctly instructed on the issue:
The jury may impose a sentence of death only if it finds at least one aggravating circumstance has been established beyond a reasonable doubt and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.
You must first determine unanimously whether or not the state has proved beyond a reasonable doubt that an aggravating circumstance or circumstances exist in this case. . . .
If you find that an aggravating circumstance or circumstances exist, you must then weigh any mitigating factor or factors, which any juror believes has been shown against the aggravating circumstance or circumstances. If you find that the mitigating circumstances outweigh the aggravating circumstances, you are not permitted to consider imposing the death penalty and you must then determine whether the defendant should be sentenced to life imprisonment ....
If you find that the mitigating factors do not outweigh the aggravating circumstances, then and only then may you consider imposing the death penalty.
Third, defense counsel, during her penalty phase final argument, stressed and read the above-quoted language. Fourth, prior to the arguably improper argument, counsel for the State also quoted and stressed the same instruction.
The prosecutor’s statement was made in passing, related to a *651separate defense argument regarding other penalties, and did not unequivocally address the requirements for imposition of the death penalty. Thus, in my view, the statement did not change the outcome. It should be remembered that, in addition to a very carefully conducted trial, Evans confessed to the murder and his motivations, and a young but competent eyewitness described the literal “execution” of the victims. Thus, I would not remand this matter for a new penalty hearing.2
Hollaway v. State, 116 Nev. 732, 745, 6 P.3d 987, 996 (2000) (quoting NRS 175.552(3)).
I agree that the majority’s suggested instruction on the use of “other evidence” should serve as a guide in future death penalty litigation.