with whom Maupin and Douglas, JJ., agree, concurring:
For the reasons stated in my concurring and dissenting opinion in Summers v. State,11 believe that capital defendants have a Sixth Amendment right to confront the declarants of testimonial hearsay statements admitted during an unbifurcated capital penalty hearing. Where the hearing is bifurcated into death-eligibility and selection phases, as it was in Thomas’s case, I believe that the right to confrontation extends only to evidence admitted during the eligibility phase. Here, testimonial hearsay — Officer Bailey’s testimony about Hall’s statements and the transcript of that interrogation — was admitted during the eligibility phase, but Hall was unavailable to testify and Thomas had a prior opportunity to cross-examine him. I therefore concur in the majority’s conclusion that it was not error under the Confrontation Clause and Crawford v. Washington2 to admit this evidence.
122 Nev. 1326, 148 P.3d 778 (2006).
541 U.S. 36 (2004).