New penalty hearing ordered in death case

The Nevada Supreme Court on Thursday vacated the death penalty for Paul Lewis Browning, ruling that without the "depravity of mind" aggravating factor, a jury might have given him a lighter sentence.

Browning was convicted of robbing and stabbing to death Hugo Elsen at his Las Vegas jewelry store in 1985. He raised numerous issues in his appeal, but the Supreme Court said even though there were some errors, there is no reasonable probability Browning would have won an acquittal.

"The evidence of Browning's guilt remains overwhelming."

That evidence included his fingerprints at the scene, identification by three witnesses and his admissions of guilt to two friends, as well as the stolen jewelry found in his hotel room.

The Nevada court recently ruled that the depravity of mind argument provided inadequate guidance to a jury. In Browning's case, the court said it probably prejudiced Browning's chances of avoiding execution because the trial court failed to provide jurors an explanation of how to apply it.

"Absent a proper limiting instruction, 'depravity of mind' fails to provide the required constitutional guidance to jurors," the opinion states.

Justices Miriam Shearing, Bob Rose and Bill Maupin wrote that the argument is especially important in Browning's case because the prosecutor relied heavily on the "depravity of mind" aggravator in his closing arguments. He even quoted from its statutory language describing Browning's murder of a Las Vegas jewelry store owner as "vile, horrible and inhuman."

"He opened his argument by telling the jury that the human capacity 'for evil and depraved behavior' made the death penalty necessary in this case," the opinion states.

The justices agreed there is a reasonable probability jurors would have come to a different conclusion had Browning's lawyer appealed, challenging the unconstitutionality of the depravity instruction.

Therefore, they vacated the death sentence and ordered the case back to Clark County District Court for a new penalty hearing.

Contact Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.