#### KENNETH JAMES MELLER, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 9111

July 5, 1978

581 P.2d 3

*Horace R. Goff,*Nevada State Public Defender, and *J. Thomas Susich,*Deputy Public Defender, Carson City, for Appellant.

*Robert List,*Attorney General, Carson City; *Steve McMorris,*District Attorney, Douglas County, for Respondent.

OPINION

*Per Curiam:*

Appellant was convicted, by jury verdict, of robbery of the *409Nevada National Bank at Zephyr Cove, Nevada (NRS 200.380) and murder of a Nevada Highway Patrolman on October 14, 1975 (NRS 200.010; NRS 200.030). He was subsequently sentenced to death pursuant to NRS 200.030(l)(a) and NRS 200.030(5), which provide for a mandatory death penalty for the murder of a peace officer acting in his official capacity.1 Appellant contends NRS 200.030(5), as applied to NRS 200.030(l)(a), is unconstitutional. We agree.

The U.S. Supreme Court recently annulled a similar statutory provision, stating: “[I]t is essential that the capital-sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense. [Footnote omitted.] Because the . . . statute does not allow for consideration of particularized mitigating factors, it is unconstitutional.” Roberts v. Louisiana, 431 U.S. 633, 637 (1977). *Cf.*Smith v. State, 93 Nev. 82, 560 P.2d 158 (1977).

In our view, *Roberts*is controlling and dispositive of the present appeal. As in *Roberts,*Meller was convicted of murdering a police officer who, at the time of his death, was engaged in the performance of his lawful duties. Similarly, Meller was tried, convicted, and sentenced under a death penalty statute which failed to provide for consideration of mitigating factors.2

Accordingly, pursuant to the mandate of *Roberts,*appellant’s sentence of death must be, and is hereby, vacated. The *410penalty imposed upon appellant is life imprisonment without possibility of parole.3*See*Smith v. State, supra.

Ancillary claims of error are without merit and, accordingly, the district court judgment is affirmed, as modified.4

1

 In 1975, and at all times relevant to these proceedings, NRS 200.030(l)(a) provided, in pertinent part:

> “Capital murder is murder which is perpetrated by:

> “(a) Killing a peace officer . . .:

> “(1) While such officer ... is acting in his official capacity . . .; and “(2) With knowledge that the victim is or was a peace officer. ...”

In 1975, and at all times relevant to these proceedings, NRS 200.030(5) provided:

> “Every person convicted of capital murder shall be punished by death.”

These sections of NRS 200.030 were amended by 1977 Nev. Stats, ch. 585.

2

*Compare*NRS 200.030(l)(a), *supra*note 1, *with*La.Rev. Stat. Ann. § 14:30, which, before amended, provided, in pertinent part:

> “First degree murder is the killing of a human being:

> “(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a . . . peace officer who was engaged in the performance of his lawful duties. . . .

> “Whoever commits the crime of first degree murder shall be punished by death.”

3

 We are cognizant of the sentencing procedures recently approved by the U.S. Supreme Court in Dobbert v. Florida, 432 U.S. 282 (1977). However, because the present case is factually distinguishable from *Dobbert,*we find those procedures inapposite. See State v. Rodgers, 242 S.E.2d 215 (S.C. 1978), where the South Carolina Supreme Court also declined to apply *Dobbert*to a factual situation similar to that involved here.

4

 The Governor, pursuant to Nev. Const, art. 6, § 4, designated the Honorable Llewellyn A. Young, Judge of the Sixth Judicial District, to sit in place of The Honorable Noel E. Manoukian, Justice, who voluntarily disqualified himself in this case.