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Collman v. State8/23/2000
err in excluding that testimony.
VIII. Impeachment of a defense witness
Rick Colon testified for the defense that Stach proudly displayed bruises she allegedly inflicted on Damian. He testified that due to Stach's behavior, he was concerned for Damian's welfare. On cross-examination, the State asked whether he had called the authorities to report Stach as a child abuser. The defense objected, arguing that failure to call the authorities is not proper impeachment. The district court overruled the objection, permitting Rick Colon to answer. Rick Colon testified that he did not call the authorities to report Stach and that he also refused to speak with the police or prosecutors about this case because he preferred to "keep them in the dark."
Collman argues that the State improperly impeached Rick Colon. Collman cites only to two New York cases which hold that a prosecutor may not impeach an alibi witness based on the witness's failure to inform the police of the alibi and that no inference may be drawn from such failure. See People v. Allen, 425 N.Y.S.2d 144, 148 (N.Y. App. Div. 1980), overruled by People v. Knight, 570 N.Y.S.2d 617 (N.Y. App. Div. 1991); People v. Hamlin, 395 N.Y.S.2d 679, 681 (N.Y. App. Div. 1977). These cases are inapplicable in the present matter.
Impeachment consists of attacking a witness's credibility, which depends on that witness's willingness and ability to tell the truth. 1 John William Strong, McCormick on Evidence ยง 33 (4th ed. 1992). One may be impeached with respect to such matters as perception, memory, communication, sincerity, or bias. Id. Here, the State attempted to prove that Stach was not Damian's abuser. In asking whether Rick Colon called the authorities, the State impeached the sincerity of his alleged concern for Damian. Further, the fact that Rick Colon preferred not to talk to police or prosecutors suggested a bias for the defense. Accordingly, we conclude that the State properly impeached Rick Colon.
IX. Proposed jury instruction on child abuse causing substantial bodily harm, a felony
During the settling of the jury instructions, Collman requested an instruction on child abuse causing substantial bodily harm, a felony, but the district court refused to give the instruction. Collman contends that the court erred.
In Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235, 1239 (1989), this court held that the trial court must give a defendant's proffered jury instruction on a lesser related offense if three conditions are satisfied: "(1) the lesser offense is closely related to the offense charged; (2) defendant's theory of defense is consistent with a conviction for the related offense; and (3) evidence of the lesser offense exists." Here, child abuse causing substantial bodily harm is closely related to first-degree murder from child abuse and is supported by evidence presented by the State. We conclude, however, that the second condition is not satisfied.
In Moore v. State, 109 Nev. 445, 446-47, 851 P.2d 1062, 1063 (1993), the jury was instructed on a lesser related offense at the state's request and convicted the defendant of the lesser related offense. This court reversed the conviction because the lesser related offense was inconsistent with the defendant's theory of defense, a complete denial of culpability. This court concluded that the defendant must admit to some conduct which constitutes the lesser crime before the jury may be instructed on the lesser related offense. Id. at 447, 851 P.2d at 1065; see Johnson v. State, 111 Nev. 1210, 1213-14, 902 P.2d 48, 50 (1995).
Collman contends that admitting "to some conduct which constitutes the lesser crime" v
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