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Collman v. State8/23/2000
there is a killing by torture, the decisions in Crawford and Turville err in abandoning the established analysis of first-degree murder by enumerated means and concluding that, given torture, malice must be present as a matter of law. Such an approach introduces laxness and inconsistency into the application of a statute which defines first-degree murder by enumerated means in a uniform, reliable way. This lax approach is not sound because it is conceivable that torture, like other enumerated means, can be done without legal malice.
Actually, although Turville has not been expressly overruled on this point, the California Supreme Court has since reiterated that to prove murder by torture, " t must be established that the defendant intended to 'cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity.'" Mattison, 481 P.2d at 197 (quoting People v. Tubby, 207 P.2d 51, 54 (Cal. 1949)). The required "untoward propensity" goes to the element of malice. The California Supreme Court has also explained that murder by torture is first-degree murder not because of the amount of pain inflicted but because of "the state of mind of the torturer--the cold-blooded intent to inflict pain for personal gain or satisfaction." People v. Steger, 546 P.2d 665, 669 (Cal. 1976). Therefore, the court has held that first-degree murder by torture is "murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain." Id.; see also People v. Wiley, 554 P.2d 881, 887 (Cal. 1976). Further, in cases of murder by torture in California, the current standard jury instructions require the jury to find both malice aforethought and that " he perpetrator committed the murder with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose." California Jury Instructions, Criminal 8.24 and accompanying use note (6th ed. 1996). Thus, despite the unqualified statement made in Turville, malicious intent must be independently proved to establish murder by torture in California.
As already discussed, child abuse was added only recently to the means enumerated in NRS 200.030(1)(a) and is somewhat anomalous, but the State has not argued nor would we agree that this is a basis to treat it differently from the other enumerated means. To maintain coherency and rigor in the application of the statute, first-degree murder by child abuse can and must be proven in the same manner as the other three enumerated means. To reiterate, poison, lying in wait, and torture are not separate statutory offenses, but all are consistent with deliberate, premeditated action. Child abuse, on the other hand, can denote a crime, but does not appear to do so in NRS 200.030(1)(a) because the statute provides its own definition of child abuse in subsection (6)(a) rather than referencing the independent offenses involving abuse or neglect of children proscribed in NRS 200.508. Child abuse more clearly diverges from the other three enumerated means in that it does not strongly correlate with deliberate, premeditated action since it can be and often is committed in a rash, impulsive manner. Therefore, it is critical that jurors expressly find malice aforethought before convicting a child abuser of first-degree murder under subsection (1)(a). Otherwise, a single rash, impulsive act by an otherwise decent parent leading to a child's death--an act which was abusive to the child but lacked legal malice--would constitute first-degree murder.
Thus, unlike felony murder pursuant to NRS 200.030(1)
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