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Collman v. State8/23/2000
annot reach this conclusion--"for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding--it should not find the error harmless." Id. at 19.
We are convinced beyond a reasonable doubt that the erroneous instruction here did not induce the jury to find Collman guilty of murder without a finding of malice. It is clear that the jury believed that Collman acted with malice and thus would have found him guilty of murder even absent the erroneous instruction.
First, the jury was given proper guidance by the other instructions it received. Instruction number 7 correctly informed the jury that murder is "the unlawful killing of a human being, with malice aforethought, whether express or implied."
Pursuant to NRS 200.020, instruction number 10 correctly defined express malice as a "deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof." Instruction number 10 also correctly stated that " alice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart."
In addition, instruction number 12 provided:
In order to prove the crime of First Degree Murder By Child Abuse, the State must prove each of the following elements beyond a reasonable doubt:
1. hat at the time and place indicated in the Information, the Defendant did willfully, feloniously and without authority of law
2. ill a human being
3. with malice aforethought
4. by means of child abuse.
Pursuant to these instructions, it is reasonable to expect that the jury considered all of the evidence of express and implied malice revealed by our review of the entire record. In our view, that evidence is "so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption." Yates, 500 U.S. at 405.
Moreover, although at least one juror found as a mitigating circumstance in the penalty phase that Collman lacked the intent to kill, the jury was properly informed that malice could be implied when no considerable provocation appeared or all the circumstances of the killing showed an abandoned and malignant heart. Thus, the jury did not need to find that Collman specifically intended to kill Damian in order to find implied malice.
Second, during the penalty phase of the trial, the jury unanimously found as an aggravating circumstance that the killing of Damian involved torture. The district court instructed the jury that:
In order to find the aggravating circumstance of torture, the State must prove each of the following elements beyond a reasonable doubt:
(1) The defendant committed the act or acts with the intent to inflict cruel pain and suffering upon a living human being for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.
(2) The defendant did inflict cruel physical pain and suffering upon a living human being no matter how long its duration.
Torture must be beyond the act of killing.
The record reveals that the jury's finding of torture was based upon the evidence adduced during the guilt phase of the trial, as no new evidence on this point was offered during the penalty phase. Thus, the guilt phase evidence proved to the jury beyond a reasonable doubt that Collman intentionally inflicted cruel pain and suffering on Damian "for the purpose of revenge, extortion, persuasion, or for any sadistic purpose
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