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Collman v. State8/23/2000
." As explained above, if sufficiently reckless of human life, this state of mind constitutes implied malice. Third, the evidence established such recklessness here. Collman's ongoing and viciously abusive behavior toward Damian and the manner of Damian's death provided sufficient evidence to support a finding of both implied malice and torture.
We are convinced that the jury's unanimous finding that the killing of Damian involved torture established that the jury found that Collman killed the three-year-old victim with malice. Pursuant to the other proper instructions on malice that were provided to the jury, we are also convinced that the jury considered all the relevant and overwhelming evidence of malice presented at trial. We conclude beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of instruction number 11 and that therefore, the erroneous instruction concerning malice was harmless beyond a reasonable doubt.
XII. Evidence about the victim's mother in the penalty phase
At the penalty hearing, Collman moved to admit all the evidence the district court had excluded from the guilt phase regarding Stach: specifically, her alleged interest in the occult, her prior abortion, and her alleged lack of remorse over Damian's death. Collman intended to refute the state's torture allegation by establishing that Stach had been the one who tortured Damian the last few months of his life and it was "just fortuitous that [Collman] was the individual inflicted the final abuse." The court denied the motion because the evidence was dubious, tenuous, and irrelevant to the penalty phase.
Collman contends that the district court denied him his "unfettered" right to present mitigating evidence. NRS 175.552(3) provides in part: "In the [penalty] hearing, evidence may be presented concerning aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter which the court deems relevant to sentence . . . ." (Emphasis added.) The United States Supreme Court has also announced that the trier of fact in a penalty phase of a capital case must consider evidence about the defendant and his offense; the Court does not require considering evidence about a prosecution witness. See Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
No case law or statute requires admission of witness character evidence in a penalty hearing. The hearing in the instant matter was about Collman, Damian, and Collman's crime, not about Stach. " uestions concerning the admissibility of evidence during the penalty phase of a capital murder trial are generally left to the trial judge's discretion." Emil v. State, 105 Nev. 858, 864, 784 P.2d 956, 960 (1989). The district court here correctly concluded that the evidence was irrelevant to the penalty phase proceedings. That Stach allegedly had an interest in the occult, had an abortion, and allegedly lacked remorse remained irrelevant to the offense for which Collman was convicted. Accordingly, we conclude that the district court did not abuse its discretion by denying Collman's motion to admit this evidence.
XIII. Statutory review of the death sentence in this case
Collman contends that the death sentence is not appropriate in this case. He reiterates the mitigating circumstances found by the jurors and claims that the death penalty resulted from emotion and passion. Pursuant to NRS 177.055(2), we have reviewed Collman's death sentence and conclude that the evidence supports the aggravating circumstances, that the sentence was not imposed under the influence of passion, prejudice, or any arbitrary factor, and that the sentence is
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