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Collman v. State8/23/2000
not excessive, considering both Collman and his crime.
At the penalty phase, the State reasserted the evidence presented at the guilt phase and introduced other evidence of Collman's violent temper and previous instances of abuse. The jury found the existence of two aggravating circumstances, torture and victim under fourteen years old. See NRS 200.033(8), (10). The jury found six mitigating circumstances: no significant criminal history, job history, cooperation with law enforcement, lighter sentence for Stach, lack of intent to kill, and no flight of any kind. After determining that the mitigating circumstances did not outweigh the aggravating circumstances, the jury sentenced Collman to death.
We conclude that the evidence supported both the aggravator of torture, as discussed earlier in this opinion, and the aggravator of victim under fourteen. There is no indication that the death sentence was imposed under the influence of passion, prejudice, or any arbitrary factor. Nor is the sentence excessive, considering Collman and his crime. In addition to the details of Collman's mistreatment and murder of Damian, the jury heard evidence that Collman had a long history of severely mistreating women and children and derived pleasure from their fear and pain. Angela Collman, Collman's former wife, described in detail how Collman abused, controlled, raped, and threatened her throughout their marriage. She further testified that while she was pregnant with their daughter, Kendra, Collman put a gun to her stomach because she refused to have an abortion. Angela testified that Collman was rough with Kendra and once dropped her into her bassinet from a height of two feet. Angela also related an incident where she was driving sixty to seventy miles per hour and Collman held Kendra out the car window, threatening to drop her if Angela stopped the car or slowed down. Naomi Wade, Collman's former girlfriend, also testified to the abuse she endured from Collman. Collman liked to see her cry and would choke, hit, and punch her, slam her against the wall, and spit on her.
Finally, although a lack of intent to kill was found as one mitigator, this does not prohibit imposition of the death penalty. Collman did not raise this issue on appeal, but it is clear that the death penalty is not prohibited here even if Collman did not specifically intend to kill Damian. The United States Supreme Court has held that reckless disregard for human life may be sufficient to warrant a death sentence even when a defendant has no specific intent to kill. See generally Tison v. Arizona, 481 U.S. 137, 146-58 (1987).
CONCLUSION
Although instruction number 11 erroneously instructed the jury on the requirement of malice aforethought, we conclude that the error was harmless. We therefore affirm Collman's conviction and death sentence.
YOUNG, SHEARING, LEAVITT and BECKER, JJ., concur.
MAUPIN, J., concurring:
I agree that defects in jury instructions defining the elements of a charged crime may be the subject of a harmless error analysis under Neder. However, our embrace of the United States Supreme Court decision in Neder does not involve a mere clarification of our prior decision in Thompson v. State, 108 Nev. 749, 838 P.2d 2d 452 (1992). Rather, our decision today comprehensively expands the basic proposition of law articulated in that opinion.
The majority is careful to observe that it is "critical" for juries to be instructed on the need to prove malice, express or implied, before convicting a defendant of murder under NRS 200.030(a)(1). See Graham v. State, 116 Nev. ___, ___ P.2d ___ (Adv. Op. No. 3, January 26, 2000). This underscores
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