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Collman v. State8/23/2000
the care that should be exercised in the application of Neder to these matters. Here, the majority's conclusion that the defects in the instruction constitute harmless error did not subject Collman to criminal liability for murder based upon a "single rash, impulsive act by an otherwise decent parent." Overwhelming evidence demonstrated that Collman serially and maliciously abused a small and defenseless toddler. On these facts, the jury could not have been misled by the instruction regarding the element of malice.
I would also separately comment on the marginal nature of Collman's alternative defense, to wit: that Damian's mother was the perpetrator. First, the need to take the child to the hospital occurred while Collman was alone with the child. Second, substantial circumstantial evidence confirms that the final physical insult to this child did not occur at any other time or by means other than by child abuse. Thus, the trial court's refusal to admit extraneous evidence regarding the mother's conduct before and after Damian Stach's demise does not dictate reversal of Collman's conviction.
While resort to a harmless error analysis in these cases should be the exception rather than the rule, I agree with the majority that the error in this case was harmless beyond a reasonable doubt.
ROSE, C.J., dissenting:
I concur in the majority's cogent analysis that it was error to give instruction #11, which states that malice aforethought, an essential element of the crime of murder, is conclusively established when death by child abuse has been proven. However, I disagree with the majority that we should discard our long-established precedent that prohibits harmless error analysis from being used to excuse jury instructions that fail to include all the essential elements of the crime. Instead, I would prefer to stay with the time-honored rule that such errors are so fundamental to due process and fairness that they cannot be considered harmless. For this reason and the fact that I conclude that admissible evidence was improperly excluded, I would reverse this case and remand for a new trial.
This court has held that there are a few types of error that are so fundamental to our concept of justice that harmless error analysis is inapplicable. See Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992). A jury instruction that incorrectly states the elements of the charged crime is one of them.
In Thompson, we held that where the jury instructions fail to correctly state all of the elements of the crime, we will permit harmless error analysis only in certain limited circumstances. These circumstances are: (1) where the defendant is acquitted of the offense on which the jury was improperly instructed; (2) where the defendant admitted the element on which the jury was improperly instructed; and (3) where no rational jury, having already found the predicate facts beyond a reasonable doubt, could find those facts without also finding the ultimate presumed fact. See id. at 756, 838 P.2d at 456-57.
As none of these circumstances is present here, the inclusion of a jury instruction that omits an essential element of the crime is not harmless, and thus warrants reversal. The majority, however, alters the harmless error jurisprudence of this state by relying on Neder v. United States, 119 S. Ct. 1827 (1999), a recent United States Supreme Court decision in a federal property crime case.
In Neder, the United States Supreme Court held that a trial court's failure to include all the essential elements of the crime in the jury instruction is subject to harmless error analysis. This holding, however, is in no way binding upon us, and the
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