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Collman v. State8/23/2000
dissent, written by Justice Anton Scalia, persuasively articulates why adopting this new rule is erroneous and invades the province of the jury.
In accord with the dissent in Neder, I believe that the right to be tried by a jury, a guarantee that is central to the Constitution, includes the right to have the jury determine the guilt or innocence of a defendant -- a determination that necessarily requires proof of all elements of a crime. Thus, "the right to render the verdict in criminal prosecutions belongs exclusively to the jury; reviewing it belongs to the appellate court." Neder v. United States, 119 S. Ct. 1827, 1848 (1999) (Scalia, J., dissenting).
The majority of this court, however, applies the harmless error analysis and asks whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty" absent the erroneous instruction. Thus, the majority essentially steps into the shoes of the jury and fills in "gaps" necessary to the verdict. While I believe that harmless error analysis may properly be used to review a verdict under the circumstances outlined in Thompson, such analysis only applies when the jury actually renders a verdict – that is, when the jury has considered all the elements of the crime and found the defendant guilty.
Although I disagree with the majority's general conclusion that harmless error review applies to "instructions which omit, misdescribe, or presume an element of an offense," I also have concerns with the majority's application of harmless error analysis to the facts of this case. The majority concludes that the use of the erroneous instruction, which omitted an essential element of the crime of murder, was harmless because: (1) the jury was given one proper instruction, jury instruction #10, that defined implied malice on which the jury could have relied; and (2) the jury's finding of torture in the penalty phase provided sufficient evidence to support a finding of implied malice in the guilt phase. I strongly disagree with these conclusions.
First, it is mere speculation to assume that the jury relied on instruction #10 because there is no evidence in the guilt phase so indicating. During the guilt phase, rather than convicting Collman of first-degree murder based on a finding of implied malice, the jury could have relied on the improper mandate set forth in instruction #11, and thus concluded that malice was established solely because the murder occurred "by means of child abuse." Because it is unclear, and particularly because it is not "clear beyond a reasonable doubt," that the jury made any finding in the guilt phase with respect to malice aforethought, I cannot say that this error was harmless.
Second, I disagree with the majority that we can bootstrap findings made in the penalty phase to cure errors made in the guilt phase. By statute, the guilt and penalty phases of a criminal trial are separate hearings in which different evidentiary rules apply. See NRS 175.552. Often, in the penalty phase, the jury hears evidence concerning a defendant that was inadmissible during the guilt phase -- evidence that the jury was forbidden from considering in determining the guilt or innocence of the accused. Therefore, because the rules of evidence, the ultimate purpose, and the overall tenor of these two proceedings are vastly different, I cannot conclude that the jury's finding of torture in the penalty hearing equates to a finding of implied malice in the guilt phase. Further, using penalty phase findings to cure errors in the guilt phase may result in harsher and unequal treatment for death penalty defendants who do not have the option to waive such a hearing. See NRS 175.552(2) ("In a
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