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Collman v. State8/23/2000
behalf.
On Halloween 1995, Stach, Kim Colon, Shelley Muir, and their children went trick-or-treating. Damian was costumed as a football player, and Muir commented on Damian's authentic black-eye makeup. Stach allegedly replied in a serious tone, "What makeup? The little bastard did something wrong today, and I had to reprimand him." Further, after the children got tired of walking, both Muir and Kim Colon picked up their children and carried them home, while Stach made Damian walk the whole way, calling him lazy when he would fall down.
Sometime after Halloween 1995, when Kim Colon was at Stach's residence, Damian turned on the propane gas tank for the stove. Stach, who was about to light a cigarette, saw what Damian did and punished him by hitting his naked buttocks with a spatula, causing a bruise. Stach testified that she punished him severely only because his action caused her great fear; if she had lit her cigarette, the house could have blown up from the propane.
Shortly after the spatula incident, Stach and Damian visited the Colons' house, when their son, Christopher, and Damian started to turn on the propane gas tank on the stove. Kim Colon testified that Stach punished Damian by hitting his hands with a wooden spoon fifteen to twenty times, and Kim Colon did not hit Christopher. Stach testified that Kim Colon punished Christopher by hitting his hands a couple of times with a wooden spoon, and therefore, Stach did the same to Damian because she believed that the punishments should be equal.
In December 1995, Damian was standing near Stach, who was smoking a cigarette. Stach bent over to pick up a puppy and accidentally burned Damian in the forehead with the cigarette. Stach would also trip Damian with a child's hockey stick as he walked by her. She testified that this was done playfully and not intended to hurt Damian.
In support of his third theory, that Damian died from choking on bubble gum, Collman testified that Damian had eaten a whole pack of gum the morning of his death. At the hospital, Collman had suggested to the medical personnel that Damian may have choked on the gum. Further, members of the medical staff testified on cross-examination that they had difficulty putting an endotracheal tube down Damian's throat, indicating a blockage. This evidence was impeached by testimony that the blockage was mucous, which very commonly forms in the throat of abused children due to crying. Additionally, Dr. Clark testified that during the autopsy, she found no gum in Damian's throat. She further stated that had the gum lodged in Damian's throat at 7 a.m., when he ate the gum, he would have choked right away and not five and a half hours later.
Collman's conviction and sentence
On July 9, 1997, the jury returned a guilty verdict of first-degree murder against Collman. At the conclusion of the penalty phase, the jury found two aggravating factors: torture and victim under fourteen years old. The jury also 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.
On September 8, 1997, the district court sentenced Collman to death and sentenced Stach to a term of eight to twenty years in prison. Collman's judgment of conviction and notice of appeal were filed that same day.
DISCUSSION
I. Denial of motions to excuse two potential jurors for cause
Collman contends that the district court erred by fa
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