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Collman v. State8/23/2000
son's other crimes, wrongs, or acts, the district court must determine that the other act is relevant for an admissible purpose, that it was proven by clear and convincing evidence, and that the probative value of the act is not substantially outweighed by unfair prejudice. NRS 48.045(2); Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65. This court will not overturn a district court's decision to admit or exclude evidence absent an abuse of discretion. Daly, 99 Nev. at 567, 665 P.2d at 801.
The State presented testimony that in December 1995, Collman felt stress from working in the lockdown unit of the prison, Unit 2, a difficult and dangerous section also known as "the prison within the prison." Collman mentioned to a co-worker that he also felt stress at home because Damian was "getting into things," was out of control, and did not listen to Collman. For his benefit, Collman transferred to a less stressful unit for two weeks before returning to his original post in Unit 2.
Prior to admitting this testimony, the district court conducted an evidentiary hearing and determined that the temporary transfer was relevant to show that Collman was under stress shortly before Damian's death. The court also determined that the probative value of the evidence of the nondisciplinary transfer was not substantially outweighed by the danger of unfair prejudice.
We conclude that based on the district court's reasoning and the record as a whole, the court did not abuse its discretion.
IV. Evidence that appellant had been in jail
Collman argues that the district court erred by denying his motion for a mistrial based on references made to his being in jail. Reference to a defendant's prior criminal history may be reversible error. See Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988). The test for determining if such a reference occurred is whether the jury could reasonably infer from the evidence presented that the defendant had engaged in prior criminal activity. Id.
During the prosecutor's direct examination of Collman's friend, Robert Marcum, the following exchange took place.
Q. Now, do you recall--do you remember when that happened when you went to pick up this mattress?
A. Hum, it was actually the same--I guess he was in jail down in Las Vegas. And it was supposedly he was getting out of jail that day.
Q. . . . . Do you remember how long after [Damian's death] that could have happened?
A. Not exactly. That's the best way I can.
Additionally, during defense counsel's cross-examination of another of Collman's friends, Michael Palombo, Palombo also mistakenly and briefly revealed that Collman was in jail.
Shortly thereafter, outside the jury's presence, Marcum testified that although the prosecutor had specifically instructed him not to, he mistakenly revealed that Collman was in a Las Vegas jail in approximately February 1996. (The record does not divulge why Collman was in jail.) Marcum stated, "It just came out. I just--you know, I wasn't thinking about it." At the conclusion of this hearing, Collman moved for a mistrial. The district court denied the motion, stating that the slips were inadvertent, Marcum and Palombo did not disclose why Collman was in jail, and the jury could easily think that Collman was in jail due to the present matter.
After reviewing the references made and the hearing afterward, we conclude that the remarks improperly referred to Collman's prior criminal history but were harmless. Thus, the district court did not err in denying the motion for a mistrial. Palombo's and Marcum's statements that Collman was in jail wer
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