Collman v. State, 31085.

Citation7 P.3d 426, 116 Nev. 687
Case DateAugust 23, 2000
CourtSupreme Court of Nevada

David M. Schieck, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Sudabeh Fahami, District Attorney, and Theodore J. Beutel, and Rusty D. Jardine, Chief Deputy District Attorneys, White Pine County, for Respondent.

Franny A. Forsman, Federal Public Defender, and Michael L. Pescetta, Assistant Federal Public Defender, Las Vegas, for Amicus Curiae Federal Public Defender.

Stewart L. Bell, District Attorney, and Brian S. Rutledge, Chief Deputy District Attorney, Clark County, for Amicus Curiae Clark County District Attorney's Office.




Appellant Thomas Collman was convicted of first-degree murder and sentenced to death for killing three-year-old Damian Stach, the son of Lory Stach, Collman's livein girlfriend.

On appeal, Collman challenges various evidentiary and other rulings of the district court. None of these challenges warrant relief. Although we conclude that the jury was erroneously instructed in the guilt phase that child abuse constituted conclusive evidence of malice aforethought, we conclude that the error was harmless. We therefore affirm Collman's conviction and sentence of death.


Damian was born to Stach and her exboyfriend, Warren Williams, on January 5, 1993. Stach was apparently a loving, affectionate mother, and Damian a happy, healthy, and energetic baby.

In September 1994, Stach moved to Las Vegas, Nevada. Stach soon met Collman, and they began dating. Shortly thereafter, Stach became pregnant with Collman's child. Stach, Collman, and two-year-old Damian then moved into a house together.

Collman and Stach decided to move to Ely, Nevada, where Collman would train for a position as a prison guard at the Ely State Prison. In order to save money, Stach, Collman, and Damian moved into the home of Collman's parents in Las Vegas. On June 3, 1995, Collman moved to Ely to begin his training, and Stach and Damian remained at the Collman residence.

Damian's brother, Darian, was born in August 1995. In October 1995, Stach, Damian, and Darian joined Collman at the Cross Timbers Trailer Park in Ely. In November 1995, Stach started noticing that Damian was losing his hair and that he bruised easily. She could not afford to take Damian to the doctor; however, she falsely told people that she had sought medical care for him and discovered that Damian had a disease. Stach's brother, Richard Stach, sent her $300.00 to take Damian to the doctor; instead, Stach spent the money on household bills and Christmas presents. Around this time, Damian became shy, withdrawn, and lethargic.

In December 1995, the family rented a house with a basement on Avenue E in Ely. The carpeted stairs to the basement did not have a railing, but had a T-shaped landing in the middle dividing the stairway into two sections of six steps each.

On January 19, 1996, Collman was home sick and slept until noon. At about 7 a.m., Stach and the children were awake, and Stach discovered that Damian had eaten a whole pack of bubble gum and some taco shells. Stach swatted Damian on his buttocks and sent him to his room. At noon, when Collman awakened, Stach told him what Damian had done that morning. Collman called Damian over to him and asked about the incident. Damian lied and said he did not eat the gum or the taco shells; therefore, Collman swatted Damian for lying and sent him to his room.

Stach left the house at approximately 12:20 to 12:30 p.m. to do some errands. Collman, Damian, and Darian stayed at the house. According to Collman, he saw Damian go into the kitchen with the family dog following. He then heard Damian scream and a loud thud, like something hit a wall. Collman ran to the kitchen and looked down the stairs leading to the basement. He saw Damian lying at the bottom, crumpled up. Collman apparently attempted cardiopulmonary resuscitation (CPR) on Damian, but was unable to do so because the smell of Damian's vomit made Collman feel sick.

Collman called the office of Jamie Sullivan, where he knew Stach was completing an errand. He told Sullivan to tell Stach that Damian fell down the stairs, Damian was turning blue, and she should get her "fucking ass" home immediately. Sullivan testified that Collman sounded angry on the phone. Collman failed to call 911; rather, he put on his clothes, picked up Damian, and ran outside and toward the hospital. When Stach received the message from Sullivan, she immediately drove home where she encountered Collman running in the street with Damian in his arms. All together Stach was away from the house for approximately twenty to thirty minutes. They rushed to the hospital, arriving at 12:53 p.m., and Collman told Stach that Darian was still at home alone and she should return to pick him up.

At the hospital, the medical personnel unsuccessfully attempted for thirty minutes to resuscitate Damian, who was dead on arrival. Members of the medical staff testified that Damian was nonresponsive, bluish in color, and exhibited no signs of life when they began lifesaving procedures. They further testified that Damian was covered by overlapping bruises of various ages and possible bite marks. The bruises covered Damian's arms, legs, neck, face, head, abdomen, perineum (the area between the genitals and anus), rectum, penis, and testicles. Due to the amount, age, and areas of bruising, members of the medical staff testified that Damian's injuries were inconsistent with a fall down the stairs. Members of the medical staff testified that a story that the child fell down the stairs, the guardian's failure to call 911, the existence of overlapping bruises of varying ages, and inconsistency of the bruises with the guardian's story are all indicators of child abuse.

Dr. Ellen Clark, the medical examiner who performed the autopsy on Damian, testified that the cause of Damian's death was asphyxia leading to brain swelling, arrhythmia due to bruising around the heart, and/or multiple blunt trauma impact. She further testified that she found no bubble gum in Damian's airway. Dr. Clark explained that Damian apparently died from his body being placed in an awkward position where his knees were very forcefully and acutely bent and pulled all the way up to his chest, compressing his chest muscles. Such compression restricted Damian's breathing and disturbed the regulation of his heartbeat. This position would also leave Damian's buttocks and genital area exposed. The multiple trauma would additionally cause fat particles to break off and travel through Damian's body into his lungs and kidneys.

Dr. Clark examined and removed Damian's spinal cord and discovered that it was not injured; had it been injured, such an injury could have been consistent with a fall downstairs. Dr. Anton Sohn, Collman's medical expert, examined only photographs of the removed spinal cord. He testified that Damian died from spinal cord injury, not blunt trauma, indicating that Damian did die from falling.

Shortly after Damian's death, Stach called her brother, Richard, who immediately went to Ely with his girlfriend, Ana Flores. Collman's parents also went to Ely. On January 20, 1996, a search warrant was issued to search the house on Avenue E, requiring that Stach and Collman leave the house for a few days; during this time, they shared a motel room with Richard and Flores. Damian's funeral took place in San Mateo, California in early February 1996.

Eventually, investigations led the police to arrest Collman and charge him with murder. They also arrested Stach, charging her with child abuse and neglect causing substantial bodily harm. On June 20, 1996, the State filed a notice of intent to seek the death penalty against Collman based on two aggravating factors: the murder was committed by torture, and the victim was under fourteen years of age.

On June 24, 1996, Stach pleaded guilty to child neglect causing substantial bodily harm for permitting Damian to remain with a man she knew abused him.1 In exchange for this plea, she agreed to testify truthfully against Collman. Collman's trial commenced June 16, 1997.

Further evidence presented by the State

The State presented evidence of Collman's prior abuse of Damian, his general treatment of Damian, and his lack of remorse over Damian's death.

In January 1995, when Richard and Flores visited Collman and Stach in Las Vegas, Stach asked Collman to bathe Damian so she could wash the dishes. Collman refused, replying, "It's not my fucking kid."

In February 1995, Damian's paternal grandmother and his great aunt visited Las Vegas. They observed Collman become very agitated when Damian would cry, and Collman stated that the next time he had to watch Damian, he would throw Damian in the swimming pool and make it look like an accident.

Also in February 1995, Collman hit Damian on the buttocks with a piece of wood from a broken chair, leaving a large, dark purple bruise across both buttocks and extending down his legs. When Stach confronted Collman about the severe bruise, he instructed her to tell people that Damian fell; Stach complied. Collman testified at trial that Damian had headed for the pool, and because Damian did not know how to swim, Collman hit him with the wood to stop him.

In May 1995, Stach's friend, Monique Shaw, was at Collman and Stach's house. Damian was running down the street with the dog when Collman yelled to Damian to come back. Damian was laughing and did not respond to Collman. Collman stormed over to Damian, grabbed his shoulder, swung him around, and shook him. Collman had his hand up as if to hit Damian and brought his hand down. Shaw observed Damian jerk as if he had been hit. Damian started crying and ran to Stach.

Around the end of May 1995, shortly before Collman left for Ely, he spent a week working on a landscaping job with...

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