Calambro v. State

¶1concurring:

¶2I concur in the result reached by the majority but write separately to comment on the mutilation aspect of the opinion. I do this because in many of the cases decided by the court, murder involving “mutilation of the victims” has incorrectly become “murder accompanied by great damage to the victim’s body.” Thus, where two stab wounds may not be mutilation, ten wounds probably would be, because of the damage done to the body by so many wounds. A pistol shot to the head probably would not be seen as mutilation, whereas, a shotgun blast to the head probably would. I pointed out in my dissent in Browne v. State, 113 Nev. 305, 933 P.2d 187 (1997) (Springer, J., dissenting), that the essence of the mutilation aggravator is not disfigurement alone resulting from the killing act itself but, rather, the murderer’s intent to mutilate (maim) in addition to intending to kill his victim.

¶3This is a real mutilation case. The testimony is that Calambro “plunged a pry bar through ... the skull” and “attempted to separate Keith Christopher’s skull, the halves of the skull.” Thus, *115in the present case, the jury was certainly entitled to conclude that Calambro had a “ ‘specific intent’ to mutilate.” Browne, 113 Nev. at 322, 933 P.2d at 197 (Springer, J., dissenting) (quoting Domingues v. State, 112 Nev. 683, 696, 917 P.2d 1364, 1377 (1996)). The present case is an example of true mutilation and clearly distinguishable from the Brownecase, in which the appellant inflicted a number of blows to the head in the process of killing his victim.

¶4I note that Calambro inflicted a number of blows to his victim’s head with a hammer. As put in the majority opinion, while assaulting his victim, Calambro “checked the victim repeatedly after each blow to see if he was still alive.” The majority opinion appears to view the extensive head injuries resulting from the hammer blows as mutilation. I do not. That Calambro kept checking to see if his victim was dead tells me that he was killing, not mutilating. Much different is Calambro’s separating the skull of his victim into two parts. These acts show me that Calambro had “in addition to having the intention to kill, ... the added specific intention to mutilate and [did] in fact mutilate the murder victim.” Browne, 113 Nev. at 322, 933 P.2d at 198 (Springer, J., dissenting).

¶5In addition, for the reasons discussed in Nika v. State, 113 Nev. 1424, 951 P.2d 1047 (1997) (Springer, J., dissenting), I disagree with the majority that the evidence supports a finding that the murder was “at random and without apparent motive.” This case is an even stronger example of the misapplication of this aggravating circumstance. First, there was nothing random or indiscriminate about this killing. Calambro confessed to the police that, on the night of the murders, he anticipated killing Christopher before he (Calambro) entered the U-Haul facility. Thus, contrary to the majority’s assertions, the killing was not random but planned.

¶6Second, there are at least two “apparent” motives for the killing. The majority believes that there were no “apparent” motives for the murders because Calambro “had no reason to . . . be angry with” Christopher and because Calambro “did not take any of the robbery money.” Clearly, robbery was at least one “apparent” motive for the killing, whether it was Calambro or Due who physically took the money.1 Another “apparent” motive is revenge. Due had been fired as a U-Haul employee after an altercation with Crawford. It is reasonable to conclude that Calambro was angry with Christopher because Christopher was a U-Haul employee or because he was working alongside *116Crawford, and that Calambro killed Christopher to avenge Due’s being fired.

¶7No evidence exists that this killing was either at random or without apparent motive, much less both. Therefore, I would hold that the finding of this aggravating circumstance is invalid.

¶8Given the nature of this murder and the clear presence of at least two aggravating circumstances, I would affirm the death penalty judgment because the remaining aggravating circumstances, previous felony convictions and murder committed during the course of a robbery, so clearly outweigh the mitigating circumstances in this case. See Leslie v. State, 114 Nev. 8, 952 P.2d 966 (1998) (Springer, J., concurring).