Leick v. People

Mr. Justice Holland

dissenting.

It must first be remembered that this is a capital case and defendant is now under a death sentence.

The statement of the facts and the procedure is well set out in the majority opinion. Since I herewith present what in my opinion should be the opinion of this court, I will content myself with a few observations of the majority opinion. On the question of whether, or not the trial court should have entered a judgment on the verdict returned by the jury on .the insanity issue, the majority opinion states:

“As we view it, such argument will not wash without losing content or color. Under the procedural change, permitting a disposition of the insanity issue before the not guilty issue, the trial is conducted in sections either before the same or a different jury. Together these sections constitute one trial. People v. Eggers, 30 Calif. (2d) 676, 185 P. (2d) 1 ; Schissler v. State, 122 Wis. 365 , 99 N.W. 593 .”

It is hard to conceive of a more prejudicial situation than to have the various material features of a criminal case tried in segments before different juries and then to sum up the entire matter, it is called one trial. It is bad enough to have two separate trials before one and *562 the same jury. If the jury first found that the defendant is sane, such finding, according to human nature, would have much to do with the question of guilt or innocence of the crime charged in a juror’s mind. This does not take into consideration the possibility of error in the sanity trial. If this condition could obtain where only one jury is involved, what could be the lurking possibilities if a second jury was involved in the trial of the other issue. There is no doubt in my mind but what judgment should be entered on the sanity hearing, thereby enabling defendant to have an immediate review before facing the hazard of a trial on the main issue.

It is stated in the majority opinion, in reference to the plea of not guilty by reason of insanity at the time of the commission of the alleged offense, that:

“Notwithstanding such plea of insanity, the presumption of sanity exists at the outset of the hearing, and it is incumbent upon the defendant to generate a reasonable doubt of its existence. Shank v. People, supra.” Why should defendant be called upon to generate a reasonable doubt when a judgment on the sanity question would be conclusive?

In the majority opinion, in a discussion of whether or not the trial court should have granted the motion for a mistrial, growing out of the interrogation of jurors on voir dire, it is stated:

“These statements were not prejudicial to Leick. If they had a tendency to prejudice the other members of the panel against Leick, the action of court and counsel removed it. Besides the prejudicial effect of such statement, if any, related only to the issue of not guilty, an issue not before these jurors.”

Remembering that this is a capital case and to say, “If they had a tendency to prejudice the other members of the panel against Leick, the action of court and counsel removed it,” is but to venture on the thin ice of prejudice.

I cannot agree with the following statement of the *563 majority opinion: “A person charged with a crime is only entitled to counsel to appear for him and aid him in his defense * * * and not to save him from his voluntary acts.” This statement has reference to the contention of defendant that the police officers should have advised defendant of his right to counsel and warned him that any statements he might make would be used against him, before taking his confession. The majority opinion also states: “Undoubtedly warning a suspect that his statement may be used against him is the better and safer practice.” If it is recognized as a better and a safer practice, then the defendant in a capital case is entitled to that “safer practice.” It is the function of counsel to see if the confession was truly voluntary and to determine whether defendant, being in the hands of authorities, was in possession of his faculties and not under pressure, threats or promises.

In the majority opinion it is stated:

“There being no right in one being thus questioned to have the police advise him that he may have counsel and there being no duty to warn him that his statement may be used against him, it becomes obvious that error assigned on those grounds is without merit.”

I wonder about the predicament had defendant called for counsel in face of the statement that one being questioned has no right to have counsel.

In the matter of the circumstance of the district attorney, during argument to the jury on the insanity issue, reading a partial transcript of the testimony: Objection was made to the use of this transcript on the ground that it gave undue emphasis to such evidence. I think this objection is good, and I believe the majority opinion recognizes some merit in the objection, because the majority opinion later says there may be some danger in this practice in that a jury may be induced to accept as bearing absolute accuracy and verity to that testimony which has been transcribed by the court reporter. Whether or not it was revealed that it was a transcript *564 as it was read by the prosecuting official would certainly emphasize the danger.

The remainder of this dissenting opinion is a copy of my original opinion herein, which did not have the approval of the majority of the court.

As reported in Leick v. People, 131 Colo. 353 , 281 P. (2d) 806 , plaintiff in error has been before this court on a charge of first degree murder. The first case of conviction was, on March 31, 1955, reversed and the cause remanded for a new trial on all issues raised by the plea of not guilty and a separate plea of not guilty by reason of insanity at the time of the alleged commission of the crime. Such new trial was had beginning on November 28, 1955, at which time the separate trial on the question of sanity was begun by the voir dire examination of the jury panel as to their qualifications to sit as jurors on the sanity hearing, at the conclusion of which the jury, duly empaneled, returned its verdict finding defendant sane at the time of the commission of the alleged offense. Trial then proceeded on the offense as charged in the information on defendant’s plea of not guilty, resulting in a jury verdict of guilty as charged in the information, and the penalty was fixed at death.

If defendant had a fair and impartial trial at the sanity hearing, then we would enter into a review of the trial proper on the murder charge; however, we are inclined to the view that error obtained in the sanity hearing, which, of course, must first be determined, because the sanity or insanity of defendant, if not controlling, is material in the prosecution and defense of the main charge.

Defendant is a confessed murderer, or at least an accessory before and during the act; however, if, upon a sanity trial without error, he was found to be insane, then in the eyes of the law, no crime by this defendant has been committed. Our system of jurisprudence requires that there be a fair and impartial trial upon all *565 phases of a charge. Insanity was and is a pleaded defense herein to the murder charge.

As is permissible in criminal cases, defendant has filed an assignment of errors including both the sanity hearing and the murder trial. The assignment contains ten specified claims of error in the sanity trial. Without passing upon the merit or demerit of each assignment in the sanity hearing, I believe that the motion for a new trial, which fully presented all of the alleged errors to the trial court, should have been granted, because a possibility of error as presented in all of the various assignments existed, and as made up from an over-all picture, it is disclosed that defendant did not have a fair and impartial trial in its true sense. In considering the many phases of this case involving the sanity hearing and the murder trial, it should not be overlooked that defendant in either or both trials is entitled to the benefit of any doubt, which always follows in a criminal proceeding. Viewed from any angle, defendant in the sanity hearing is clothed with these safeguards, because the plea of insanity is the only defense and is inseparable from the procedure to be followed on the criminal charge.

Counsel for defendant contends, as a first assignment of error, that the court erred in not entering judgment in the sanity proceedings, and there being no judgment there is nothing properly before this court for review. Regardless of the possible merit of this contention, defendant is not prejudiced thereby, because defendant is here with an exhaustive presentation of the errors in the sanity hearing, which this court is now about to determine.

Since there is an inseparable relation between this hearing and the murder trial, we believe the trial court erroneously curtailed counsel for defendant’s voir dire examination of prospective jurors, and there is a possibility that prospective jurors attending upon the panel were prejudiced from hearing the examination of jurors *566 called to the stand on the voir dire examination and the rulings of the court on questions' presented and objections made thereto. Counsel for defendant, in attempting to elicit information from prospective jurors who were called in order that he might make more intelligent challenges, attempted to inquire of jurors if they knew defendant was charged with murder and if they had formed or expressed any opinion as to defendant’s guilt on the murder charge which would affect their qualifications to sit as jurors in the sanity hearing.

The objections of the District Attorney to the line of questioning may generally be summed up from the following excerpt of the record:

“As I say, we have no objections to his finding out the frame of the mind that this Jury may be in because of something they read or heard about the case, or anything else in connection with that.

“But, we do say that insanity is an element of murder and they are called upon to decide whether or not he is guilty of one of the elements of murder. I say that that is wrong.

“There can be only one verdict in this case. That is the sanity or insanity. It has nothing to do with the next trial.”

The trial court then ruled on the objections in the following language:

“The Court having been fully advised by counsel on both sides, it is the ruling of this Court that counsel for the defense may inquire into the state of mind as best he can of these prospective jurors and can advise them that there has been a charge of murder.

“However, the objection is sustained that the sanity case is one of the parts of the murder trial.”

We fail to follow the reasoning of the district attorney and the trial court in this matter, because the verdict in the sanity trial has everything to do with the trial of the *567 murder charge, because, although the jury in that case is not bound by the verdict of the sanity trial, it certainly would be persuasive, and the ruling of the trial court to the effect that the sanity case is not one of the parts of the murder trial was and is prejudicial error. This court has determined that the issue involved in a sanity trial is not a collateral matter, but is a substantive defense to the criminal charge of murder. Beckstead v. People, 133 Colo. 72 , 292 P. (2d) 189 .

It seemed to be the position of the district attorney that a juror who condemned defendant as' being guilty of murder was still qualified to sit as a juror in the sanity hearing. This presents a strange situation, because the juror has expressed himself as believing the defendant guilty of the murder charge against which insanity is the only defense. It runs counter to human experience to believe that any juror who believed the defendant guilty of murder was in any sense qualified to try defendant on the issue of insanity, which was the only defense to the murder charge.

The statement made by a juror in the presence of the other jurors already in the jury box, and in the presence of the entire panel, that defendant was guilty and that the supreme court had reversed the case on a minor technicality, was sufficient to sustain a motion for a mistrial; however, the admonition of the trial court was only to disregard anything the juror had to say relative to that matter, and, as an admonition, was ineffectual.

When the entire record is considered, together with the limitations placed upon counsel for defendant, the statements of the district attorney, and the expressions of the court in making its rulings, the over-all picture is such that it is highly probable that the atmosphere was charged with prejudice against defendant, resulting in his not having a fair and impartial trial on the sanity hearing.

As a further supplement to the errors herein indicated, the trial court refused to permit a lay witness to *568 express an opinion as to the sanity of defendant. This occurred when a minister was called as a witness for defendant and testified that he had visited defendant at least once a week after his confinement in jail and visited with him for at least one-half hour on each occasion. When asked his opinion, objection was made and the court sustained the objection on the ground that the witness had not been qualified as a lay witness to give an opinion. It may be supposed at this point, that while the court was exercising its discretion in the matter, it likely abused that discretion when defendant is entitled to the benefit of all reasonable doubts; and further, the qualifications of this witness could have been explored by cross-examination. The objection to any answer that the witness might have made is on the ground that it would be simply a conclusion and not supported by facts. Objections that such proposed testimony states a conclusion only are sometimes pushed to captious extremes. McCarthy v. Anaconda Copper Co., 70 Mont. 309 , 225 Pac. 391 . It is reasonable to assume that the witness, a minister of the gospel, by virtue of his education was qualified to formulate an opinion that would be trustworthy. The jury was entitled to weigh and consider the witness’s opinion for what it was worth. The real question here went to the weight of testimony and not to its admissibility. This witness, from his many visits and conversations with defendant, formed an opinion just as any juror might have done. He was not allowed to express that opinion. Under the circumstances, it is quite unlikely, but he might have stated that he believed defendant to be sane. He should have been allowed, giving defendant full benefit, to have expressed his opinion, and, if, on cross-examination, he was unable to fortify that opinion by facts, circumstances, happenings, or expressions of defendant, then it was for the jury to weigh that unfortified opinion and determine its value. Sanity or insanity is not always established by expert witnesses. It is well established that other witnesses *569 who are not experts or professional men may give their opinion or relate their personal observation of the person whose mental condition is in question so far as those observations tend to throw light upon that position. 20 Am. Jur., page 643, §771. It was shown that the witness here had adequate opportunity to observe the speech, manner, habits and conduct of defendant. He should have been allowed to give his opinion on the issue of insanity and the weight of such opinion could have been developed by further examination or tested by cross-examination. “The weight and force of the testimony will depend upon the extent of the opportunity, as well as the power and habits of observation possessed by the witness, and a consideration of all the circumstances under which an opinion was formed. The courts do not undertake to lay down the definite rule as to how closely the witness must have observed the person whose sanity is the subject of inquiry in order to be qualified as a witness, as even a casual observer may discover mental manifestations that would make his testimony valuable. Whether there is a fair basis for an opinion by a witness must be left largely to the trial court, and the jury taking note of the opportunity and powers of observation of the witness, must then decide what weight and effect shall be given to his opinion. Kempf, et al. v. Koppa, 85 Pac. 806 .

It cannot be said that the absence of the testimony of this witness, which might have been favorable to defendant, was not the difference between the question of life imprisonment or death in arriving at the verdict.

For the reasons herein presented, it is my opinion that the cause should be remanded to the trial court for another trial on the plea of not guilty by reason of insanity at the time of the alleged commission of the offense, since a fair and impartial trial on that issue may well determine the outcome of the murder charge.

It is my opinion that the judgment or verdict on the insanity plea and trial should be reversed, and if, upon *570 another insanity hearing, defendant is found to be sane at the time of the commission of the crime, then the issues in that case stand submitted in this court for determination.