Summary
suggesting that judicial rehabilitation by "leading questions" designed to "give the answers desired by the state to qualify [the juror]" may amount to judicial advocacy
Summary of this case from People v. ClarkOpinion
No. 18,024.
Decided January 13, 1958. Rehearing denied March 24, 1958.
Defendant was convicted of murder in the first degree and sentenced to death.
Affirmed.
1. CRIMINAL LAW — Plea — Insanity — Separate Trial — Statute. Under C.R.S. '53, 39-8-3, Cum. Supp. '55, providing that disposition of a plea of insanity in a criminal case may be had before trial of the issue of not guilty, either before the same or a different jury, and such issues are tried separately, they constitute but one trial.
2. Charge — Plea — Trial — Judgment. Where there is but a single charge to which defendant pleads "not guilty by reason of insanity at the time of the commission of the offense" and the further plea of "not guilty," and the issues so raised are tried separately, a single judgment only could be entered.
3. Separate Issues — Trial — Constitutional Law. Separate hearings of the issues raised by pleas of insanity and not guilty, in a criminal case, do not violate the constitutional right to a speedy public trial by an impartial jury of twelve, or of due process of law.
4. Jury — Challenge for Cause — Voir Dire Examination — Prejudice. On trial of a criminal case where the issue of insanity is tried separately, questions of both counsel to prospective jurors eliciting answers disclosing that such jurors had no opinions and had expressed none concerning defendant's sanity, and that they entertained no bias or prejudice against him on the issue of insanity, and that they could try him fairly and impartially on such issue, presented no grounds of challenge for cause.
5. Jury — Challenge for Cause — Discretion of Court. In the consideration and disposition of challenges for cause in a criminal case, the trial court is charged with the exercise of a sound discretion, and the concern of a reviewing court extends only to ascertaining whether the trial court properly exercised such discretion.
6. Jury — Voir Dire Examination — Opinion — Challenge — Discretion of Court. Admission that he held an opinion before, or at the time of, his voir dire examination, but that he can disregard such opinion, listen to the evidence and apply it to the instructions of the court, and that he can and will be fair and impartial, brings into play the trial court's discretion to determine the competence of such prospective juror to sit in judgment in the case.
7. Jury — Challenge — Discretion of Court. In a criminal case, if the trial judge is persuaded that a juror would fairly and impartially try the issues, his denial of a challenge for cause should not be disturbed, except where such denial is clearly an abuse of discretion.
8. Plea of Insanity — Nature. It has been held that a plea of insanity is one in the nature of confession and avoidance, by asserting it, the defendant admits the act charged but denies criminal culpability.
9. Plea of Insanity — Presumptions. Notwithstanding a plea of insanity, the presumption of sanity exists at the outset of the trial and it is incumbent upon defendant to generate a reasonable doubt of its existence, but once he has produced evidence tending to beget a reasonable doubt, he casts upon the state the obligation of presenting evidence which will satisfy the jury beyond a reasonable doubt that he was sane at the time of the commission of the act charged.
10. Jurors — Competency. Prospective jurors who gave answers on their voir dire examination, to the effect that though they had entertained opinions as to defendant's guilt, they could and would decide fairly and impartially pursuant to the instructions of the court, were not disqualified.
11. Trial — Remarks of Juror — Prejudice. Statements of a prospective juror in the presence of the panel, to the effect that defendant had once been convicted, but that case had been reversed by the Supreme Court on a technicality, where court at request of counsel admonished other members of the panel to disregard such remarks, were not prejudicial since they related only to the issue of not guilty and not to the issue of insanity then before the jury.
12. Witnesses — Offer of Proof — Opinion Testimony. Sustaining objection to testimony of a clergyman, who visited defendant a number of times, as to his opinion of defendant's ability to distinguish between right and wrong, on the ground that the witness was not competent to give such testimony for lack of proper qualifications, was not error where no offer of proof was made.
13. Witnesses — Opinion Testimony — Qualifications. One who in the opinion of the trial court, shows adequate means of becoming acquainted with the person whose mental condition is in issue, after detailing the facts and circumstances concerning his acquaintance and the acts and conversations upon which his conclusion is based, may give his opinion on the question of sanity.
14. Witnesses — Opinion Testimony — Non-Expert — When Admissible. The opinion of a non-expert is admissible only when it is made to appear that his acquaintance with a defendant, whose sanity is in issue, had the requisite nearness in time after the act charged, to persuade the court, in the exercise of a sound discretion, to receive it.
15. Witnesses — Opinion Testimony — Admissibility. Where a witness, called to give opinion testimony, did not detail the facts and circumstances, acts, conduct and conversations upon which is conclusions would be based, his testimony was properly excluded.
16. CONSTITUTIONAL LAW — Criminal Law — Right to Counsel. A person charged with 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.
17. CRIMINAL LAW — Confession — Co-Defendant — Admissibility. The admission in evidence of the confession of a co-defendant, with certain statements therein to which the defendant objected deleted, was not error.
18. Confession — Direct Evidence — Admissibility — Corroboration. The statement of a police officer, relating to a conversation with the defendant concerning the confession of a co-defendant, together with the physical evidence and other facts and circumstances, was sufficiently corroborated as to be admitted as direct evidence.
19. Evidence — Admissions — Denial. A statement containing exculpation is admissible in evidence without first establishing that it was voluntary.
20. Evidence — Admission — Corroboration. An admission is not rendered involuntary because it is uncorroborated.
21. WORDS AND PHRASES — Involuntary. The finding of "involuntary" rests upon something which, time, place, circumstances, or individual considered, would be equivalent to some measure of compulsion.
22. CRIMINAL LAW — Evidence — Admission — Sufficiency. An admission by the accused, when corroborated by other evidence, may be sufficient to sustain a conviction.
23. HOMICIDE — Death Penalty — Direct Evidence. Where defendant and his co-defendant planned the death of defendant's wife and both participated in the execution of the plan, it was immaterial which of them actually strangled the deceased, and where each of them made signed statements and the defendant made verbal statements to a police officer, such statements, together with the physical evidence in the case, constituted sufficient direct evidence to sustain the death penalty.
24. CRIMINAL LAW — Trial — Arguments of Counsel. Statements by the prosecuting attorney to the jury are not prejudicial to defendant when within the range of legitimate argument and limited to the evidence and the reasonable inferences to be drawn from the facts in evidence, and he may state his own conclusions from the law and the testimony, provided he does not misstate the testimony or state facts as to which there is no testimony.
25. Trial — Argument to Jury — Reporter's Transcript. It was not error to permit the prosecuting attorney to read portions of the transcript of testimony to the jury during argument on the ground that it gave undue emphasis to such evidence, where the prosecutor carefully refrained from stating that he was reading from the reporter's transcript.
26. Plea — Subsequent Insanity — Statute. C.R.S. '53, 39-8-6, requires that a plea of insanity arising at some stage subsequent to the offense, be made by verified petition, supported by the affidavit of a physician who is a specialist in mental diseases, and an attempt to enter such plea without compliance with the statute is ineffectual.
27. Plea — Insanity — Subsequent to Event — Statute. Where no proper plea of insanity relating to a time subsequent to the alleged offense has been entered, and nothing in the record prompts the court to move in the matter, no prejudice results to the defendant, since proceedings under the statute may be initiated at any time.
Error to the District Court of the City and County of Denver, Hon. Edward J. Keating, Hon. Joseph M. McDonald, Judges.
Mr. CHARLES GINSBERG, for plaintiff in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. JOHN W. PATTERSON, Assistant, for defendant in error.
LEICK was charged with murder, to which he entered pleas of not guilty, and not guilty by reason of insanity at the time of the alleged commission of the offense. Upon trial he was convicted of murder in the first degree and sentenced to death. On writ of error to this Court, the judgment was reversed and the cause remanded for a new trial. Leick v. People, 131 Colo. 353, 281 P.2d 806.
Following the decision in Leick v. People, supra, the statute governing pleas of insanity in criminal cases was materially amended, the amended statute becoming effective eight days after the denial of the petition for rehearing in that case. By reason thereof, Leick was rearraigned for the retrial of the charge. He renewed his pleas formerly made, and the record further shows that he entered a plea of insanity since the commission of the alleged crime. Leick was then tried anew, pursuant to the mandate of this Court, on the issues of insanity at the time and not guilty.
The issues of (1) not guilty by reason of insanity at the time of the alleged commission of the crime, and (2) not guilty, were tried in sections before different juries, and in that order. On the first issue the jury returned a verdict finding that Leick "was, on the 1st day of December, 1953, at the time of the alleged commission of the crime, legally sane." On the second issue the jury returned a verdict finding Leick "guilty of first degree murder as charged in the information," and fixed the penalty at death.
After each verdict Leick filed his motion for a new trial: each motion was heard in due course and denied. Following the denial of the motion for new trial filed in connection with the hearing on the issue of "not guilty," the trial court sentenced Leick to death. From the judgment and sentence entered Leick seeks review by writ of error.
As said, trial of these issues was had in two sections each before a different jury. Accordingly, Leick divides his assignments of error into those charging errors in the proceedings involving the issue of insanity and those involving the issue of not guilty.
In connection with the insanity issue he asserts that the trial court committed prejudicial error in (1) not entering judgment at the conclusion of the trial of that issue, thereby denying him the right of an immediate review, (2) not excusing jurors, on his challenge for cause, who expressed opinions as to Leick's guilt; (3) failing to declare a mistrial when a juror, upon being interrogated as to his qualifications, stated in the presence of other members of the jury panel that Leick was guilty and was so adjudged in a prior trial, notwithstanding which the Supreme Court reversed the case because of some minor technicality; (4) not allowing a lay witness to express his opinion concerning Leick's insanity; and (5) denying Leick's motion for new trial. Error was also assigned to the reception of the verdict which, it is said, was contrary to the law and evidence.
As to that section of the trial having to do with the issue of not guilty, Leick assigns as error (1) the refusal of the trial court to enter judgment on the verdict finding Leick sane before proceeding with the trial on the issue of not guilty; (2) the admission in evidence of Leick's confession when it was made to appear that he had not been advised of his right to counsel nor warned that such statement might be used against him; (3) the admission in evidence of the confession of Leick's confederate on the ground that the evidence disclosed his partial dissent to the confederate's statements; (4) the submission to the jury of the voluntariness of an admission by Leick "for the reason that said statement to Captain William E. Flor was entire uncorroborated"; (5) the submission to the jury of a form of verdict authorizing the death penalty, on the ground that the evidence at most was circumstantial; and (6) the denial of a motion to instruct the jury to disregard certain statements of the District Attorney made in the course of final argument, the contention being that such statements had no support in the evidence and were highly prejudicial to Leick.
A proper resolution of some phases of this case requires a consideration of parts of the statute relating to pleas of insanity in force when the present case was tried.
The form and manner of pleading insanity in criminal cases are set forth in C.R.S. '53, 39-8-1 and 39-8-3. Cum. Supp. '55, and in C.R.S. '53, 39-8-6. By 39-8-1 it is provided:
"If one of the defenses of the defendant is insanity, it must be pleaded at the same time with other please, unless it is to be the sole plea to the charge. It must be pleaded orally, either by defendant or by his counsel, in the form, 'not guilty by reason of insanity at the time of the alleged commission of the crime.' A defendant who does not thus plead not guilty by reason of insanity shall not be permitted to rely on insanity as a defense to any accusation of crime; provided, however, that evidence of mental condition may be offered in a proper case as bearing upon the capacity of the accused to form the specific intent essential to constitute a crime."
39-8-3 provides for the order of trial of the offense where the insanity plea is joined with other pleas, and reads as follows:
"When a defendant pleads not guilty by reason of insanity at the time of the alleged commission of the crime, and joins with it another plea or pleas not involving insanity, including the plea of not guilty, after the period of observation, the case, in the discretion of the court, may be either set for trial on the insanity issue alone, or may be set for one trial upon all issues raised by all pleas entered; provided, however, that any defendant who was entered a plea of not guilty by reason of insanity shall have the right to a separate trial of that issue upon written demand therefor to be filed in the cause by said defendant or his attorney within twenty days after arraignment. If a defendant shall demand said separate trial on the issue of insanity, or if the court in its discretion shall order a separate trial thereon, the issue of insanity shall be first disposed of by trial to a jury."
39-8-6 details the pleas which may be presented by a defendant who desires to assert insanity at some stage subsequent to the commission of the alleged offense. The pertinent parts of the section are as follows:
"(1) A person charged with the commission of a felony or a misdemeanor who becomes insane after such commission shall not be tried for the offense while his insanity continues. If after verdict of guilty and before judgment such a defendant becomes and remains insane, no judgment shall be given while the insanity continues. If after judgment and before execution of the sentence such a person becomes and remains insane, then in case the punishment be death, the execution thereof shall be stayed until his recovery from the insanity.
* * *
"(3) In any of these cases the judge of the court in which the criminal charge against such defendant is or has been pending, if he believes the defendant is insane or has a reasonable doubt thereto, of his own motion may impanel a jury to determine by its verdict whether such defendant has thus become and then is insane.
"(4) In any of these cases where it is alleged that the defendant has become thus insane, and such allegation is made in a verified petition filed in the court where the criminal charge is or has been pending, supported by the affidavit of a physician who is a specialist in mental diseases stating as his opinion that the defendant has thus become and is insane, the judge of the court may make such investigation as to the condition of the defendant's mind as in his discretion he deems advisable.
"If after such investigation the judge believes that the defendant has thus become and then is insane, or has a reasonable doubt thereto, with all convenient speed, he must impanel a jury to determine by its verdict whether the defendant has thus become and then is insane."
Should the trial court have entered a judgment on the verdict returned by the jury on the insanity issue? Leick contends that judgment should have been so entered; that the statute refers to a "trial on the insanity issue alone"; that a trial contemplates a conclusion in the form of a judgment; and that the failure to enter a judgment denied him the right to an immediate review in the Supreme Court.
As we view it, this argument does not wash without losing content and color. Under the procedural change provided by the statute, permitting a disposition of the insanity issue before the issue of not guilty, 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.
The action is single. Leick was confronted with one charge. To it he directed two defenses, both of which raised the issue of his culpability. Success on the issue of insanity would have exonerated him of guilt; failure to prevail on that issue left the issue of not guilty for determination, and upon the latter issue he suffered an adverse verdict. On the single charge one judgment only could be entered. Hence, the trial court properly refused to enter judgment on the verdict returned on the issue of insanity.
This question of separate trials of the issues before the same or different juries has been raised in other jurisdictions, principally on constitutional grounds. The right to a trial by a jury of twelve, the right to a speedy public trial by an impartial jury, due process, and other constitutional rights have been argued and held not violated, the courts holding generally that the trial of the issues separately results in one trial. See Schissler v. State, supra; People v. Troche, 206. Calif. 35, 273 Pac. 767; State v. Toon, 172 La. 631, 135 So. 7.
Several jurors, in the course of questioning as to their qualifications to sit in the insanity proceedings, stated that they had opinions concerning Leick's guilt. These jurors, however, declared that they had no opinion relating to the issue of insanity, and that they could decide the issue fairly and impartially. Leick challenged these jurors for cause, and the trial court refused to excuse them.
It is quite true that when analyzed as a legal concept, a declaration of belief in the guilt of the accused includes a belief in his mental capacity to commit the crime. A careful scrutiny and study of the interrogation of these jurors and their answers, however, does not remotely suggest that they so considered their statements. We will not indulge a presumption to that effect.
It is clear from the answers of these jurors to the questions put to them by counsel for both parties that they had no opinions and had expressed none concerning Leick's sanity or insanity, and that they entertained no bias or prejudice against him on the issue of insanity or his plea of insanity, and that they could try him fairly and impartially on that issue. By reason thereof, the trial court properly overruled Leick's challenges for cause. Shank v. People, 79 Colo. 576, 247 Pac. 559; State v. Hoagland, 39 Ida. 405, 228 Pac. 314; State v. Olsen, 88 Kan. 55, 127 Pac. 625; State v. Hoffman, 94 Mont. 573, 23 P.2d 972; Tubb v. State, 55 Tex. Cr. 606, 117 S.W. 858; Keffer v. State, 12 Wyo. 49, 73 Pac. 556.
Equally unassailable is the ruling of the trial court when considered in another of its aspects. In the consideration and disposition of challenges for cause the trial court ought to exercise a wise and sound discretion. C.R.S. '53, 78-5-3; Shank v. People, supra; McGonigal v. People, 74 Colo. 270, 220 Pac. 1003; Baker v. People, 72 Colo. 68, 209 Pac. 791. Our concern as a reviewing court extends only to ascertaining whether the trial court exercised such discretion.
Admission that he held an opinion before, or at the time of, the voir dire examination, in the course of which in juror states that he can disregard such opinion, listen to the evidence and apply to it the instructions of the court, and that he can and will be fair and impartial in the trial of the issue, brings into play the trial judge's exercise of this discretion. To believe or not to believe becomes his problem; if the trial judge believes, may we say he erred in believing? May we supersede his determination of fact in this respect?
The proper exercise of this discretion requires the trial judge to determine the competence of the juror to sit in judgment in the case. He hears the questions put to the juror and the answers given, observes the juror's demeanor while being interrogated, and discerns through the use of his eyes, ears and intelligence wherein truth and credit should be given. The reviewing court does not have the benefit of this personal observation which is so important in judging the credibility of the juror.
We should ever bear in mind the exclusive vantage point of the trial judge in determining the credit and weight which should be given to the juror's statements in the course of the voir dire examination. If the trial judge is persuaded that the juror would fairly and impartially try the issue, his denial of a challenge for cause should not be disturbed, except where it is made to appear that his denial was clearly an abuse of discretion. Thompson v. People, 26 Colo. 496, 59 Pac. 51.
No such abuse of discretion emerges from the pages of this record. The trial judge determined as a fact the fitness of these jurors to hear and determine the insanity issue.
But beyond this we find an additional determinant which dispels all doubts concerning the qualifications of these jurors. It involves a proper understanding of the plea of not guilty by reason of insanity at the time of the alleged commission of the offense, and a clear comprehension of the manner in which the jurors were interrogated regarding this defense.
It has been held that such a plea is one in the nature of confession and avoidance. Boyd v. People, 108 Colo. 289, 116 P.2d 193. By asserting it the defendant admits the acts charged, but denies criminal culpability. State v. Quigley, Me. 435, 199 Atl. 269. However, such admission extends only and solely to the consideration of such plea; beyond that it has no efficacy in the criminal case.
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. But, once he has produced evidence tending to beget a reasonable doubt, he casts upon the state the obligation of presenting evidence which will satisfy the jury that he was sane beyond a reasonable doubt at the time of the act charged. Graham v. People, 95 Colo. 544, 38 P.2d 87; Arridy v. People, 103 Colo. 29, 82 P.2d 757.
From the record before us it clearly appears that interrogation of the jurors proceeded in obvious recognition of the law as thus enunciated. Time and again statements preliminary to questions were made by defense counsel to various jurors evincing this recognition. On one occasion he explained that the issue of insanity called for a determination of Leick's responsibility for "the criminal act of murder"; that "his wife was murdered and he participated in that crime"; that these were unquestioned facts. On another, he said: "Now, it is obvious that the defendant had something to do with the death of his wife. In fact, there is a direct responsibility for that death, excepting for the circumstances of his mental condition." On still another, defense counsel stated: "There will be the appearance of the defendant on the stand himself to tell what he did and let you judge him and judge his actions, his conduct and mentality."
These statements are typical of many made by defense counsel to jurors as groundwork for questioning them concerning their qualifications to sit as triers of the facts. They were made within the framework of a plea in the nature of confession and avoidance. Quite naturally, such a plea, thus presented, evoked opinions concerning the act while professedly it left the minds of the jurors free to consider fairly and impartially the culpability of the actor.
And such is likely to be the case in any situation involving the confession of conduct which the jurors instinctively censure, but the avoidance of which the juror states he can and will decide fairly and impartially pursuant to the instructions of the court, and upon the evidence produced to establish such avoidance.
From any of the three approaches made to this assignment of error, we arrive at the same conclusion. We hold that the answers made by these jurors to the questions propounded to them, touching their competency to hear and determine the issue of insanity, were not disqualifying.
In response to questioning by the trial court and Leick's attorney, a juror stated, in the presence of other members of the panel, that the guilt of the defendant had been fully established in the previous trial, but that the Supreme Court had reversed the case on a minor technicality. The trial court thereupon excused such juror for cause.
Thereafter the following proceedings took place:
"Mr. Ginsberg: I would like at this time to request the Court to admonish the jury on the previous juror's expressions that the defendant's case was reversed in the Supreme Court on a minor technicality. I think the Jury ought to be instructed to disregard that statement by the juror — that the actions of our Supreme Court is never predicated upon minor technicalities, but on the law. I think the Jury should be admonished at this time.
"Mr. Keating: We have no objection, if the Court please, to the request by counsel. May we remind counsel that when he is questioning the jury it is up to him to control the answers. We have no right to get up and to object to any questions that he is elliciting [sic] from the jury. We think it is proper that the remarks made by the juror be disregarded.
"The Court: Ladies and Gentlemen, first of all I think it should be known that there is a definite presumption of the intelligence of you Ladies and Gentlemen who have been placed in this box as prospective jurors [sic]. The remarks as made by the juror who was excused is definitely his personal opinion. I don't believe that you should pay any attention to it at all, if it [sic] had any effect upon you.
"You will disregard anything that he had to say relative to this matter, please.
"Mr. Ginsberg: I am going to move at this time for a mistrial." (Emphasis supplied.)
The trial judge and counsel then retired to chambers where the motion was argued at length, after which the judge denied it. Was this ruling erroneous?
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 then before these jurors. And it must be borne in mind that these jurors were required to meet only the test of qualification on the issue of insanity, as shown above.
Moreover, the trial court promptly and correctly directed the jurors to disregard these statements, and it "is presumed that the jury followed the court's instruction." Bauman v. People, 130 Colo. 248, 274 P.2d 591. Whether a mistrial should be declared rests in the sound discretion of the trial court. "[I]n the absence of abuse of discretion its ruling thereon will not be disturbed on review." Routa v. People, 117 Colo. 564, 192 P.2d 436. We find no error in the denial of the motion for mistrial.
Leick called as a witness a clergyman who testified that he had not known the defendant until he visited him for the first time "soon after he was incarcerated in the County Jail in Denver." Thereafter, he saw Leick "about once a week," remaining with him "approximately half an hour at a time." While Leick was in the penitentiary he "talked to him three or four times."
He further testified that he had observed Leick during these visits, and that he had reached an opinion as to his mentality, whereupon he was asked the question, "Will you state as a layman what your opinion is as to his ability to distinguish between right and wrong?" The objection that the witness was not competent to testify for lack of a proper foundation to establish qualification was sustained.
No offer of proof was made, and for aught we know the witness might have testified adversely to Leick. Such offer should have been made. Brown v. People, 120 Colo. 493, 210 P.2d 837. "The decision of the court on this point cannot be reviewed, since no offer was made in the court below to prove the fact sought to be elicited by the interrogatory." Ford v. State, 46 Neb. 390, 64 N.W. 1082.
It is to be noted that the testimony is obscure on the nearness in time after the event that the clergyman first became acquainted with Leick, nor did the question, as framed, relate to his mental condition at the time of the event. Assuming the question referred to the time of the tragedy, what is the law which applies to the circumstances here narrated.?
This court is committed to the rule that "one who, in the opinion of the trial court, shows adequate means of becoming acquainted with the person whose mental condition is in issue, after detailing the facts and circumstances concerning his acquaintance and the acts and conversation upon which his conclusion is based, may give his opinion on the question of sanity. The weight of that opinion is for the jury." Turley v. People, 73 Colo. 518, 216 Pac. 536; Smith v. People, 120 Colo. 39, 206 P.2d 826.
This rule has been subjected to much criticism. See Wigmore on Evidence (3rd Ed.), Sections 1933, et seq. Regardless of the propriety of the criticisms leveled against it, the rule certainly should apply to the non-expert who would state an opinion of a mental state at a certain time, based upon an acquaintanceship postdating such time. Smith v. People, supra. See State v. Douglas, 312 Mo. 373, 278 S.W. 1016; Shults v. State, 37 Neb. 481, 55 N.W. 1080; Stewart v. Manship, 193 Ind. 694, 140 N.E. 543. Furthermore, the opinion of such non-expert is admissible only when it is made to appear that his acquaintanceship with the defendant had the requisite nearness in time after the act in issue which would properly move the sound discretion of the court to receive it. McGonigal v. People, supra. The exclusion of a lay opinion formed by observation commenced more than three months after the transaction in questions was held not to be an abuse of discretion. McGonigal v. People, supra.
Unfortunately, the record does not show with any degree of definiteness the time at which the clergyman began his observations of Leick. Nevertheless, we are inclined to believe that it was greatly less than three months. Not having, however, detailed the facts and circumstances — the acts, conduct and conversations upon which his conclusion would be based — the trial court had no other recourse than to follow the law as enunciated in decisions of this court. The exclusion of the lay opinion was proper.
We have carefully reviewed the trial of the insanity issue. A number of psychiatrists testified that Leick was sane at the time of the act in issue. The defendant testified in his own behalf, and detailed the events which occurred prior to and on December 1, 1953. Whether the scheme to kill his wife, and the execution thereof, revealed a mental aberration which would remove responsibility, was for the jury to determine. A psychiatrist called by Leick gave his complete analysis of why he considered Leick insane on the day in question. Other witnesses who were acquainted with Leick testified to incidents prior to the killing which the jury could consider on the question of mental fitness.
The legal problems arising in the course of the trial of the issue of insanity have been scrupulously studied. From a review of the record and an analysis of the law, we are convinced that the motion for new trial on this issue was properly denied. We find nothing in the record to warrant us in holding that the verdict of the jury finding defendant sane at the time of the alleged commission of the offense was contrary to the law and the evidence.
In passing to the not guilty issue, we need not discuss further the first assignment: That the trial court should have entered judgment on the verdict on the issue of insanity before proceeding with the trial on the issue of not guilty. What we have already said on this question disposes of this assignment of error.
It is argued that the police officers should have advised Leick of his right to counsel and warned him that any statement he made might be used against him before taking his confession. Undoubtedly, warning a suspect that his statement may be used against him is the better and safer practice. Criminal Evidence, Melville, page 56, 22 C.J.S., § 822, page 1442.
A person charged with a crime is only entitled to counsel to appear for him and aid him in his defense (Art. II, Section 16, Constitution of Colorado; C.R.S. '53, 39-7-29 and 39-7-31), "and not to save him from his voluntary acts." State v. Bunk, 4 N.J. 461, 73 A.2d 249, 19 A.L.R.2d 1316. The right to be represented by counsel of his own choosing is not involved here.
Both questions are answered in the case of Cahill v. People, 111 Colo. 29, 137 P.2d 673, one by direct statement and the other by clear inference:
"Considering these contentions categorically, it is well established that a confession voluntarily made is not invalidated or made inadmissible in evidence by reason of the failure of the officers to inform the defendant that his confession might be used against him.
* * *
"The fact that defendant was in custody at the time he made the statement, in itself, does not render the evidence incompetent (Reagan v. People, supra), nor is evidence of a confession 'rendered inadmissible merely by the fact that it was obtained during an undue delay between arrest and the time when accused was brought before the court; by the fact that when it was made persons in authority were present * * *, or that he was not represented by counsel * * * or because of other similar factors.' 22 C.J.S., p. 1431, § 817."
See Sukle v. People, 109 Colo. 363, 125 P.2d 151.
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 any statement made by him may be used against him, it becomes obvious that error assigned on those grounds is without merit.
Leick and his confederate. Dukes were questioned separately and then together. Both signed written statements which were substantially alike in content except for the detail of who actually choked Mrs. Leick. Each charged the other with taking her life, and each accused the other of lying in respect to the matter; otherwise they were in agreement as to the events preceding, at the time of, and after the strangling of Mrs. Leick.
When it was sought to introduce Dukes' confession in evidence, Leick objected on the ground that on the "vital question * * *, who did the killing of Evelyn Leick, there is a complete and utter difference between Dukes' and this defendant's statements shown by Exhibits Y and Z." In admitting Dukes' confession the court ordered the disputed detail deleted, and as thus expurgated it was submitted to the jury for its consideration. This ruling forms the basis of an assignment of error.
"Even if a suspect makes a confession or statement implicating other persons present, it is inadmissible as against them unless they have heard and assented to it, or unless, in the opinion of the court, the circumstances are such as to show that the others intended to commit themselves by their silence." (Emphasis supplied.) Criminal Evidence, Melville, page 62. Since no assent was given to the whole, are the undisputed parts of Dukes' confession thereby rendered inadmissible?
Intimation of admissibility appears in the decision of Cowles v. People, 107 Colo. 161, 110 P.2d 249. A clear holding of admissibility is contained in Moeller v. People, 70 Colo. 223, 199 Pac. 414, and People v. Lehne, 359 Ill. 631, 195 N.E. 468. In the latter case the circumstances surrounding the taking of statements were very similar to those in the present case. It was said in that case wherein both defendants were being tried:
"The statement of Lehne, in so far as it was denied by Mrs. Puhse, was not read to the jury; those parts included within the brackets above being suppressed by the court. It is our opinion that when Lehne completed the dictation of his statement, doing it, as he did directly from the face of and in answer to the statement of Mrs. Puhse, it became as deleted, competent evidence as against both of them."
We find no error in the admission of Dukes' statement with the disputed detail expunged so that the jury had before it only those portions to which Leick assented.
The next assignment requires a quotation of the testimony of the witness Flor, a detective who was in charge of the interrogation of Leick and Dukes. Because, as asserted, it was "entirely uncorroborated," Leick contends its admission is reversible error.
Flor testified that he talked to Leick after he signed the confession. In this conversation Leick advised Flor that all he had told him in the written statement was not true, and that he would not give a full story of what occurred. Thereupon, the conversation between Leick and Flor shifted to Dukes' statement by Flor asking "if all the story was true — "
"Q. What story was true? A. All Dukes' story was true. Q. All right. A. He said it was true, except that Dukes actually killed Evelyn — Q. Just a moment, Captain. A. — while he was driving away from the apartment. Q. Handing you again People's Exhibit Z, I believe you identified that as a statement of Gene Dukes, is that correct? A. Yes. Q. And you said that Dukes' statement was true except that Dukes had killed Evelyn. Is that the statement that you and he were talking about? A. Yes. This statement here."
In Leick's brief the position is taken that this is an uncorroborated admission without which "there is no direct evidence whatever as to how Evelyn Leick came to her death." According to Leick's signed statement he did not know if he was present when Evelyn was choked to death. Dukes, in his signed statement, said that Leick killed her. This portion of Dukes' statement was suppressed, and is not part of the evidence in this case.
But both signed statements were in accord in recounting the plan of Leick and Dukes for accomplishing Evelyn's death; the motivation for the killing; the acts of Leick and Dukes in the execution of the plan up to the point of the actual slaying; and their removal of her apparently lifeless body from the front seat of the car to the rear thereof.
The car used for the perpetration of the scheme was driven by Leick. Pursuant to their plot the car was parked at the rear of the apartment house in which the Leicks lived, with Dukes hidden in the rear of the car. Leick, his wife and her sister climbed into the front seat, and seated themselves in that order, with Leick behind the wheel. After the car was started Dukes raised up and stated, "This is a stick-up." He then struck the sister with an iron bar, and she was flung from the car. The car left this scene with three persons in it: Leick behind the wheel, his wife, and Dukes. As to these details both signed statements agree.
The physical evidence shows distinct markings on the throat of Evelyn; the city pathologist gave it as his opinion that Mrs. Leick died from asphyxiation by strangulation. Photographs taken after the car was found indicate that a struggle took place therein. Other photographs show the rear of the car with Mrs. Leick lying on the floor with her head to the rear of where the driver would be seated.
All these circumstances were corroborative of the admission; they belie the argument that Leick's verbal statement to Flor "was entirely uncorroborated." That being the case, the premise of Leick's assignment of error is without content.
Since we are not certain of the real meaning of this assignment, we will consider another element of it. Leick maintains that the trial court "erred in submitting to the jury the determination as to whether or not a verbal statement made to Captain William E. Flor was a voluntary admission on the part of the Plaintiff in Error, for the reason that said statement to Captain William E. Flor was entirely uncorroborated."
Attempted exculpatory or mitigatory matter appears in this conversation between Flor and Leick. Leick advised Flor that all he had said in his signed statement was not true, and further asserted that Dukes, and not he, killed Evelyn. That the exculpatory or mitigatory matter was ineffectual, it making no difference under the circumstances of this case who actually strangled her, does not make inapplicable the rule that a statement containing exculpation is admissible in evidence without first establishing its voluntariness. Bruner v. People, supra, Walker v. People, 126 Colo. 135, 248 P.2d 287.
[20, 21] An involuntary inculpating admission "should be excluded by the court." Martinez v. People, 55 Colo. 51, 132 Pac. 64, Ann. Cas. 1914 C 559. But an admission is not rendered involuntary because it is "uncorroborated." [A]lways the finding of 'involuntary' rests upon something which, time, place, circumstances, or individual considered, would be equivalent to some measure of compulsion." Rogers v. People, 104 Colo. 594, 94 P.2d 453.
As has been shown, the admission was supported by other evidence in the case. An admission by the accused, when corroborated by other evidence, may be sufficient to sustain a conviction. King v. People, 7 Colo. 224, 3 Pac. 223. See Opper v. U.S., 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101.
Whatever approach is made to this assignment brings us to the view that it finds no support in the authorities. In trying to understand it and make it meaningful, we have probably unduly discussed the point.
The above facts and circumstances are also necessary to the determination of the last two assignments of error. It is contended that the evidence was wholly circumstantial; and hence, the trial court should not have permitted the jury to decide whether the death penalty should be imposed.
Under the facts and circumstances of this case it makes no difference whether Leick or Dukes actually choked Mrs. Leick to death. Cook v. People, 60 Colo. 263, 153 Pac. 214. Both were principals. Griffin v. People, 44 Colo. 533, 99 Pac. 321; Newton v. People, 96 Colo. 246, 41 P.2d 300. They planned her death; they participated in the execution of the plan; there is the statement of Leick, made to Flor, that Dukes actually killed Evelyn while he (Leick) was driving away from the apartment. In view of all the evidence in the case, the two signed statements, and the verbal statement made to Flor, sufficient direct evidence appears to sustain the death penalty. Moya v. People, 88 Colo. 139, 293 Pac. 335.
In view of the evidence as outlined above, was the District Attorney justified in saying to the jury in his closing argument:
"Yes, many stories are told here of the version of who did what. Only three people, ladies and gentlemen, knew what happened on December 1, 1953, and that was Leick, his associate, and Evelyn Leick, and her lips are sealed in death. We'll never know what happened, but it must have been like a bolt of lightning when she finally discovered that the man she loved was killing her. And this was even during the pleasure planned by the defendant Leick, and I say to you, ladies and gentlemen, that the fingers on the hands that throttled the life out of that twenty-six-year old girl are in this courtroom, the fingers on the hands of Leick he so placidly holds."
Leick contends that the evidence is devoid of any facts upon which such a statement could be made; consequently, the trial court committed error in refusing to instruct the jury to disregard the statement.
As we have said, it makes no difference in the accountability of Leick in this case whether he or Dukes, or both together, strangled Mrs. Leick. The facts disclosed by the photographs, some showing her body in the rear of the car with her head back of the driver's seat, and a photograph of her body showing injuries to her throat and legs, could produce the inference that Leick choked her while Dukes pinned her legs down. That Dukes handled her legs when they transferred her body to the back of the car strengthens this inference; that Leick was the driver, and her head was behind the driver's seat in the rear of the car after the transfer, makes probable the inference.
A clear statement of the rule is set forth in 23 C.J.S. 546, § 1093, as follows:
"It is within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and if he does not make any statement of fact not fairly deducible from the evidence his argument is not improper, although the inferences discussed are illogical and erroneous. Counsel may draw and state to the jury his own conclusions from the law and the testimony, provided he does not misstate the testimony, nor state facts as to which there is no testimony."
This disposes of the assignments of error upon which Leick depended for a reversal. In none is there error. A reading and study of 4057 folios of record reveal two points, one of which was vigorously argued before the trial court, and both of which, though not made the basis of asserted error, prompt comment from us. We believe this is in the best tradition of the law, that one subject to the death penalty shall have his case considered in all its important phases.
During the argument to the jury on the trial of the insanity issue the District Attorney read a partial transcript of the testimony. Objection was made to the use of this transcription on the ground that it gave undue emphasis to such evidence.
There may be some danger in this practice in that a jury may be induced to accept as bearing absolute accuracy and verity that testimony which has been transcribed by the court reporter. But that danger was not present in this case because, as presented to the jury, the District Attorney carefully refrained from stating that he was reading from the reporter's transcript. Richardson v. State, 21 Ala. App. 639, 111 So. 202.
The applicable rule is thus stated in Lakey v. State, 258 Ala. 116, 61 So.2d 117:
"Frankly, we do not perceive that ordinarily a defendant could be prejudiced by an attorney presenting to the jury with accuracy the testimony of a witness rather than trusting to the inaccuracy of human recollection. Usually, it could not promote justice if the triers of fact understand and remember with accuracy the evidence upon which the case must rest, whether their recollection be refreshed by a memorandum made by the attorney or by the correctly transcribed notes of the court reporter, the truth being what the parties seek after. The average solicitor with customary eloquence could emphasize the evidence to greater effect and influence the jury more to the State's advantage by garnishing the facts from his own recollection than by reading the cold transcription of the testimony."
When any part of a reporter's transcript is resorted to in argument, and such is made known to the jury, it would seem to be the better practice for the trial court to admonish the jury that the transcript is not an official certification of the truth of the testimony transcribed, but merely attests the accuracy of the transcription.
We next consider the record proper as it reveals that Leick entered a plea of not guilty by reason of insanity at the time of the alleged offense and since. The attempt to aver insanity subsequent to the alleged offense was ineffectual because not in compliance with the applicable statute. Mundy v. People, 105 Colo. 547, 100 P.2d 584.
C.R.S. '53, 39-8-6, quoted in pertinent part above, requires that a plea of insanity arising at some stage subsequent to the alleged offense be by verified petition, and that the petition be supported by the "affidavit of a physician who is a specialist in mental diseases stating as his opinion that the defendant has thus become and is insane. . .," and that the same be filed in the case. None of these requirements was followed in this case.
It is important to note that the statute further provides that the trial court may on its own motion, where it entertains a reasonable doubt of the defendant's sanity, impanel a jury to have determination thereof. Notwithstanding the failure to plead such insanity in accordance with the statute, we indulge the presumption that the trial court would have acted pursuant to its authority under the statute had it entertained at the time or thereafter a reasonable doubt of Leick's sanity.
An insane person may not be tried for a crime, nor may he be sentenced where his insanity occurs and continues after the return of a verdict, nor may he be executed where insanity occurs and continues after the sentence of death has been imposed. In any of these cases recovery removes the statutory impediment, and the regular course of the law takes up at the point where the insanity arose.
No proper plea of insanity relating at any time subsequent to the alleged offense having been lodged, and nothing appearing in the record which would require us to say that the trial court should have moved in the matter, we find regularity in these proceedings. Nothing said herein forecloses resorting to the remedy afforded by the insanity statute where insanity may exist at this time. A verified petition of present insanity, supported by the affidavit of a psychiatrist, filed in the case would initiate such proceeding.
A review of the whole record induces us to say that Leick received a fair trial. The judgment should be and is hereby affirmed, and it is ordered that the judgment be executed during the week of May 5, 1958.
MR. JUSTICE HOLLAND, MR. JUSTICE SUTTON and MR. JUSTICE DAY dissent.