Summary
In People v. Jones, 677 P.2d 383 (Colo.App. 1983), we adopted Standard 12-2.31, which prevents criminal defendants from asserting speedy trial while confined in a hospital or mental institution.
Summary of this case from People v. WartenaOpinion
No. 81CA0266
Decided September 8, 1983. Rehearing Denied October 20, 1983. Certiorari Granted February 14, 1984 (83SC401 83SC414).
Appeal from the District Court of Mesa County Honorable James J. Carter, Judge
J.D. MacFarlane, Attorney General, Charles B. Howe, Deputy Attorney General, Joel W. Cantrick, Special Assistant Attorney General, Maureen Phelan, Assistant Attorney General, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Terri L. Brake, Chief Appellate State Public Defender, for defendant-appellant.
Division III.
Defendant, Nicholas James Jones, appeals his jury conviction of first degree murder and aggravated robbery. We reverse.
I.
Defendant first contends the trial court erred when it refused to dismiss those charges filed against him on grounds defendant had been denied his right to a speedy trial. We disagree.
Defendant pled not guilty. Thereafter, because of suggestions by Jones counsel, the court ordered that he be examined as to his mental competency to stand trial. Defendant asserts that the time during which trial proceedings were stayed pending the determination of his mental competency to stand trial should be included in computing the six-month period of time allowed for speedy trial. Crim. P. 48(b); Section 18-1-405, C.R.S. 1973 (1978 Repl. Vol. 8); see § 16-8-110(1)(a), C.R.S. 1973. We disagree.
This is an issue of first impression in this state. We adopt the rule set forth in the ABA, Standards on Criminal Justice § 12-2.31, and followed by several federal courts. When a defendant is confined to a mental institution or hospital for observation or examination prior to a determination of mental competency, he cannot complain of a denial of his constitutional right to a speedy trial because of the delay occasioned by that confinement. Johnson v. United States, 333 F.2d 371 (10th Cir. 1964); United States v. Davis, 365 F.2d 251 (6th Cir. 1966); see also United States v. Cartano, 420 F.2d 362 (1st Cir. 1970); State v. Farmer, 126 Ariz. 569, 617 P.2d 521 (1980).
Therefore, the trial court was correct in not including in the speedy trial period, the time during which defendant was confined for a competency determination.
Defendant also contends a second period of time, totaling eight days, between the date the psychiatric reports were filed until the defendant's next court appearance, cannot be charged against him in a speedy trial computation because the court's calendar prevented an earlier appearance. The record does not support this contention.
II.
Next, defendant contends the trial court erred when it denied his motion to suppress statements made to police officers. He challenges the trial court's ruling on grounds the Miranda warnings given were insufficient. We agree, and therefore, reverse.
In People v. Spring, 671 P.2d 965 (Colo.App. 1983), this court held that police had a duty to inform Spring that he was a suspect in a homicide and to readvise him of his Miranda rights before questioning him about a murder which had occurred sometime prior to a stolen weapons transaction about which authorities originally questioned him. Because the officers had failed to so advise the defendant, his waiver of his Miranda rights was ruled to be invalid, and the refusal of the trial court to suppress his responses to the questioning was held to be reversible error.
Here, defendant was questioned by New Hampshire police after reporting the theft of his automobile. The questions asked by the policemen concerned the registration number and vehicle identification number of the automobile. According to New Hampshire authorities, Miranda warnings were given prior to this questioning as a matter of course. After double checking the information given them by defendant in response to their questions, the investigators had reason to believe defendant had participated in a homicide which occurred in Mesa County, Colorado. Before questioning defendant regarding the Colorado homicide, however, no further advisements were given.
Hence, in accordance with Spring, because defendant was not made aware that he was a suspect in a homicide and properly advised concerning that offense, the People's argument that he waived his right to an attorney or to remain silent must fail.
III.
Defendant also asserts the trial court erred when it refused to instruct the jury on second degree murder. We agree, and instruct the court that upon retrial such an instruction should be given the jury.
When even a scintilla of evidence, regardless of how unreasonable or how improbable, tends to substantiate a defendant's theory of defense or that of a lesser included offense, an instruction on that theory must be given. People v. Maes, 43 Colo. App. 365, 609 P.2d 1105 (1979). Although the evidence in this case indicates that there was little validity to defendant's contentions which would reduce his degree of culpability in the homicide, the court, nevertheless, had a duty to instruct the jury on this lesser offense.
IV.
Defendant complains that the trial court erred when it refused his motion to sequester jury members during voir dire in this capital case. The People argue sequestration was not necessary here because the prosecution neither sought the death penalty nor did it seek to qualify the jury to impose the death penalty.
People ex rel. Faulk v. District Court, 667 P.2d 1384 (Colo. 22, 1983), is dispositive of this issue, and during the new trial potential jury members should be sequestered. See Crim. P. 24(f).
The remaining contentions of error are without merit.
The judgment is reversed and the cause is remanded for new trial.
JUDGE KELLY concurs.
JUDGE VAN CISE concurs in part and dissents in part.