Becksted v. People

Citation133 Colo. 72,292 P.2d 189
Decision Date09 January 1956
Docket NumberNo. 17641,17641
PartiesDouglas Paul BECKSTED, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtSupreme Court of Colorado

Leslie A. Gifford, Aurora, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

Plaintiff in error, to whom we will hereinafter refer as defendant, was accused of first degree murder by information filed in the district court of Adams county. He entered pleas of not guilty, and not guilty by reason of insanity at the time of the alleged commission of the crime.

Pursuant to the provisions of C.R.S. 1953, 39-8-3, which since has been repealed, defendant first was tried on the issue raised by the plea of not guilty. This trial resulted in a verdict of guilty of first degree murder with imposition of the death penalty. Thereafter, the issues raised by the plea of not guilty by reason of insanity were tried to the same jury which returned a verdict that defendant was sane. Motions for a new trial were heard and overruled, and judgment was entered directing that defendant be put to death in the gas chamber at the Colorado state penitentiary. Defendant, seeking reversal of the judgment, brings the case to this Court for review by writ of error.

Some ten assignments of error are argued by counsel for defendant as being sufficient to require a reversal of the judgment. However, due to the fact that retrial of the case will be under different procedures as prescribed by chapter 118, Session Laws of Colorado 1955, we find it unnecessary to consider all of the assignments of error on which counsel for defendant relies; accordingly, the statement of facts will be limited to those bearing upon the questions determined by this opinion.

Upon the first trial, and after the people had rested their case, counsel for defendant called Dr. Macdonald, a duly qualified expert and one of the psychiatrists at Colorado General Hospital under whose observation defendant had come during his commitment to that institution as required by law following the entry of the plea of insanity. During his examination the following statements appear in the record:

'Q. During those consultations, did you have occasion to examine him physically and mentally? A. Yes.

'Mr. Byrne: I object to this line of testimony, Your Honor, on the basis that it is not a part of this trial. It is not in issue here. And I would like to have the counsel state what his purpose of calling this witness is and what he hopes to show?

'The court: That would have to be done. He would have to make an offer of proof outside the Jury before we go into this matter any further. The jurors will be excused for about five minutes until we determine what this is about. (Whereupon, the following proceedings were had out of the presence of the Jury and in the presence of the defendant:)

'Mr. Sarvas: If Your Honor please, we realize that under Colorado law in order to settle the question of insanity that a separate trial is required.

'The Court: That is true.

'Mr. Sarvas: Both my associate and myself realize as far as the issue of insanity is concerned that that is not a proper issue at this trial. However, our purpose and the offer of proof that we intend to prove or the thing we do desire to show by the doctor and can be construed as our offer of proof in this matter, is the fact that this defendant has been thoroughly examined by Dr. Macdonald and has made statements to him that can be construed actually as admissions against interest and has made explanations and various other statements that will show the Jury along the same line as the signed statements of the prosecution as to the actual facts that happened.

'Now, if the prosecution is allowed to and has been allowed to present statements to the Jury as to what this defendant has done and what he has admitted, we feel that we as the defense are entitled to present the same type of statements in his defense. Now, the doctor is not in this trial going to make any statement be improper, Jury, because that would be improper, as to whether or not the defendant is sane or insane. We fully recognize the fact that that is the subject matter and basis of a subsequent action. But Dr. McDonald is able to testify before this Jury as to the physical condition and the mental condition of this defendant prior to and immediately after the alleged commission of the shooting.

'The Court: So far as the mental condition of this witness at the time of examination at this particular period wouldn't be admitted.

* * *

* * *

'Mr. Sarvas: There is one other further point, Your Honor, that is an important matter, and that is as a result of this doctor's examination of the defendant and in view of the seriousness of the charge that is here, the doctor is able to make a statement or statements based upon his observation as to the ability of this defendant to form an intent as far as this particular action is concerned.

'The Court: That is not here. He will not be permitted to testify to that. Intent is a matter of legal intent. Of course, the doctor can testify as to the examinations that he has made and the findings at the next trial as far as his sanity is concerned, sane or insane; but at this particular hearing the only thing we have before the Jury and before the Court is whether or not he is guilty of the offense charged in this Information. After we determine that and we don't know, of course, what that determination will be, but if it happened to be a guilty finding as far as the Jury is concerned, then we will go into the other plea of insanity.

'Mr. Sarvas: We are not attempting to * * * (Interpose) 'The Court: As far as his physical condition, that can be brought out at the other trial or he can testify himself. He is here.

'Mr. Sarvas: How about the statements he has made to the doctor during the course of his examination?

'The Court: They wouldn't be admitted at this particular point because they would be hearsay. * * *

'Mr. Sarvas: We will ask for the record to show that we are objecting to the ruling at this time and that Dr. McDonald be excused until that other issue comes up.'

The foregoing events give rise to the first question hereinafter considered.

After the verdict of guilty of first degree murder with imposition of the death penalty had been returned, the trial court permitted the jury to separate and return on the following day to consider the evidence to be offered on the issue of insanity. Testimony of experts was received and the parties rested. During consideration of the instructions to be given the jury, the question arose as to whether the proceeding was civil or criminal in character. In the course of the discussions in chambers between court and counsel the following took place:

'The Court: The one question to be determined at this particular state of the proceeding, is whether or not this man is sane or insane at the time of the commission of the act. That in itself is not criminal, it is a civil matter. Consequently, the motion will be overruled. [The motion referred to was by defendant's attorney and sought an order to 'stop the proceedings' because of asserted irregularity.]

'Mr. Sarvas: Therefore, just one more short statement, if that is the case that there is a transition from criminal of a civil action, we feel that the Jury should have been sworn again and gone through all the usual formality which was not done in this case.

* * *

* * *

'The Court: There isn't any doubt in my mind but what if the Jury had been discharged, then I would agree with your philosophy. The Jury never has been discharged as far as the Court is concerned. They were sworn, of course, to try the other matter, that is true.

'Mr. Sarvas: I believe the record will show the fact that they were allowed to disperse overnight and go to their homes.

'The Court: Nothing wrong with that. We can let jurors go home in civil matters, unless it is they are asking for the supreme penalty. This contention has been acknowledged by the District Attorneys themselves, so we will see what the District Attorney says about it. The defense attorney has objected to proceeding with this particular jury because of the fact that it is in the nature of a civil matter and the jurors should have been sworn again and should have proceeded anew even though the jury never was discharged.

* * *

* * *

'The Court: We will have to dismiss as to this and then call them back or call a new jury.

'Mr. Sarvas: We are asking for a new jury.

'The Court: I don't know that I will grant it. We will dismiss the proceeding so far and have them back at another date and then swear them in. We will tell them to be here at nine o'clock a. m. on the fourteenth. Let's call the jury in here and we will dispose of it.'

Thereupon the court excused the jurors and directed them to return on October 14th (a delay of five days) to be sworn to try the issue of sanity. An order was entered 'vacating' all proceedings of October 9th on that issue. October 14, 1955, the jurors returned and counsel for defendant objected to trial of the sanity issue before them. His objection, and the court's ruling thereon, are, inter alia, as follows:

'Mr. Sarvas: We object to this Jury going on ahead on this case. We feel it is improper, prejudicial, and absolutely out of order. They entered a verdict a week ago as to the extreme penalty and since that time they have been free to talk to other people, to read the newspapers, to listen to the radio, television, all the reports, and everything that had gone one. And even if we were to assume that they had free and open minds at that time, they certainly cannot have now. As far as this Defendant is concerned, it is very unfair. It is very prejudicial and I cannot find language strong enough...

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