Brisbin v. Schauer, 25009
| Citation | 492 P.2d 835,176 Colo. 550 |
| Decision Date | 27 December 1971 |
| Docket Number | No. 25009,25009 |
| Parties | Robert Lee BRISBIN, Petitioner-Appellant, v. Hilbert SCHAUER, Executive Director, Colorado State Department of Institutions, and Charles E. Meredith, Superintendent, Colorado State Hospital, Respondents-Appellees. |
| Court | Colorado Supreme Court |
William L. Lloyd, Pueblo, for petitioner-appellant.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty., Gen., Patricia W. Robb, Sp. Asst. Atty. Gen., Pueblo, for respondents-appellees.
Robert Lee Brisbin (hereinafter referred to as appellant) was charged with murder in the first degree to which he pleaded not guilty by reason of insanity. He was tried to the court and found not guilty by reason of insanity at the time of the alleged commission of the crime. He was committed to the Colorado State Hospital at Pueblo.
Six months later, in December, 1969, appellant filed a Petition for Writ of Habeas Corpus asking the Montezuma County District Court to determine if he was entitled to discharge or conditional release. The court issued the writ and a return was filed. In January, 1970, appellant filed a Motion for Change of Venue, alleging he could not receive a fair jury trial in Montezuma and neighboring counties, and that it would be more to the convenience of witnesses to hold the trial in Pueblo County. In addition to appellant's affidavit supporting his motion, sixteen affidavits from citizens of Montezuma County were affixed supporting his claims. The court denied the motion on the grounds that appellant was not entitled to a change of venue in a hearing on a Writ of Habeas Corpus. Following denial of appellant's Motion for Change of Venue, the appellant chose to have his case tried to the court.
Pursuant to a hearing on the writ, appellant was recommitted to the Colorado State Hospital. Appellant's Motion for New Trial was denied.
From these proceedings appellant appeals, contending that the trial judge erred in denying the motion. We agree that the reasoning underlying the ruling on the motion was incorrect. However, we find that appellant was not prejudiced by the error because he later elected to try his case to the court without a jury. Accordingly, we affirm the judgment of the trial court.
The trial court based its denial of appellant's Motion for Change of Venue on its belief that a change of venue was not available because the remedy sought arose pursuant to a Writ of Habeas Corpus. We do not agree with the trial court on this point. Where a jury trial is granted, the right to a fair and impartial jury is a constitutional right which can never be abrogated. Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571; U.S. Const., amends VI, XIV; Colo.Const., art II, §§ 16, 23. And if a community is prejudiced against a citizen or if other circumstances are likely to deny him a fair and impartial jury trial, then a change of venue must be granted. Groppi v....
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Marshall v. Kort
...action complained of took place. Evans v. District Court, 194 Colo. 299, 572 P.2d 811, 814 (1977). To the extent that Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971) may require a different result in criminal commitment cases, we overrule that ...
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People v. Pena-Rodriguez
...is granted, the right to a fair and impartial jury is a constitutional right which can never be abrogated." Brisbin v. Schauer, 176 Colo. 550, 552, 492 P.2d 835, 836 (1971), overruled on other grounds by Marshall v. Kort, 690 P.2d 219 (Colo.1984).¶ 110 The right to a jury free of racial bia......
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State v. Kahey
...v. Johnson, 318 N.W.2d 417 (Iowa 1982); 2 Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975). Contra, Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971), holding that the waiver of the jury rendered a venue question The constitutional standard of fairness requires that a defe......
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Wafai v. People
...sacred than that of trial by jury." See also Maes v. District Court, 180 Colo. 169, 175, 503 P.2d 621, 624 (1972). In Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971) (overruled on other grounds in Marshall v. Kort, 690 P.2d 219 (Colo.1984)), we relied on Groppi v. Wisconsin in statin......