Garrison v. People, 20491

• Decision Date: 28 January 1963
• Docket Number: No. 20491,20491
• Parties: Sylvester Lee GARRISON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 401

378 P.2d 401

151 Colo. 388

Sylvester Lee GARRISON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 20491.

Supreme Court of Colorado, En Banc.

Jan. 28, 1963.

Mellman, Mellman & Thorn, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., Denver, for defendant in error.

McWILLIAMS, Justice.

Sylvester Lee Garrison was charged by direct information with murder of one Mort Freelander on April 26, 1958, in Denver. On arraignment he pled 'not guilty' and 'not guilty by reason of insanity at the time of the alleged commission of the crime and since.'

On November 27, 1959 a jury returned two verdicts, one finding Garrison sane at the time of the alleged commission of the crime, and the second adjudging him to be guilty of first degree murder and fixing the penalty at death.

Motion for new trial was filed in apt time, argued and then denied, and on January 29, 1960 formal judgment and sentence entered. By writ of error this judgment was affirmed by this court. See, Garrison v. People, 147 Colo. 385, 364 P.2d 197.

On January 5, 1962, a few days before he was about to be executed pursuant to this jdugment and sentence, Garrison filed a petition in the trial court, generally alleging that he was then insane and had become insane since the date when judgment and sentence was imposed. Attached to his petition was an affidavit by 'a physician who is a specialist in mental diseases', stating that in the doctor's opinion Garrison 'is insane at the present time.'

The trial court stayed Garrison's execution, appointed several psychiatrists to examine him, and eventually entered an order that the issue as to whether Garrison had become insane subsequent to the imposition of judgment and sentence be determined by a jury.

On April 18, 1962 a jury returned a verdict finding that 'Garrison has not become insane since judgment and sentence and is now sane.' Motion for new trial was duly filed, but denied. Thereupon the trial court entered a further judgment and sentence directing that Garrison be returned to the State Penitentiary, 'there to be executed during the week of October 15, 1962 in accordance with the law.' This execution date has been stayed, and by the present writ of error Garrison seeks reversal of this judgment and sentence.

C.R.S. '53, 39-8-6 provides, inter alia, that a person sentenced to death who 'becomes and remains insane' after judgment but, of necessity, before the sentence is carried out, shall not be executed 'until his recovery from the insanity.' This same statute empowers the trial court upon proper showing to impanel a jury to determine 'whether the defendant has thus become and then is insane.' Said statute also spells out the procedures to be followed in such proceeding, and finally lays down the applicable test of insanity.

As was noted, supra, the trial court, on the showing made by counsel for Garrison, ordered that a jury determine whether Garison had become insane since the imposition of sentence. The jury determined that Garrison had not become insane and in fact was still sane. Garrison now contends that reversible error was committed in his so-called 'second trial'.

Garrison assigns as error the fact that the trial court excluded all evidence as to his mental condition as such existed prior to January 29, 1960, that being the date of the entry of the judgment and sentence to death in the original trial. Garrison concedes that under the applicable statute the only issue to be resolved in a proceeding under the statute involved is whether, after judgment and sentence, he has become and remains insane. However, according to Garrison, the trial court misinterpreted Leick v. People, 140 Colo. 564, 345 P.2d 1054 to the end that it held that under this opinion evidence as to his mental condition as of any time prior to the date of his sentence was inadmissible, solely because it antedated the imposition of judgment and sentence. Garrison urges that evidence of his mental condition prior to January 29, 1960 is admissible, not so much for the purpose of proving his mental condition as of that time, but more for the purpose of throwing light on his true mental condition as of the time of his 'second trial.'

Specifically, Garrison advised the trial court that under his theory of the case his present mental illness was a hereditary matter and in this regard sought to bring before the jury his entire family history, including the fact that he had brothers and sisters who were insane. Further, he theorized that his mental condition as of the time of his 'second trial' was not an 'over night thing', but rather the logical culmination of a long, drawn-out process of mental deterioration. In support thereof he disclosed a head injury occurring in 1950, and sought to establish that in 1953 he was not only the subject of a juducial inquiry as to his mental condition in an lunacy proceeding in the County Court of Denver, but...