Hammil v. People

• Decision Date: 13 March 1961
• Docket Number: No. 19377,19377
• Citation: 145 Colo. 577,361 P.2d 117
• Parties: Walter J. HAMMIL, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 117

361 P.2d 117

145 Colo. 577

Walter J. HAMMIL, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19377.

Supreme Court of Colorado, En Banc.

March 13, 1961.

As Modified on Denial of Rehearing May 1, 1961.

Walter F. Scherer, Harold A. MacArthur, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., for defendant in error.

DOYLE, Justice.

Plaintiff in error, who will be here referred to as defendant, was convicted of first degree murder and sentenced to death. It will be sufficient for the purpose of this review to merely outline the essential facts surrounding the happenings which furnish the basis for the charge and it will be unnecessary to detail all of the shocking and sordid facts which appear in the record.

On August 27, 1958, Lester Gordon Brown, Jr., an eleven year old boy, went to the Denver Coliseum where a circus was appearing. While watching the animals at the circus he talked to the defendant and was told by the latter to come back that evening if he wanted to ride one of the elephants. The boy returned that evening in company with another boy and was taken inside the building by the defendant. After having some conversation with Lester Brown, defendant and the boy went for a walk. Some distance from the circus area the defendant made improper advances to the boy and the latter, according to the confession of the defendant, protested and asked to go home. Defendant admitted that he was afraid that the boy would inform his parents and that on a sudden impulse he started to choke Brown. As a result of this, Brown fell to the ground and defendant left the scene and went to a neighboring restaurant where he had dinner. He then returned to the barn and after a short time went back to the place where the body of the boy was. Finding that he was dead, he carried the body to a nearby sand pile and buried it. The next day defendant was arrested. He confessed all of the details and led the officers to the shallow grave.

The only issue relating to sufficiency of the evidence to establish the charge of murder has to do with the element of premeditation. A question is raised concerning the length of time essential to existence of such element. Apart from this one point dealing with the merits, the assigned errors pertain to the alleged insanity of the accused.

There were two trials. The first was limited to defendant's plea of not guilty by reason of insanity. Following a verdict of the jury that defendant was sane at the time of the commission of the offense, trial was had on the charge. During the course of the latter trial, evidence of the defendant's mental condition was introduced, but was limited to the issue whether defendant had sufficient capacity to deliberate and as an aid to the jury in finding the degree and in determining punishment. Ingles v. People, 92 Colo. 518, 22 P.2d 1109. There was testimony at both trials bearing on the question whether the defendant was sane at the time of the commission of the offense. The prosecution called Dr. James A. Galvin, Medical Director of the Colorado Psychopathic Hospital, and also Dr. John MacDonald, a member of the staff of Colorado General Hospital. At the second trial the defendant called Dr. Doris Gilbert, Clinical Psychologist, who had conducted certain psychological tests on defendant. Dr. Jack Hilton was called on behalf of the defendant. He testified that in his opinion the defendant was insane at the time of the alleged commission of the offense. The jury verdict at the insanity trial found that defendant was sane. At the trial on the merits the jury again rejected the contention of defendant that he was insane.

The present review applies to both the sanity trial and the trial on the charge contained in the information. On the sanity issue, error is assigned in connection with the refusal of the trial court to allow defendant to cross examine Dr. James A. Galvin regarding the use by the latter of a certain psychological report prepared by Dr. Doris C. Gilbert (who was not in court). The alleged error is based upon the contention of the defendant that the witness Galvin was shown to have read the report and, according to the defendant, to have used it in a limited way for the purpose of furnishing suggestions incident to his own investigation. The court's ruling sustaining the objection of the prosecution and striking all of the cross examination having to do with the contents of this report, was, it is argued, prejudicial error.

In connection with the trial of the case on the merits error is assigned:

1. To the court's ruling on the admissibility of various photographs and exhibits which, it is alleged, were prejudicial to the defendant and lacking in probative value and deprived the defendant of a fair trial.

2. To refusal of the court to allow defendant to cross examine Dr. John MacDonald as to the practical impossibility, from a medical standpoint, of premeditating 'as quickly as one thought follows another'.

3. To instructing the jury that deliberation as elsewhere defined does not require any particular time; that it may occur 'as quickly as one thought follows another'; that even assuming the propriety of such instruction in proper circumstances, it was not applicable to the facts presented in the case at bar.

4. To refusal of the court to instruct in accordance with the defendant's tendered Instruction No. 1, which was substantially similar to the court's Instruction No. 11. Both sought to define 'wilfully, deliberately and with premeditation.' The court's instruction included the statement objected to by defendant that:

'It matters not how short a time interval, if it were sufficient for one thought to follow another.'

The defendant's instruction merely stated

'No particular time need intervene between the formation of the intent to kill and the act of killing.'

Thus Assignment No. 4 points up the identical issue raised in Assignment 3.

I.

The alleged error emphasized most strongly is the ruling of the trial court restricting the cross examination of Dr. James Galvin preventing defendant from inquiring about the report of Dr. Gilbert, the psychologist. Thus, the question is whether it was error to restrict the cross examination of this psychiatrist relating to the contents of the report of a staff psychologist. It appears from the evidence that Dr. Gilbert conducted a series of psychology tests with a view to obtaining information as to the intelligence level and emotional makeup of the defendant. Dr. Galvin denied that he utilized this report in forming his opinion, and maintained that his opinion was entirely the result of his own observations. Although Dr. Galvin consulted with Dr. Gilbert, it is inferrable from the record that he refrained from consulting it until he had forwarded his opinion to the court. This report, of course, was a part of the defendant's chart and was available to Dr. Galvin and, in fact, was consulted by him after he had concluded that defendant was sane.

The proposed cross examination of Dr. Galvin consisted of questions designed to bring out the contents of the psychologist's report, which disclosed defendant to have low grade of mentality and character, and contained various statements which could have led the jury to believe that the defendant's low mental level and antisocial attitude precluded his responsibility for acts or conduct proscribed by the law. From defendant's offer of proof, the object of the questions which he proposed to propound to Dr. Galvin was to direct to the jury's attention the contents of the report--the conclusions of the psychologist. The Gilbert report had no tendency whatever to discredit Dr. Galvin's statement that he relied only on his own observations, since nothing which appeared in the report, and which could have been brought out in the cross examination, would have had a tendency to establish Dr. Galvin's opinion as based on hearsay. Since Galvin testified positively and emphatically that he was not influenced by the report, a further extensive examination of Galvin as to the contents of the report could have no tendency to undermine his statement that he did not rely thereon in forming his own judgment, and would serve only to place its hearsay contents before the jury in such manner as to give its contents testimonial status.

In view of this circumstance, it seems clear that defendant failed to bring himself within the terms of Ingles v. People, 90 Colo. 51, 6 P.2d 455, 459, where it was held that a physician's report in a criminal insanity hearing, based in part on information furnished by others, is itself incompetent as being derived from hearsay evidence. It was there said:

'* * * [You] cannot express an opinion based, in whole or in part, upon information obtained from third persons who have not testified to the facts.'

The proposed questions in the present case had no tendency to establish that Dr. Galvin's opinion was based on other than his own observations.

It is further urged by the defendant that Archina v. People, 135 Colo. 8, 307 P.2d 1083, is pertinent. It was there held that refusal to allow cross examination of a doctor (called by the people) as to the effect on his opinion of certain reports and documents which had been submitted to him by the District Attorney, constituted error. The documents there submitted to the physician included a confession of the defendant, various statements of witnesses in the case pertaining to the circumstances surrounding the perpetration of the offense, and a digest of the evidence prepared by the deputy district attorney. The trial court had ruled that cross examination as to the extent, if any, that these documents entered into the opinion of the physician was not proper cross examination. It was held that since the questioning proposed to establish that the doctor's opinion was...