Jones v. People

• Decision Date: 20 March 1961
• Docket Number: No. 19251,19251
• Citation: 146 Colo. 40,360 P.2d 686
• Parties: La Vern Jackie JONES, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 686

360 P.2d 686

146 Colo. 40

La Vern Jackie JONES, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19251.

Supreme Court of Colorado, En Banc.

March 20, 1961.

Rehearing Denied April 10, 1961.

Rexford L. Mitchell, Rocky Ford, Armand L. Forbes, Fowler, 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.

FRANTZ, Justice.

Jones was charged with the crime of murder, tried and found guilty by a jury which fixed the penalty at death. Sentence was imposed upon this verdict, and Jones seeks reversal by writ of error.

To informatively determine his assignments of error requires a recitation of the events actuating the formal charge laid against him, and certain proceedings which took place in the course of the trial.

On February 10, 1959 at about 9 o'clock in the evening Jones went to the garage in La Junta where he was employed. He and a number of other persons were invited to attend a showing of some new machinery. Refreshments were served during the evening, and Jones partook thereof. The evidence is in dispute concerning the amount of liquor consumed by Jones, but there is agreement that he was not intoxicated.

Jones left the garage about 2 o'clock in the morning of February 11th and drove home, where he remained for a short time. He then drove his car to the El Otero Hotel, formerly the Kit Carson Hotel, in La Junta. It appears from the evidence that he went to the hotel for the purpose of getting money. To effectuate his purpose he removed a ball peen hammer from the trunk of his car.

When he arrived at the hotel he found two persons there: Richard Houchens, a sixteen-year-old bellboy, and David Milton Powell, the desk clerk, both of whom worked nights. Jones had known Powell for some time prior to the morning in question and the two engaged in conversation.

The bellboy was permitted to sleep on a lounge in the hotel lobby when not required to perform services, and during the conversation between Jones and Powell he fell asleep.

After the bellboy started his slumber, Jones pulled the hammer out of his coat pocket and hit Powell on the head with it, causing him to fall off the stool and land on the floor. The handle of the hammer broke, and as Powell attempted to get up, Jones picket up a pipe wrench about eighteen inches in length lying near the desk at which Powell worked and struck Powell several times about the head with it.

The bellboy awakened, but that caused him to awaken is not clear from the evidence. He believed he was roused by the noise made by Jones in removing money from the cash register and cash drawer. At any rate, the first sounds he remembered hearing after awakening were the sounds of change rattling as the money was being removed, and the heavy breathing of Powell.

Fully awakened, the bellboy sensed a condition gone awry and one which he believed was fraught with danger to himself. Thus infected with fear he remained on the lounge feigning sleep whenever Jones looked toward him. After Jones had gathered some $398 at the reception desk, he left the hotel lobby.

The bellboy then arose and, looking behind the desk, saw Powell lying there bleeding. He immediately summoned the owner of the hotel who lived on the second floor. The owner came downstairs and found the office in a state of disarray, with the chair on which Powell had been seated on its side and blood-stained. Approaching Powell, he observed that his left ear was almost torn off; his skull was laid open exposing his brain; his nose so badly mashed as not to be recognizable; his jaw hanging in such manner as to indicate it was broken; and his head having a hole in the back through which blood flowed.

Since Powell was still breathing, the owner asked him several times who had beaten him. Powell's efforts to answer were failures. It was then about 3:30 in the morning, and shortly thereafter Powell was taken by ambulance to the hospital where he died before the doctor arrived to attend him. According to the doctor, death had resulted from injuries to the brain caused by the impact of a blunt instrument such as a ball peen hammer or pipe wrench.

Investigation at the scene revealed what appeared to be spots of blood on the door knob where Jones made his exit. Other spots were found nearby. The police went to Jones' home and arrested him. A pair of shoes under his bed had snow on them and some stains which were later found to be dried blood. An examination of his car brought to light what appeared to be blood stains on the steering wheel and the interior. Similar spots were discovered on the sidewalks, back porch and in the kitchen sink of Jones' home.

Jones was placed in jail at about 4:20 that morning. In the afternoon he was questioned, and at about 4 o'clock he signed a statement, the pertinent part of which is as follows:

'* * * Dave was sitting on a stool behind the main desk and I was standing in the space between the cash register stand and the desk. While we were talking I pulled the hammer out of my coat pocket with my right hand and hit Dave on the head with it. He stumbled and fell off of the stool. I believe the hammer broke at that time because I just hit him once with the hammer. It was a small ball peen hammer. He fell to the floor and made one attempt to get up. I went around the counter behind the desk and noticed a pipe wrench under the counter. It was a wrench about 18 inches long. I picked it up and hit him on the head again about two more times when he made an attempt to get up. I do not remember that he said anything. I then went to the cash drawer behind the desk and took the money out of it. I then went to the cash register and punched a button and it opened and I took the money out of it. I then again went behind the desk and took the money that was in a little bowl under the counter. I put the money in my pocket and left the hotel by the same door I had come in.'

At the time Jones made this statement he was unaware that Powell was dead. The police did not apprise him of the fact that Powell had died within about one-half hour after the blows had been inflicted upon him.

In the confession Jones advised the police where he had cached the money taken from the hotel. By reason of this disclosure the money was found and recovered. It had been placed in containers owned by Jones in a box in the alley to the rear of his home.

To the charge of murder Jones pled not guilty and not guilty by reason of insanity. After the entry of these pleas the court ordered him taken to the state hospital for observation. In due time the result of this examination was reported to the court, it being the opinion of the psychiatrists that he was presently sane and 'legally sane at the time of the alleged commission of the crime.'

Thereafter the court granted Jones' motion for an examination by Dr. Tepley of Denver, and over objection, a motion by the district attorney that Jones be examined by Dr. Schapire of the Colorado Psychopathic Hospital in Denver. Dr. Tepley made his report to the court, advising that Jones was at the time and 'is now legally sane,' 'was able to distinguish right from wrong,' but that he needed additional information to determine 'whether he was able to refrain from doing wrong once the impulse had arisen in him or been given to him.'

Prior to trial Jones withdrew his plea of of not guilty by reason of insanity. The cause proceeded to trial on the charge of murder and the plea thereto of not guilty.

In the course of the trial the court admitted in evidence a photograph of Powell taken sometime before this occurrence, a photograph of Jones taken shortly after his arrest, and Powell's blood-stained shirt, all over the objections of Jones. The shirt had been removed from Powell's body at the mortuary. Tests revealed that the blood on the shirt was the same type as other blood samples appearing on other articles introduced in evidence having blood stains.

After the trial had commenced, attorneys for Jones learned that Dr. Tepley had sustained personal injuries in an accident and would be unavailable as a witness, although he had assured them previously that he would be present during the trial. Apparently such injuries were sustained shortly after the trial started and were complicated by fever and other illness resulting therefrom. As a protective measure, attorneys for Jones obtained a subpoena directing Dr. Tepley to appear as a witness in the case.

Counsel then suggested that the case be continued in order to give them time to obtain the services of another psychiatrist or that it be continued to a date when Dr. Tepley could testify personally or by deposition. Affidavits of attending physicians were later filed showing the incapacity of Dr. Tepley.

By affidavit Dr. Tepley advised the court that, if he could testify, he would give it as his opinion that Jones 'was not able to form an intent to murder; and that the robbery could not have been attempted by Jones but for the overpowering effect of excessive alcohol superimposed upon the schizoid type of mind possessed by said Jones.'

The court, upon the advice of the district attorney, concluded that the two psychiatrists who had observed and examined Jones on behalf of the State would in great measure testify to the same effect as would Dr. Tepley if the latter were in a condition to testify, and refused a continuance for any of the purposes proposed.

These two doctors were called by Jones, and they both testified that defendant was legally sane at the time of the offense. Both agreed that he had personality disorders which were probably aggravated by the influence of alcohol at the time of the crime. Dr. Schapire said that Jones' judgment was severely impaired at the time of the crime and that the circumstances surrounding the act bore 'the earmarks of a sudden impulsive sort of action rather than real...