Lewis v. People

• Decision Date: 19 April 1971
• Docket Number: No. 23822,23822
• Citation: 483 P.2d 949,174 Colo. 334
• Parties: Glenn W. LEWIS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 949

483 P.2d 949

174 Colo. 334

Glenn W. LEWIS, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23822.

Supreme Court of Colorado, En Banc.

April 19, 1971.

William Atha Mason, Rifle, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Special Asst. Atty. Gen., for defendant in error.

J. ROBERT MILLER, District Judge. ^*

The defendant, Glenn W. Lewis, was charged with the crime of theft by deception in violation of 1967 Perm.Supp., C.R.S.1963, 40--5--2(1)(b), in obtaining $120 from the First National Bank of Glenwood Springs, Colorado. The defendant pleaded not guilty and not guilty by reason of insanity. The first trial on the issue of the defendant's sanity was declared a mistrial on the grounds that the burden was incorrectly placed upon the defendant to prove himself insane, rather than upon the prosecution to prove his sanity. A second trial on defendant's sanity was held, at which the jury was instructed that the burden was on the prosecution to prove the defendant sane by a preponderance of the evidence. The jury found the defendant sane. A trial before a different jury was then held on the merits which found the defendant guilty.

Briefly stated, the facts brought forth at the trial on the merits of this case which go to establishing the defendant's guilt are these:

In July 1967, the defendant procured a blank check from an acquaintance, Mary Jean Jury, and without her knowledge or consent, made a check payable to himself in the amount of $300, and signed her name thereto. This check, drawn on the Mesa National Bank, was then used to establish an account in defendant's own name at the First National Bank of Glenwood Springs. Subsequently, the defendant cashed two checks, one for $20 at a department store and another for $100 directly with the First National Bank.

This formed the basis of the charge that the defendant, by deception, deprived the First National Bank of its property in violation of 1967 Perm.Supp., C.R.S.1963, 40--5--2(1)(b).

Defendant has divided his assignments of error between those pertaining to his insanity trial, and those concerning the trial on the merits.

I.

In the first area dealing with the insanity issue, the People have confessed error and we may deal with this in a summary manner. Basically, the error concerns the instruction to the jury that the People have the burden of proving the defendant sane by a preponderance of the evidence. The People have conceded that the jury was misinstructed on this point, since the burden is on the People to prove the defendant sane beyond any reasonable doubt, not by mere preponderance of the evidence. People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741. Therefore, it will be necessary to have a new trial on the issue of defendant's sanity.

However, defendant maintains that the entire decision should be reversed, and a new trial held on the merits as well. He argues that the error in the insanity trial permeates the entire cause, including the trial on the merits. We find little substance to this argument, for in Colorado there are two separate and distinct trials, utilizing two separate and distinct juries, whenever the plea of not guilty by reason of insanity is raised. C.R.S.1963, 39--8--3.

If the jury on the retrial should come to the conclusion that the defendant is insane, then commitment to the state hospital at Pueblo would be required. C.R.S.1963, 39--8--4. However, if a verdict of sanity would again be returned by the jury, then he would be in the precise position that he was in, in this case, facing a trial on the actual merits of the charge. Consequently, as the error committed in the insanity proceedings could not affect the proceeding on the merits, no justification would exist for reversal and retrial of both.

II.

Defendant's claims dealing with this second insanity trial are moot, since a new trial on the issue of his sanity has been ordered.

III.

As his first assignment of error to the merits, defendant urges that the trial court erred when it allowed the witness, Mary Jean Jury, to testify in view of a claimed common law marriage existing between the defendant and this witness, thereby raising the defense of privileged testimony. C.R.S.1963, 154--1--7.

An In camera hearing was held out of the presence of the jury as to whether defendant could invoke the claim of privilege so as to prevent Mary Jean Jury from testifying. Testimony was presented which supports the trial court's ruling that there was no marriage between these parties, and consequently, no privilege could be claimed. This factual finding by the trial court supported by competent evidence is binding upon us.

IV.

Defendant objected to the admission into evidence of the statements made by him to a part-time jailor. These statements were to the effect that on certain occasions while the jailor was engaged in conversation with other prisoners or otherwise preoccupied, the defendant stated to the jailor that he would be willing to plead guilty to a misdemeanor, or plead guilty if he were guaranteed a sentence not in excess of three years. Pointing to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the defendant contends that no warning was given to him of his right to remain silent or to counsel, and that therefore, such statements are improperly admitted into evidence. The Miranda warning is required only in those instances where there is investigatory activity being directed against the defendant by state agents. The reasoning in Miranda, supra, is that compulsion to confess, whether induced physically or mentally, vitiates any confession.

Here, the evidence shows that the defendant voluntarily and spontaneously made these statements to the jailor, who at the time, was engaged in an activity wholly unrelated to the defendant. Under these circumstances, if the defendant chooses to make such spontaneous declarations as these, nothing is present to bar the People from presenting them to a jury for their consideration. Goddard v. People, Colo., 474 P.2d 210; Washington v. People, Colo., 455 P.2d 656.

V.

Defendant also contends that the admission of the People's exhibits A, B, C and D was error. Briefly, exhibit A was the check of the witness Mary Jean Jury on her account in Mesa National Bank, made payable to the defendant in the amount of $300, which was used to open the defendant's account at the First National Bank. Exhibit B was a check executed by Mary Jean Jury ostensibly on a joint account with the defendant. Exhibit C was a countercheck for $20 made payable to a department store with the signature of...