Penney v. People

• Decision Date: 27 March 1961
• Docket Number: No. 19320,19320
• Citation: 360 P.2d 671,146 Colo. 95
• Parties: David Alexander PENNEY and James Robert Marshall, Plaintiffs in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 671

360 P.2d 671

146 Colo. 95

David Alexander PENNEY and James Robert Marshall, Plaintiffs in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19320.

Supreme Court of Colorado, En Banc.

March 27, 1961.

Frank E. Evans, Pueblo, for David Alexander Penney.

Richard D. Robb, Pueblo, for James Robert Marshall.

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

DAY, Justice.

David Alexander Penney, nineteen years old, and James Robert Marshall, twenty years old at the time of their joint trial on October 29, 1959, in the district court of Pueblo County, were convicted of murder in the first degree by a jury which fixed punishment for Penney at life imprisonment and for Marshall at death. To review the judgments entered upon the jury verdicts, after motions for new trial were argued and denied, defendants are here jointly on writ of error.

Penney was convicted as an accessory before the fact to the homicide actually perpetrated by Marshall. The attorney general representing the People, with the candor required of him when the situation warrants, has admitted the conviction of Penney was erroneous and has admitted that at the conclusion of the evidence presented by the People, the court should have directed a verdict of not guilty in favor of Penney. At most, the evidence would support only a charge of accessory during and after the fact, a misdemeanor, not a felony. The evidence offered to support the charge of murder was circumstantial and entirely consistent with the innocence of Penney, all of which the attorney general admits. Accordingly the judgment of conviction against Penney is reversed and the cause remanded with directions to vacate the judgment and sentence and to discharge the defendant Penney.

Marshall admitted the homicide and gave a voluntary detailed confession. His only defense was that he was 'Not guilty by reason of insanity at the time of the perpetration of the offense and since.' Our examination of the propriety of the conviction of Marshall and our resulting determination of his principal assignment of error make it unnecessary to recite the evidence of the crime or to decide the other questions raised by the argument.

The one assignment which we consider and determine as entitling the defendant to a new trial is the first one asserted by him, as follows: 1. That the defendant James Robert Marshall did not receive a fair and impartial trial as the Judge early in the proceedings formed an opinion about his insanity plea and in all rulings and actions thereafter the Judge demonstrated a bias and prejudice against the defendant Marshall and his plea, resulting in the denial of due process of law.'

The trial judge, in a number of unusual preliminary proceedings, all of which were initiated on the judge's own motion, indicated that he was personally concerned that Marshall's insanity plea might be successful and that he had personally determined him to be sane.

The first of these ex parte hearings was conducted after the court receiver a letter from the Colorado State Hospital over the signature of J. L. Rosenbloom, M.D., Assistant Superintendent, advising the court 'that the defendant Marshall is now legally insane and was legally insane at the time of the alleged commission of the crime.' The letter further advised the court that Dr. B. G. Carson, Staff Psychiatrist at the Colorado State Hospital, would be able to testify with respect to the sanity of defendant Marshall. Upon receipt of this letter, the court conducted a private examination of the psychiatrists, the exact nature of which is unknown because no record was made of the proceedings and neither the district attorney, defense counsel nor the defendant was present. But as an aftermath of the conference with the psychiatrists the court ordered the parties--the defendant and his counsel and the district attorney--to appear August 28, 1959.

This particular hearing, in itself, was unusual. The court on its own motion set the hearing. It had not been requested on motion of either party, and the nature of the hearing was unknown to counsel when they appeared at the court's behest. Thereupon the court announced that he had called the hearing for the sole purpose of obtaining the consent of defendant's counsel for further medical investigation since he (the judge) was not satisfied with the report from the staff of the Colorado State Hospital. The order setting this hearing and the fact it was held does not appear in the minutes of the court or the court record, but the reporter's transcript reveals that the reason for the proceeding was announced by the court as follows:

'The court, as a matter of record, always requires the Colorado State Hospital, or the commission, to furnish the court a copy of their mental and physical examination. The court read the examination and the conclusion. The court also permitted counsel for Mr. Marshall, Mr. Robb, to read this report and I permitted the District Attorney to read this report for the reason that the court could not reconcile in its own mind the conclusion, or findings by the commission that the defendant was insane in view of the examinations that were conducted.

'Now, I have talked to Dr. Rosenbloom and I have talked to Dr. Carson, and they have attempted to explain this matter to me. I presume that counsel have talked with them, likewise. So the matter rests there. Now, the court--I mean if you are satisfied that this is the finding of the commission and willing to go to trial on this matter on this question of insanity, the court will permit it, but if either of you feel that this possibly is not the--rather, this matter desires further investigation, the court will also permit you to pursue that matter. I want this defendant to be fully protected and I want him to be accorded every benefit that the letter gives him. That is the only comment that I have to make.' (Emphasis supplied.)

Neither counsel for the defendant nor the district attorney, at this invitation of the court, asked for the appointment of any other psychiatrist. In fact, the district attorney said, 'I have nothing to say, Your Honor. If the defendant's counsel feel that they want to go to trial, we have no objection. In fact we would be happy if the court is in position to set it down for trial right now.' Whereupon the court determined that the issue of insanity should be tried separately and should be tried first and issued the following orders:

'The Court: I feel--in view of the finding of the commission here, I think there should be only one--but I think there should be a trial on this issue of insanity first. * * * I believe it is the prerogative of the Court to set the trial on the issue of insanity, only. Of course--assuming the Court finds him to be sane, you can bring in evidence at the second trial as to capacity to form a specific intent, I am aware of that fact, Mr. Robb, but I do think that in view of the finding of this commission, that the matter of insanity should be tried first.'

The above proceediongs appeared to settle the matter, but on September 14, when the parties appeared to obtain a trial date for Marshall alone on the issue of his insanity, the court, without any request from either party and without any apparent reason, announced:

'The Court has previously discussed setting aside some time for the trial of this case. Due to the nature of the case, and possibly due to the fact that the case will be of considerable duration, the Court has decided that the cases will be tried at one time; that is, the issue of sanity to be tried with the case in chief.'

This abrupt change of attitude by the court was strenuously objected to by counsel for Marshall who pointed out that when the court refused the two defendants separate trials, then the issue of insanity, affecting only Marshall and not involving Penney, would entitle Marshall to a separate trial, at least on that one issue. The court overruled the objection and set the trial date as of March 6, 1959.

With the trial date set, there was nothing more before the court. However, ten days after the trial setting, on September 24, 1959, in an ex parte proceeding, the court entered an order appointment another psychiatrist. This surprise motion, a little more than twelve days before the date set for trial, was a distinct departure from the position previously taken by the district attorney, who almost two months previously had told the court he had no desire to have additional psychiatrists appointed and was to go to trial on the issue of insanity. What motivated the district attorney at the late date is unknown, but his petition indicates he made the request to satisfy the court, for he stated in his petition as follows:

'That the Court has indicated that the People of the State of Colorado could employ the services of a Psychiatrist for the purpose of a further examination of the defendant, James Robert Marshall.

'Wherefore, Petitioner prays that an order issue from this Court granting the People of the State of Colorado the right to secure the service of a Psychiatrist for the purpose of examining the defendant, James Robert Marshall and the costs incurred be paid by the County.' (Emphasis supplied.)

The impropriety of this action was challenged and motion filed by defense counsel to vacate the order, which was denied. In Smith v. People, 8 Colo. 457, 8 P. 920, 921, we find this appropriate comment:

'* * * It is a general rule of law that the prisoner, in cases of felony, must be present at every step in the proceedings, or the proceedings will be invalid. So important is this right that, except in cases of misdemeanor, it cannot be waived by counsel. * * *' A reading of the record of the trial reveals many instances of abrupt and inconsistent rulings of the court. It is conceded that the judge is given discretion in the conduct of...