People v. Brisbin

• Decision Date: 23 August 1971
• Docket Number: No. 24329,24329
• Citation: 175 Colo. 428,488 P.2d 63
• Parties: The PEOPLE of the State of Colorado, Plaintiff in Error, v. Robert Lee BRISBIN, Defendant in Error.
• Court: Colorado Supreme Court

Page 63

488 P.2d 63

175 Colo. 428

The PEOPLE of the State of Colorado, Plaintiff in Error, v. Robert Lee BRISBIN, Defendant in Error.

No. 24329.

Supreme Court of Colorado, En Banc.

Aug. 23, 1971.

Wade A. Dillon, Dist. Atty., Cortez, for plaintiff in error.

Robert C. Duthie, Durango, for defendant in error.

DAY, Justice.

Review is sought by the People challenging as error an order of the District Court of Montezuma County, Colorado, granting defendant Robert Lee Brisbin's motion to waive trial by jury of the issue of insanity without first obtaining the consent of the district attorney as provided by the then applicable statute. 1965 Perm.Supp. C.R.S. 1963, 39--8--3(1). The trial court in trying the issue found the defendant insane and ordered him confined to the State Hospital at Pueblo.

The record before us reflects that the defendant had been charged with first degree murder, and on arraignment entered pleas of not guilty and not guilty by reason of insanity at the time of the alleged commission of the above crime. The motion to waive a jury trial was first made by the defendant after approximately two-thirds of the voir dire of the initial fourteen jurors had been conducted. The district attorney interposed an objection and the defendant's motion was at that juncture overruled. The motion was renewed, however, following the selection of the jury and prior to its being empanelled or sworn. The court then granted it, holding in part as follows:

'The court has, of course, read the decision of the Supreme Court in Munsell v. People, 122 Colo. 420 (222 P.2d 615), as well as the decision of the Supreme Court in People v. Juhan (People ex rel. Juhan v. District Court for County of Jefferson, 165 Colo. 253), 439 P.2d 741.

The court has, also, read with interest, the case of The People v. Spegal, an Illinois case reported in (5 Ill.2d 211, 125 N.E.2d 468) 51 A.L.R.2d 1337 and the annotation following it. The Court has also considered the standards of the American Bar Association--Minimum Standards for Criminal Justice Relating to Trial by Jury. This standard 1.2, mentions the waiver of jury trial in any criminal case. The Court feels that the provisions of section 39--8--3 requiring concert of agreement of the defendant, the Court, and the District Attorney is unconstitutional and the Motion is granted * * *.'

The theory of the defendant was that since he had the right to a trial by jury, he could waive such right alone; and the People, as an adverse party, could not interfere with his decision in the matter. Therefore, argued the defendant, the procedure outlined in the statute is unconstitutional because it requires the written consent of the district attorney and the agreement of the court in order to waive trial by jury. The People argue, on the other hand, that the legislature has prescribed reasonable procedures to be used in the trial of an insanity issue; consequently, it is argued, that the procedure requiring the consent of the defendant, the district attorney and the court likewise should be upheld. We agree with the position of the People and disapprove the action of the trial court.

Although Crim.P. 23(a) appears to favor the position of the defendant, we point out that this case involves a special statutory proceeding and is within exception of Crim.P. 54(b)(2).

When the trial court ruled in reliance of the standards of criminal justice, it overlooked that the standard does not grant the defendant an absolute right to waive a jury trial. Thus, Colorado is not out of tune with the standards and we have approved other statutes requiring that in a capital case a degree of murder and the penalty shall only be determined by a jury. Graham v. People, 134 Colo. 290, 302 P.2d 737 (1956).

In another vein, the issue of whether a defendant may waive a jury trial under any circumstances was before this court previously. Munsell v. People, 122 Colo. 420, 222 P.2d 615 (1950). In Munsell this court recognized the existence of statutes requiring a jury to fix the punishment in first degree murder cases, and therefore excluded such crime in holding that the defendant has the right to waive a trial by jury:

'Under our constitutional provisions, we hold that a defendant may waive his right to a trial by jury, and on a plea of not guilty be tried by the court, and, if found guilty, a valid sentence may be pronounced thereon.

'We are cognizant of a statutory provision which requires a jury to impose sentence in first degree murder cases, and nothing herein should be construed as countenancing the waiver of a jury where the charge is murder of the first degree.'

The United States Supreme Court has likewise held that there is no federally recognized right to a criminal trial before a judge sitting alone, but the defendant may in some instances waive his right to a trial by jury. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). Also, Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1943); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).

The People further...