People v. Galimanis, No. 84CA0809

• Docket Nº: No. 84CA0809
• Citation: 765 P.2d 644
• Case Date: September 22, 1988
• Court: Court of Appeals of Colorado

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765 P.2d 644 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Philip Leslie GALIMANIS, Defendant-Appellant. No. 84CA0809. Colorado Court of Appeals,
Div. I. Sept. 22, 1988.
Rehearing Denied Nov. 25, 1988.
Certiorari Pending Jan. 25, 1989.

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Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for defendant-appellant.

PIERCE, Judge.

Defendant, Philip Leslie Galimanis, appeals the trial court judgment entered upon jury verdicts finding him guilty of first degree murder, motor vehicle theft, and violent crime. We affirm in part and reverse in part.

The operative facts of this case are not in dispute. In April 1983, the victim was found dead on the floor of her apartment. She had been beaten, stabbed, and decapitated. Police discovered that the victim's car had been taken from the apartment complex and was still missing. Nearly twenty-nine hours later, police located the automobile and discovered defendant inside, asleep. When awakened, he was

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somewhat incoherent and disoriented. Defendant was then arrested and later charged.

In June 1983, defendant entered a plea of not guilty by reason of insanity. Pursuant to § 16-8-104, C.R.S. (1986 Repl. Vol. 8A), a sanity trial was held, and the jury found that defendant was sane. Subsequently, defendant was tried and convicted of the substantive crimes by a different jury.

I.

Defendant asserts that the trial court abused its discretion in allowing a substitution of psychiatrists by an ex parte order. We find no abuse.

Section 16-8-106(1), C.R.S. (1986 Repl. Vol. 8A) provides that:

"For good cause shown, upon motion of the prosecution or defendant, or upon the court's own motion, the court may order such further or other examination ... as is advisable under the circumstances."

The purpose behind this section is to cause the trial court, in the exercise of judicial discretion, to decide whether good cause has been shown or exists for the appointment of additional experts. Massey v. District Court, 180 Colo. 359, 506 P.2d 128 (1973).

Therefore, in order to effectuate the purpose behind this section, we conclude that it is a better practice to afford both parties the opportunity to present evidence regarding the good cause necessary for a substitution of experts before the substitution is made.

The record here shows that a hearing on the substitution issue was held approximately nine days after the substitution was made. Nevertheless, at the hearing, defendant was afforded ample opportunity to present evidence concerning the substitution issue. Also, nothing in the record indicates that he was prejudiced in any way by the ex parte substitution. Accordingly, the order did not affect his substantial rights. See Crim.P. 52(a).

We also reject defendant's assertion that the trial court abused its discretion in finding that good cause existed for the substitution of psychiatrists. The record shows that a conflict arose in the original psychiatrist's schedule, and, because of that conflict and the uncooperative behavior of the defendant, it became necessary to substitute psychiatrists. The record contains no evidence that the subsequent mental examiner was unqualified. Under these circumstances, we conclude that the trial court's finding of good cause was not an abuse of discretion. See Garza v. People, 200 Colo. 62, 612 P.2d 85 (1980).

Finally, we reject defendant's contention that the ex parte order denied him his constitutional right to counsel during the course of the examination. Defendant has no such right. See United States v. Cohen, 530 F.2d 43 (5th Cir.1976), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976).

II.

We also find unpersuasive defendant's contention that certain photographs and video tapes admitted into evidence were unduly prejudicial. Although we agree that the evidence reflects a shocking decapitation scene, the evidence was relevant and probative of the defendant's ability to deliberate. Our review of the record leads us to conclude that the evidence was not so unduly prejudicial as to outweigh its probative value. See People v. Avery, 736 P.2d 1233 (Colo.App.1986); see also CRE 403.

III.

Defendant also argues that the trial court erred in failing to exclude the entire testimony of the prosecution's psychiatrist at both the sanity trial and the trial on the merits. Defendant maintains that the psychiatrist improperly continued questioning him after he had expressed some reluctance to discuss particular topics, thereby asserting his Miranda rights. We disagree.

A court-ordered psychiatric examination does not implicate defendant's rights under the Fifth Amendment. United States v.

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Byers, 740 F.2d 1104 (D.C.Cir.1984). Although defendant has the privilege against self-incrimination during the course of the examination pursuant to § 16-8-106(2), C.R.S. (1986 Repl. Vol. 8A), no Miranda type warning is required. A lengthy personal interview is one of the few effective means of ascertaining sanity. See United States v. Albright, 388 F.2d 719 (4th Cir.1968). Indeed, it would be nearly impossible to evaluate a person's sanity without making inquiry. See Thornton v. Corcoran, 407 F.2d 695 (D.C.Cir.1969).

Even if we assume that defendant had the right to terminate the psychiatric examination, there is insufficient showing in the record that he exercised such a prerogative. He expressed some initial reluctance to discuss certain topics during the course of the examination. However, when the psychiatrist returned to the topic later in the examination, defendant described the events in detail. There is nothing in the record to show that his comments were coerced or involuntary in any way, or that his responses were the result of surreptitious mental invasion. See Early v. Tinsley, 286 F.2d 1 (10th Cir.1960), cert. denied, 365 U.S. 830, 81 S.Ct. 717, 5 L.Ed.2d 708 (1961).

Moreover, because the sanity issue is a separate proceeding before a jury that cannot consider the issue of guilt, there is no implication of a defendant's privilege against self-incrimination. Lewis v. Thulemeyer, 189 Colo. 139, 538 P.2d 441 (1975). Self-incrimination, by definition, applies to the admission of evidence to aid in establishing the guilt of the accused, not his sanity. Lewis v. Thulemeyer, supra. Moreover, there is no evidence here that defendant was assured that these statements would not be used against him. See Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1985). Consequently, there is no merit to defendant's argument that the psychiatrist's testimony...