People v. Lanari

Decision Date07 December 1989
Docket NumberNo. 87CA0581,87CA0581
Citation811 P.2d 399
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Brad LANARI, Defendant-Appellant. . IV
CourtColorado Court of Appeals

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Hope P. McGowan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

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

Opinion by Judge PLANK.

Defendant, Robert Lanari, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder, attempted first degree murder, and four counts of violent crime. We affirm.

Defendant and his wife separated in March 1986, causing defendant to become distraught. After the separation, the wife established an intimate relationship with a man who was also one of defendant's best friends.

One morning the following June, defendant's wife told him of her relationship with the friend. This revelation increased the defendant's distress, and he arranged to meet with the friend and his wife at the friend's house that evening. A short time after the meeting began, defendant drew a weapon and shot the friend and his wife. The friend's wound was fatal.

Defendant claims that certain actions taken at the meeting between his wife and the friend angered him and caused the shootings. And, consonant with this claim, defendant, prior to trial, endorsed a psychiatric witness to testify about, among other things, heat of passion manslaughter. However, the trial court granted the People's motion to strike the psychiatrist as a witness. In granting the motion, the trial court determined that heat of passion manslaughter can be readily understood by a jury and, consequently, that an expert witness is unnecessary and usurps the decision-making role of the jury.

I.

Defendant maintains the trial court erred in striking the witness. We disagree.

Expert testimony is not admissible to explain matters within the experience and common knowledge of jurors and the determination whether expert testimony will aid the jury in resolving an issue is a matter within the sound discretion of the trial court. People v. Beaver, 725 P.2d 96 (Colo.App.1986).

Here, the issue was whether defendant acted out of a sudden heat of passion which was caused by "serious and highly provoking acts" of wife and decedent that were sufficient to excite "an irresistible impulse in a reasonable person." See § 18-3-104, C.R.S. (1986 Repl.Vol. 8B). The trial court implicitly concluded that the factual and legal issues were of such a nature that the jury was competent to draw the correct conclusions.

We agree that the subject matter of irresistible impulse and heat of passion is not beyond the ken of the average layperson. Accordingly, the trial court did not abuse its discretion in excluding the psychiatrist from testifying. See People v. Lawson, 37 Colo.App. 442, 551 P.2d 206 (1976); McCormick on Evidence § 13 (E. Cleary 3d ed. 1972).

II.

As part of its pretrial discovery, the People interviewed the psychiatrist. During cross-examination and over defense counsel's objection, the People repeatedly impeached defendant with inconsistent statements that he had made to the psychiatrist. Defendant claims that since the psychiatrist did not testify, the use of such statements violated both his Sixth Amendment right to effective assistance of counsel and his attorney-client privilege. We disagree.

Under certain circumstances, exclusion of statements made to experts or their statements is justified under either the Sixth Amendment right to effective assistance of counsel, Hutchinson v. People, 742 P.2d 875 (Colo.1987), or the attorney-client privilege, Miller v. District Court, 737 P.2d 834 (Colo.1987).

Here, two factors militate in favor of the use of the statements for impeachment. First, the statements were provided to the People under Crim.P. 16 and, thereby, lost their confidential nature. Second, even if defendant's statements made to the psychiatrist were protected as part of his Sixth Amendment right to effective assistance of counsel, or as part of his attorney-client privilege, since his trial testimony contradicted those statements, those statements could be used to impeach him.

Generally, defendant's prior inconsistent statements, even if obtained in violation of the Constitution so as to be inadmissible in the prosecution's case-in-chief, are admissible to impeach a defendant's testimony. United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

We further hold that if, as here, the prosecution has discovered defendant's statements to experts under Crim.P. 16, use of such statements to impeach a defendant after he has testified does not violate the attorney-client privilege.

A defendant's right to testify does not encompass a right to commit perjury. Furthermore, the interest of the state in the truth seeking process outweighs defendant's constitutional privilege interest in protecting such statements. See People v. Cole, 195 Colo. 483, 584 P.2d 71 (1978).

Therefore, we conclude that the trial court did not err when it permitted cross-examination of defendant concerning his statements to the psychiatrist.

III.

Defendant next argues that the trial court erred in not submitting to the jury his tendered instructions that further defined the trial court's "heat of passion manslaughter" instruction. The language in the court's heat of passion manslaughter instruction was properly based on § 18-3-104(1)(c), C.R.S. (1986 Repl.Vol. 8B) and COLJI-Crim. No. 9:08 (1983), and is susceptible to general understanding by persons of common intelligence and need not be further defined. See People v. Deadmond, 683 P.2d 763 (Colo.1984). The instructions as a whole adequately informed the jury as to the offense. Accordingly, the trial court's decision not to further define the instruction was not erroneous. See People v. Deadmond, supra.

IV.

Defendant next argues that, since there was not a separate instruction for crime of violence, his conviction thereon must be set aside. We disagree.

Here, the verdict form required a finding concerning the use of a deadly weapon on the crime of violence charge.

Although we agree that it would have been better to set out the exact elements of the crime in a separate instruction, we determine that the instructions as a whole were adequate, see Brunner v. Horton, 702 P.2d 283 (Colo.App.1985), and required the jury to determine that defendant used a gun. We also note that it is uncontested that defendant brought a weapon to decedent's home, shot the friend three times, and shot his wife once.

The others issues raised by the defendant are without merit.

Judgment affirmed.

REED, J., concurs.

DUBOFSKY, J., dissents.

Judge DUBOFSKY dissenting.

I respectfully dissent.

I.

The trial court's decision to exclude the psychiatrist as an expert witness was an abuse of discretion.

A defendant has a fundamental right under the due process clauses of the United States and Colorado Constitutions to present witnesses and relevant evidence in defense of the charges against him. See Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). A court cannot prevent a defendant from establishing his innocence by arbitrarily excluding witnesses from testifying. See People v. Bueno, 626 P.2d 1167 (Colo.App.1981).

An expert witness' analysis of evidence is often as critical to a case as the evidence itself. A jury evaluates the evidence for the inferences and conclusions to be drawn from it, and an expert witness can be a critical aid in assisting the jury in this task. Miller v. District Court, 737 P.2d 834 (Colo.1987).

As the Miller court noted:

"[P]sychiatry has come to play a 'pivotal role' in criminal proceedings where the defendant's mental condition is in issue."

Indeed, as the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), stated:

"When the state has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense."

Here, the trial court's exclusion of the psychiatric witness erroneously precluded an important defense witness from providing expert testimony as to defendant's state of mind, regarding, but not limited to, the elements of heat of passion.

Both Becksted v. People, 133 Colo. 72, 292 P.2d 189 (1956) and People v. Diaz, 644 P.2d 71 (Colo.App.1981) stand for the proposition that, when a defendant may be convicted of manslaughter or murder, the refusal of the trial court to allow expert psychiatric testimony on the issue of defendant's state of mind is error. In my view, Becksted and Diaz are dispositive here. In Diaz, the court held that the psychiatric expert opinion was admissible to show defendant's state of mind at the time of the killing even though this was the ultimate question for the jury. See also Ferrin v. People, 164 Colo. 130, 433 P.2d 108 (1967); People v. Martinez, 43 Colo.App. 419, 608 P.2d 359 (1979).

Here, the trial court determined that a juror understands, without expert assistance, the state of mind involved in the charges brought against defendant. I cannot agree with such a sweeping conclusion.

CRE 702 states that an expert can testify if that testimony will aid the jury. An expert opinion should only be excluded if it is superfluous, a waste of a jury's time, and not helpful. Robertson v. McCloskey, 676 F.Supp. 351 (D.D.C.1988).

In determining that a psychiatrist could not assist jurors in evaluating heat of passion manslaughter concepts and in otherwise evaluating defendant's state of mind, the majority and trial...

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7 cases
  • Lanari v. People
    • United States
    • Colorado Supreme Court
    • March 10, 1992
    ...delivered the Opinion of the Court. We granted certiorari to review the judgment of the Colorado Court of Appeals in People v. Lanari, 811 P.2d 399 (Colo.App.1989), affirming jury verdicts convicting Robert Brad Lanari, the defendant, of offenses of first degree murder, 1 attempted first de......
  • People v. Young
    • United States
    • Colorado Court of Appeals
    • February 28, 1991
    ...of mind. People v. Diaz, 644 P.2d 71 (Colo.App.1981); see Becksted v. People, 133 Colo. 72, 292 P.2d 189 (1956); but see People v. Lanari, 811 P.2d 399 (Colo.App.1989) (cert. pending October 23, 1990). Furthermore, defendant is entitled to corroborate her testimony by presenting other compe......
  • People v. Ferrero
    • United States
    • Colorado Court of Appeals
    • December 30, 1993
    ...are susceptible to general understanding by persons of common intelligence and need not be further defined. See People v. Lanari, 811 P.2d 399 (Colo.App.1989), aff'd in part and rev'd in part on other grounds, 827 P.2d 495 The instructions as a whole adequately informed the jury as to the o......
  • People v. Lanari
    • United States
    • Colorado Court of Appeals
    • March 7, 1996
    ...holding, inter alia, that the trial court did not abuse its discretion in excluding the psychiatrist's testimony. See People v. Lanari, 811 P.2d 399 (Colo.App.1989). On certiorari review, the supreme court remanded the case for further proceedings on that issue because it found the record i......
  • Request a trial to view additional results
2 books & journal articles
  • The Introduction of Scientific Evidence in Criminal Cases
    • United States
    • Colorado Bar Association Colorado Lawyer No. 22-2, February 1993
    • Invalid date
    ...12/17/92). 13. 753 F.2d 1224 (3rd Cir. 1984). 14. 825 P.2d 1004 (Colo.App. 1991). 15. 827 P.2d 495 (Colo. 1992). 16. People v. Lanari, 811 P.2d 399 (Colo. App. 1989). 17. See Ferrin v. People, 422 P.2d 108 (Colo. 1967). 18. People v. Anderson, 637 P.2d 354 (Colo. 1981). 19. 837 P.2d 239 (Co......
  • The Use of Summary Expert Witness
    • United States
    • Colorado Bar Association Colorado Lawyer No. 33-5, May 2004
    • Invalid date
    ...C.R.E. 702, and reversing appeals court finding that trial court abused its discretion in admitting expert testimony); People v. Lanari, 811 P.2d 399, 402 (Colo. App. rev'd on other grounds, 827 P.2d 495 (expert's opinion will be excluded if "superfluous, a waste of the jury's time, and not......

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