People v. Mack, 81SA104
| Decision Date | 30 November 1981 |
| Docket Number | No. 81SA104,81SA104 |
| Citation | 638 P.2d 257 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Samuel J. MACK, Defendant-Appellant. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Mary E. Ricketson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Michael Heher, Deputy State Public Defender, Denver, for defendant-appellant.
The defendant, Samuel Joe Mack (defendant) appeals his conviction based on jury verdicts of guilty to one count of first degree sexual assault, section 18-3-402(1)(b), C.R.S.1973 (1976 Supp.), 1 and two counts of felony menacing, section 18-3-206, C.R.S.1973. 2 His claims relate to his competency to proceed to trial and various rulings made by the court during the sanity trial and the trial on the merits. 3 He first asserts that he was denied due process of law by the trial court's refusal to consider a second motion for a competency determination following a prior judicial determination of competency. He also challenges the court's refusal to admit hospital records during the sanity trial and the sufficiency of evidence to support the jury's finding of sanity. With regard to his trial on the merits, the defendant claims that the court erroneously denied his motion to suppress out-of-court and in-court identifications, improperly admitted testimony of his refusal to sign a Miranda advisement form, and incorrectly instructed the jury on the culpable mental state for first degree sexual assault. Finding no reversible error, we affirm the judgment of conviction.
On the afternoon of October 30, 1976, Robert S. and Pamela N. were hitchhiking on interstate highway 25 outside of Pueblo, Colorado. They were offered and accepted a ride by a man who introduced himself as "Sam Mack." They saw the words "Galloping Gourmet" imprinted on the back of his station wagon and, once inside the vehicle, they heard the man identify himself several times on his CB radio as the "Galloping Gourmet." The man drove them to a Sambo's Restaurant where they ate a meal. Upon leaving the restaurant they noticed the vehicle had a flat tire. After the tire was fixed at a service station, the man then told Robert and Pamela that he would take them to a truck stop where they could catch another ride. He drove them back to the highway, turned off an exit onto a dirt road, and stopped his car in a tunnel-like area that apparently was an underpass to the highway. Pointing a knife at Robert's throat, he threatened to kill him unless Pamela disrobed. When she complied, he held the knife to her throat and ordered Robert to undress. The man told them to lie down on the road and then ordered Pamela to perform oral sex on Robert. Afterwards he beat Robert and forced him to lie down behind the rear wheels of the car. At knifepoint he forced Pamela back into the car. When he started the car, Robert ran back toward the highway and Pamela was pushed out onto the road.
Approximately one hour after the assault, Robert and Pamela were shown a photographic array of three subjects compiled by Detective Fringer and Sergeant Wallingford of the Pueblo County Sheriff's Department. Each photo card displayed two views of the same individual and all written material on the cards was obscured from the victims' view. Sergeant Wallingford, believing the victims' physical descriptions matched the defendant, whom he knew, included the defendant's photograph in the array. The sergeant also was aware that "Galloping Gourmet" was the defendant's CB call name. The victims were shown the photos outside of each other's presence, and were asked if they could identify any of them. All of the photographs were displayed in the same manner. Both Robert and Pamela separately selected the defendant's photograph as that of their assailant.
The defendant was arrested at his Pueblo home that evening. On the following day October 31, Detective Fringer advised the defendant of his Miranda 4 rights. The defendant refused to sign the advisement form or indicate his understanding of the rights described therein. On November 1 the defendant requested to see the detective, was again advised of his rights, signed the advisement form, and made a statement. He admitted that he gave Robert and Pamela a ride to Sambo's Restaurant for a meal and then took them back to the highway north of Pueblo but denied any criminal acts.
On January 13, 1977, the defendant's attorney moved for a determination of competency pursuant to section 16-8-110, C.R.S.1973 . The court ordered the defendant to be transferred to the Colorado State Hospital for observation. After receiving a report from the state hospital, the court on January 31 made a preliminary finding of competency and granted the prosecution and defense ten days to request a hearing. The order noted the preliminary determination would become final if no hearing was requested within the ten day period. No request for a hearing was made, and the defendant entered pleas of not guilty by reason of insanity. On March 29 the defendant's attorney withdrew, and on April 29 the defendant's new attorney filed a second motion for determination of competency, alleging a material deterioration in the defendant's mental state since the court's preliminary determination. 5 The court denied the motion, ruling that it was premature in view of the pending insanity plea. 6
At the sanity trial the prosecutor rested initially on the presumption of sanity. Section 16-8-105(2), C.R.S.1973 . The defendant presented testimony of lay witnesses regarding his bizarre actions in jail while awaiting trial on the pending charges. He also offered into evidence the records of the Colorado State Hospital pertaining to his insanity adjudication in 1970 for forgery. The court sustained the prosecutor's objection to the records on grounds of relevancy. However, the defendant was permitted to elicit testimony from the custodian of the records about the defendant's 1970 commitment and his status as an out-patient at the time of the offenses in issue. Also, the defendant's prior insanity adjudication, commitment and release were fully explored later in the trial during defense counsel's cross-examination of the prosecution's expert witnesses.
After the defendant rested the prosecutor elicited rebuttal testimony from two psychiatrists and a psychologist. Although the prosecution's experts diagnosed the defendant as suffering from a severe antisocial personality disorder, they concluded that he was legally sane under the Colorado definition of insanity. Dr. Anne Courtwright, a psychiatrist, testified that she saw no indication that the defendant was mentally impaired, or that he could not distinguish right from wrong. In her opinion, one who is diagnosed as an antisocial personality, rather than as a psychotic, has chosen to live by a code of ethics different from the socially accepted norm. Such a person, in her opinion, is legally sane because he acts from choice and not from illness.
Another psychiatrist, Dr. Lawrence Austin, noted the defendant had a history of not controlling his behavior outside a structured institution but found no evidence of psychosis. He testified that an individual may display behavior like the defendant's throughout a lifetime and never be insane within the statutory definition of insanity. 7
Dr. Allen Simmons, a clinical psychologist, also tested and interviewed the defendant. He found no evidence of an inability to distinguish right from wrong or to refrain from doing the wrong. In his opinion a person who could not distinguish right from wrong would have been institutionalized as unable to function at all. Although the defendant had a history of poor self-control, the doctor concluded that he did have the ability to control his actions and was legally sane.
The jury found the defendant sane. Neither the defense nor the prosecution raised again the issue of the defendant's competency to proceed.
Prior to trial on the merits the defendant moved to suppress his November 1 statement to Detective Fringer as well as the pretrial photographic identification by Robert and Pamela. At the outset of the suppression hearing he withdrew the motion to suppress his statement. 8 During the suppression hearing on the photographic identifications Detective Fringer described the circumstances surrounding the compilation of the photographic array and further described the effort made to include in the array subjects with similar physical and facial characteristics, including hair color, facial hair and age. The court denied the defendant's motion to suppress the photographic identifications.
At the trial on the sexual assault and felony menacing charges, Robert and Pamela each identified the defendant as their assailant. The court admitted evidence of the pre-trial identifications. Detective Fringer testified without objection that the defendant refused to sign the Miranda advisement form on October 31. When the prosecutor offered into evidence the form itself the defendant objected and the court sustained the objection. The defendant's custodial statement on November 1 thereafter was received into evidence without objection.
In preparing instructions the trial court specifically asked defense counsel if there were any objections to a specific intent instruction for the crimes of first degree sexual assault and felony menacing. Defense counsel agreed to the proposed instruction on specific intent and the trial court thereafter instructed the jury as follows:
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...competency evaluation performed by Dr. Morall. Based on these facts, we find no error and reject White's contentions. See People v. Mack, 638 P.2d 257, 263 (Colo.1981) ("[D]ue process or the defendant's right to effective assistance of counsel [do not] require[ ] the court to grant a reques......
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