Robbins v. People

• Decision Date: 28 March 1960
• Docket Number: No. 19117,19117
• Citation: 350 P.2d 818,142 Colo. 254
• Parties: Richard Douglas ROBBINS, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 818

350 P.2d 818

142 Colo. 254

Richard Douglas ROBBINS, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19117.

Supreme Court of Colorado, En Banc.

March 28, 1960.

Rehearing Denied April 18, 1960.

Zarlengo, Zarlengo & Seavy, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

Plaintiff in error, hereinafter referred to as defendant, was charged in the trial court of the crime of first degree murder. The jury which heard the issues framed by the information and the defendant's plea of not guilty, returned a verdict of guilty of murder in the first degree and fixed the penalty at life imprisonment. Judgment and sentence entered accordingly and the defendant seeks review by writ of error.

The incident out of which the case arises involves the killing of one Gregory Francis Warner. Pertinent facts which are not in dispute are as follows:

The defendant and the deceased Warner started out on the evening of May 18, 1958, to commit an armed robbery. They selected as their intended victim one Myers, a man 68 years of age whom they observed as a pedestrian on his way from work to his home at 1356 Lafayette Street in Denver. A short distance from this address the defendant and the deceased accosted Myers and informed him that 'this is a stickup'. One of the holdups, the deceased, stood in front of the victim, Myers, and placed a knife against his body. The other holdup, the defendant, stood behind the victim with a pistol at his back. Myers testified that the man with the knife * * * 'poked me a few times, but it didn't go * * * it didn't hurt me, but when he got up just about here, below the right breast, why, it stuck me, and I thought I'd better say something, and I said 'Oh, go on', raised up my hands.'

Myers testified that he then stood there for a 'second or two' when the defendant from behind struck him a blow on the head 'that made me slump forward a little bit, like that; and it was toward the left, in the rear toward the back of my head, where he hit me. And I done like that, and about two or three seconds, I heard the shot after that, two or three seconds. It didn't discharge just at the moment he hit me * * *'. The bullet fired from the gun in the hands of the defendant struck his accomplice who was in front of Myers, causing his death.

Defendant's story, told to the police, was that he had become fearful that his accomplice, a young man 16 years of age, would stab Mr. Myers with the knife and that he sought to withdraw from the attempted robbery in order to save the life of Myers. With this purpose in mind he struck the blow on the latter's head with the hand in which the gun was held; that the gun was accidentally discharged and the bullet killed his partner in the attempted robbery who was standing in front of the victim.

The information was filed on May 23, 1958. A plea of not guilty was entered June 3, 1958. The trial of the case began October 21, 1958, and the jury was accepted and sworn to try the issues on October 22, 1958.

On the morning of October 23rd, and before any evidence was taken, the following took place (inter alia) outside the presence of the jury: (Mr. Zarlengo representing the defendant.)

'Mr. Anthony F. Zarlengo: Judge, I just got a call a few minutes ago from my son, who states that he got a call from a Mrs. Roberts, a registered nurse, who claims that she knows the defendant, that they lived in the same apartment and that he has been having epileptic fits; and I don't know what the scope of this is, it being the first time we have heard about it. She just called in this morning.

'We would like to have the court appoint a doctor to examine the boy.

'The Court: To see whether or not he is subject to epileptic fits?

'Mr. Zarlengo: To see whether or not he is subject to fits and whether or not he is capable of forming any intent to rob, and whether he is susceptible to domination by someone else, or susceptible to fears of some sort. I think, in view of the seriousness of the case, that we should have the benefit of that medical testimony. Now, I haven't interviewed the nurse, but she just called in this morning to give the information. I don't mean to delay the trial at all, Judge.

* * *

* * *

'Mr. Zarlengo: Well, don't you think we ought to have some preliminary examination by the doctor to see whether or not it warrants a change of plea? I don't know, Judge; I am just not informed, until I get the benefit of some expert advice. I thought possibly we could get her down here this morning, any one Your Honor wants to appoint, and at least get a preliminary opinion from the doctor, I could then be advised on whether to stand on the present plea or whether to consider any other pleas. I think that before making any change of plea, we should have the benefit of that advice.

* * *

* * *

'The Court: The thing that I wondering is that if he has been out there in the jail since May, if he had anything like that, it would seem to me he would have had them during the time in jail.'

The Court, following the conference in chambers, ordered a recess, appointed a psychiatrist to examine the defendant and permitted a further more extensive examination of defendant at the Colorado General Hospital. Following a report by the appointed expert indicating that the defendant was not subject to epilepsy, and was not insane, the court ordered the trial to continue, and denied a motion by counsel for the defendant to order a mistrial and permit the entry of an additional plea of not guilty by reason of insanity.

At the conclusion of all the evidence counsel for defendant moved for a directed verdict of not guilty upon all offenses included in this information except the crime of involuntary manslaughter. This motion was denied.

Counsel for defendant argues as grounds for reversal in this court that:

1. The trial court should have ordered a mistrial, and the right to plead not guilty by reason of insanity, after the jury was selected and sworn to try the case.

2. The trial court committed prejudicial error in instructing the jury on 'flight' for the reason that it was necessary in the instant case.

3. The trial court erred in refusing defendant's request for a directed verdict as to all issues except that of involuntary manslaughter.

Questions To Be Determined.

First: Where four and one half months after a plea of not guilty to a charge of murder has been entered, a jury selected and sworn to try the case and counsel for the defendant then receives a 'phone call advising him that defendant may be subject to epilepsy, and thereupon requests the court to order a mistrial and to permit defendant to enter a plea of 'not guilty by reason of insanity'; is the refusal of the trial court to grant such requests an abuse of discretion where the record discloses that the trial court carefully investigated the matter in the course of which competent medical advice was sought and received following an examination of the defendant?

The question is answered in the negative. The plea of not guilty by reason of insanity is controlled by C.R.S. '53, 39-8-1(1) (Cum.Supp.1957), and is as follows:

'If one of the defenses of the defendant is insanity, it must be pleaded at the same time with other pleas, unless it is to be the sole plea to the charge. It must be pleaded orally, either by defendant or by his counsel, in the form, 'not guilty by reason of insanity at the time of the alleged commission of the crime.' A defendant who does not thus plead not guilty by reason of insanity shall not be permitted to rely on insanity as a defense to any accusation of crime; provided, however, that evidence of mental condition may be offered in a proper case as bearing upon the capacity of the accused to form the specific intent essential to constitute a crime.'

In Inglis v. People, 92 Colo. 518, 22 P.2d 1109, and Mundy v. People, 105 Colo. 547, 100 P.2d 584, it was held that one desiring to rely upon insanity as a defense is bound to comply with statutory requirements concerning the entry of such a plea, and that a statute requiring that a special plea as to insanity be entered to be followed by a period of observation, does not deny a defendant any constitutional rights.

Whether a...