Young v. People

Decision Date13 September 1971
Docket NumberNo. 22725,22725
Citation488 P.2d 567,175 Colo. 461
PartiesJohn Major YOUNG, Jr., a/k/a Frankie Saunders, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Rollie R. Rogers, Colo. State Public Defender, Denver, Brian J. Mullett, Colorado Springs, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecker, Asst. Atty. Gen., Denver, for defendant in error.

LEE, Justice.

John Major Young, Jr., also known as Frankie Saunders, was convicted in the District Court of El Paso County of first degree murder and sentenced to death.

The homicide arose out of an attempted robbery of a filling station in Colorado Springs, perpetrated by Young and two confederates, Nathan Whitmore and Joseph Weldon Mitchell. Each was charged in separate informations with first degree murder.

Mitchell was convicted in a separate trial and sentenced to life imprisonment. His conviction was affirmed in Mitchell v. People, Colo., 476 P.2d 1000. The summary of facts as reported in that case reflects the evidence presented concerning the criminal transaction and need not be repeated here.

As in Mitchell, Whitmore again was a witness for the People. He testified here essentially to the same matters and to the incriminating statement made by Mitchell to him within seconds of the homicide: 'I asked (Mitchell) what happened and he told me that Frankie (Young) had shot a man.'

We observe, as shown by the record, that Whitmore never came to trial on the murder charge. The court, upon motion of the district attorney, entered an order of Nolle prosequi. Whitmore was permitted to plead Nolo contendere to an unrelated misdemeanor charge and was sentenced to a jail term of two years. We are not here concerned with the disposition of Whitmore's case but only with the validity of Young's conviction.

Young entered a not guilty plea and not guilty by reason of insanity at the time of the alleged commission of the offense. He was tried first on the insanity issue. The jury found Young to be sane. He was thereafter tried on the merits and the jury returned its verdict of guilty, fixing the penalty at death.

I. THE INSANITY TRIAL

Young contends the court committed error in instructing the jury that the burden of proof was upon the People to prove sanity by a mere preponderance of the evidence, whereas the true burden in criminal cases required proof of sanity beyond a reasonable doubt. The attorney general confesses error in this regard and we agree. The trial court was following the dictates of 1965 Perm.Supp., C.R.S. 1963, 39--8--1(3) and did not have the benefit of the holding of this Court in People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741, in which the statute was declared unconstitutional. The verdict of sanity having been rendered upon an incorrect instruction concerning the burden of proof must be set aside and a new sanity trial held.

Young contends that the entire case should be reversed because of the insanity trial error. This has been answered in Lewis v. People, Colo., 483 P.2d 949. We there ruled that when a separate sanity trial has been held, which results in an erroneous verdict requiring a new sanity trial, it is not necessary to also grant a new trial on the merits where there is no prejudicial error in the trial of the substantive charge.

II. THE TRIAL ON THE MERITS

We discuss the following main points relied upon by Young for reversal of the judgment of conviction. We find no prejudicial error and therefore affirm.

1. Young contends the jury was unfairly and illegally weighted in favor of the death panalty. During the selection of the jury, the court sustained the district attorney's challenges for cause as to twenty veniremen, each of whom answered the following question in the negative: 'Is there any set of circumstances or conceivable set of circumstances under which you could bring back the death penalty?' Young claims the court's ruling violated the rule announced in Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. We disagree. In Witherspoon the United States Supreme Court stated:

'The issue before us is a narrow one. it does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. * * *

'* * * Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.'

For further analyses of Witherspoon, supra, see Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433; Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221.

Here, the transcript of the record of the voir dire examination reflects that no challenges for cause were sustained simply because the venireman had a general objection to or conscientious or religious scruple against the death penalty. Each of the twenty was excused for cause because of his unqualified declaration that under no circumstances could he impose the death sentence. In such circumstances, the juror could not perform his duty to consider whether a defendant who was found guilty of murder in the first degree should be punished by death or by life imprisonment. We do not consider Witherspoon, supra, to be inconsistent with the law of this state as first announced in Gallegos v. People, 116 Colo. 129, 179 P.2d 272, and reaffirmed in Padilla v. People, 171 Colo. 521, 470 P.2d 846. A venireman who unqualifiedly announces that if selected to serve on a jury he cannot or will not perform his lawful duty as a juror is properly challenged for cause.

It cannot fairly be said in this case that the jury was a 'tribunal organized to return a verdict of death' the proscription of which was spelled out in Witherspoon, supra.

2. Witness Charles Ballard testified for the People to statements volunteered to him by Young during the early morning hours following the murder. Young was living in the Ballard residence at that time, and when he returned to the Ballard home between 3 and 4 in the morning he awakened Ballard and talked with him. He told Ballard that he had tried to pull a robbery, that he had some difficulty, and that he had shot a man. During the district attorney's examination of this witness, the witness repeated the statement--'He said he shot a man'--a total of seven times. The defendant objected twice to the repetitious nature of the answers. He argues that the district attorney designed his questioning so that Ballard would repeat the incriminating admission as he did. The record does not indicate such a purpose. It is apparent that the witness was nervous, inexperienced, and having trouble responding to the questions asked by the district attorney who was attempting to bring out the entire conversation during which the admission was made. We find no abuse by the trial court in its rulings on this matter, nor can we say that the jury was unfairly prejudiced against Young as a result of this testimony.

3. It is next contended that prejudicial error was committed in admitting into evidence Young's statement to the police in which he confessed his participation in the killing. The principal argument is that Young did not have the mental capacity to make a voluntary confession and that it was obtained in violation of his constitutional rights and was therefore inadmissible.

Young's trial commenced June 6, 1966. He seriously contends that although this was prior to the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, which was announced June 13, 1966, the principles of Miranda should have been made applicable to his case. Young's statement was given on September 14, 1965. It is clear that the principles announced in Miranda do not apply retrospectively, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, and that the determination of admissibility of Pre-Miranda statements is governed by the traditional voluntariness test of consideration of the 'totality of circumstances.' Jordan v. People, 161 Colo. 54, 419 P.2d 656; Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433.

The court conducted an In camera hearing prior to admitting the confession into evidence as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205. The record shows that Young was arrested on September 7, 1965, in Topeka, Kansas, on suspicion of burglary. The next day, before he was questioned, he was warned by the Kansas authorities of his right to an attorney, of his right to remain silent, and that anything he said could be used against him in court. The initial interrogation lasted one-half hour. He was again interrogated on the same day about eht burglary and was similarly advised of his rights. On September 9, he was formally charged with burglary in the Kansas court. On September 13, Colorado Springs police officers arrived in Topeka and they also advised defendant of his rights, interviewing him for a period of approximately forty-five minutes. The murder charge was not mentioned to him during this interview. Later that evening he was again interviewed, after having been first...

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