Opinion
Rehearing Denied Sept. 23, 1975.
Page 131
Robert L. Russel, Dist. Atty., Jerry C. Nelson, Deputy Dist. Atty., James M. Franklin, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, Forrest W. Lewis, Deputy State Public Defender, Denver, for defendant-appellant.
COYTE, Judge.
In a sanity trial resulting from defendant's plea of not guilty by reason of insanity to a charge of first degree murder, defendant was found sane by a jury and subsequently pled guilty to the murder charge. He appeals the determination of sanity. We affirm.
Since the sole issue in the sanity trial was whether defendant was or was not sane, we do not elaborate upon the details of the two homicides involved. In outline, on the night of July 24--25, 1973, defendant picked up the two victims, acquaintances of his, at a bar in Colorado Springs and drove them and two other friends of his into the mountains. Some alcohol and pills were consumed during the journey. At some point, defendant stopped the car, turned around in his seat of the car and shot the two. He and one of the other passengers dragged the bodies out of the car, and returned to Colorado Springs. Later that evening, defendant drove another friend back into the mountains where they found the bodies and dragged them further from the road, attempting to hide them.
I.
Defendant contends that the instructions on insanity given to the jury were insufficient on two points and that the trial court erred in refusing to give his requested additions. The instruction given was in conformity with both the statute, s 16--8--101, C.R.S.1973, and Colorado Jury Instructions (Criminal) 3:9--5:
'A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act, or being able so to distinguish, has suffered such an impairment of mind by disease or defect as to destroy the willpower and render him incapable of choosing the right and refraining from doing the wrong is not accountable; and this is so howsoever such insanity may be manifested, by irresistible impulse or otherwise. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.'
Defendant requested that the phrase 'either in a moral or legal sense' be inserted after 'incapable of distinguishing right from wrong.' He also requested that two instructions be given defining mental disease or defect.
The instruction as given is correct as it sets forth the test of insanity in the exact language of the statute. Salas v. People, 181 Colo. 321, 509 P.2d 586. It is not unconstitutional for vagueness, Castro v. People, 140 Colo. 493, 346 P.2d 1020, and thus 'right' or 'wrong' does not need explanation. Similarly, 'mental disease or defect' is a straightforward term and needs no additional definition. See Simms v. People, 174 Colo. 85, 482 P.2d 974. Furthermore, additional guidance is given to the jury by the final sentence of the instruction, Supra.
Defendant also contends that the jury was improperly influenced by testimony of the expert witnesses who testified that defendant did not suffer from any mental disease or defect. The court instructed the jury that it was to determine what weight to accord the testimony of the psychiatrists in making its own determination as to whether defendant suffered from mental disease or defect. It must be presumed that the jury correctly followed these instructions, Anderson v. Munoz, 159 Colo. 229, 411 P.2d 4, and made an independent determination.
II.
Defendant contends that the trial court erred in refusing to allow one of the expert witnesses to answer a particular hypothetical question testing the rationality of defendant's conduct when he returned to the scene of the murder.
Hypothetical questions must include material facts essential to a fair opinion by an expert. See Johns v. Shinall, 103 Colo. 381, 86 P.2d 605. The use of a particular hypothetical question is within the discretion of the court; as stated in Oglesby v. Conger, 31 Colo.App. 504, 507 P.2d 883, 'Determination of the pertinency of the omitted facts rests in the discretion of the trial court and will not be reversed unless clearly erroneous.'
The question asked at trial was:
'Now, let's assume, Doctor, that he goes back up to where those bodies are and doesn't look for the coat, takes a person along for finding it, and then doesn't look for it; does that strike you as a rational act?'
In response to the district attorney's objection the court found the question improper because of defense counsel's failure to include 'all of the facts that occurred that were important.' The court directed counsel to rephrase the question reciting all the facts. Defense counsel refused. We therefore find no abuse of the court's discretion in refusing to allow the hypothetical question as originally phrased.
III.
Defendant finally asserts that remarks made by the prosecuting attorney in closing argument were so inflammatory and prejudicial that a mistrial should have been declared. The remarks concerned the ages and races of the victims and the duty of citizens to accept responsibility. Defendant contends that they caused emphasis to be placed upon the defendant's guilt rather than the issue of insanity. While we agree with the defendant that these remarks were improper and are not to be condoned, they were not so prejudicial or inflammatory that they could not be cured by the instructions given. See Stout v. People, 171 Colo. 142, 464 P.2d 872.
The instructions given here stressed throughout that the sole issue was the sanity, not the guilt, of the defendant. The jury was also instructed that remarks by counsel were not to be taken as evidence. Furthermore, as in People v. Elliston, 181 Colo. 118, 508 P.2d 379, the factual matters alluded to by the prosecuting attorney were in evidence and constituted no surprise to the jury.
The granting of a motion for a mistrial rests within the sound discretion of the trial court, People v. Elliston, supra, and we find no abuse of that discretion here.
Judgment affirmed.
ENOCH and BERMAN, JJ., concur.