We refer to plaintiff in error as defendant.
In an information filed in the district court of the City and County of Denver, it was alleged that:
On July 9, 1963, the cause was continued for entry of a plea and setting of a date for trial. Counsel for defendant was appointed on July 10, 1963. Defendant was arraigned on July 12, 1963, and by his attorneys he entered a plea of not guilty and not guilty by reason of insanity. The court then ordered the defendant committed to the Colorado State Hospital at Pueblo, Colorado, for a period of not to exceed thirty days for observation and report. The cause was then continued to August 13, 1963.
The report made by the examining doctors advised the court that defendant was legally sane. At the request of defendant, Dr. Robert Cohen was appointed to examine the defendant. He made his examination and also reported that defendant was sane.
On October 23, 1963, defendant, with leave of court, withdrew his pleas of not guilty and not guilty by reason of insanity. He then entered a plea of guilty to murder in the second degree, which the trial court refused to accept.
Whereupon, defendant was re-arraigned and entered a guilty plea to murder of the first degree. The court fully cautioned the defendant who persisted in the guilty plea. It was then reduced to a written statement and was signed by defendant in the presence of the court.
The court proceeded to trial to a jury on November 13, 1963, for the purpose of fixing the penalty either at life imprisonment or death as provided by statute. The evidence was presented, the jury duly instructed, and two forms of verdict were submitted to the jury by the court—one fixing the penalty at life imprisonment and the other at death.
On November 15, 1963, the jury returned a verdict as follows:
On December 5, 1963, a Motion for New Trial was filed, as follows:
"COMES NOW THE Defendant by his attorneys Richard M. Schmidt, Jr. and William G. Berge, and moves this Court for a new trial in the above
The above motion was argued on December 18, 1963, and denied on that date. The defendant was then sentenced to death.
The defendant seeks reversal on three grounds all of which are based upon the admission over objection of Exhibits A, B, C, D and E for the reasons:
1. That the exhibits are not relevant because defendant had already admitted his guilt, and pictures of bloody scenes and admission in evidence of deadly weapons are without probative value.
2. The Exhibits are not relevant because they prove commission of crimes other than the one charged, and
3. Even if relevant, these exhibits are too gory to be admitted into evidence, and that the sole purpose that the District Attorney had in offering the exhibits was to incite the jurors to vengeance and hatred.
It is contended that precedent will be set in this case because, heretofore, the law permitted only a plea of guilty to murder in which event the jury determined the degree and the sentence to be imposed; whereas, under the law as amended in 1959, the accused may enter a guilty plea to first degree murder with the jury determining only the sentence to be imposed. The contention is advanced that because the jury no longer determines the degree of murder, much of the evidence heretofore relevant in cases where there has been a plea of guilty is no longer relevant. It is argued that since first degree murder is admitted by the plea of guilty, the introduction into evidence of photographs and deadly weapons can have no probative value but merely an inflamatory effect upon the jury.
In the instant case defendant had confessed to a sequence of killings. The members of his own family including Leonarda Monge, his wife, a son Alan, a son Vincent, and his 11 month old daughter Teresa were all slain as part of a scheme to wipe out the family. Suffice it to say that the voluntary admissions of the defendant show plainly that all four were slain in a planned effort to prevent exposure of sex crimes committed by defendant with his own children.
The statute C.R.S.1963, 40-2-3, under which defendant pleaded guilty to first degree murder provides inter alia:
The statute thus gives a discretion to the jury to determine whether the penalty should be life imprisonment or death; hence, any and all evidence relating to the series of events of which the act charged in the information is a part was proper for the consideration of the jury. Anything admissible in a trial in which the accused enters a plea of not guilty, is proper for the consideration of the jury which is called upon to fix a penalty if the evidence bears upon circumstances showing aggravation or in mitigation of the offense.
Archina v. People, 135 Colo. 8, 307 P.2d 1083, cited by the defendant, is clearly not in point. The pictures involved in that case which were held to be improperly admitted did not show the scene as produced by the accused. St. Luke's Hospital Ass'n v. Long, 125 Colo. 25, 240 P.2d 917, 31 A.L.R.2d 1120, is also clearly not in point.
It is true that this court has never had before it any question directly involving C.R.S.1963, 40-2-3, and the procedure to be followed or the kind of evidence which is admissible where there has been a guilty plea to first degree murder under that statute. It does not follow, however, that within the scope of our past decisions there are no guide lines which govern our consideration of the questions which are raised.
The same question now presented has arisen where a killing occurs in connection with an armed robbery. In such a case, the jury has no discretion as to the degree of murder involved, for the reason that the crime is defined by statute as first degree murder.
In Abshier v. People, 87 Colo. 507, 289 P. 1081, defendant pleaded guilty to murder. The evidence revealed that the slaying occurred during a bank robbery in which defendant was a participant. In that case this Court said:
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In Reppin v. People, 95 Colo. 192, at page 210, 34 P.2d 71, at page 79, this Court, said the following in a "felony murder" case:
When the duty devolves upon the jury to determine the penalty, they must and should be possessed of all the facts and circumstances surrounding the commission of the crime with which the defendant is charged, that they may intelligently exercise the discretion which is vested in them in fixing the penalty. See Sukle v. People, 107 Colo. 269, 111 P.2d 233, and Leopold v. People, 105 Colo. 147, 95 P.2d 811.
All facts inseparably connected to the chain of events of which the act charged in the information is a part are admissible even though the full story shows the commission of other crimes. Wooley v. People, 148 Colo. 392, 367 P.2d 903; Ciccarelli v. People, 147 Colo. 413, 364 P.2d 368; Armijo v. People, 134 Colo. 344, 304 P.2d 633. We have repeatedly held that photographs are admissible in evidence if they depict facts which are relevant, and they are not rendered inadmissible because they reveal shocking details of the crime. People v. Spinuzzi, 149 Colo. 391, 369 P.2d 427; Atencio v. People, 147 Colo. 566, 364 P.2d 575; Martinez v. People, 124 Colo. 170, 235 P.2d 810. Photographs which depict the crime scenes as they were created by the defendant are properly admitted in evidence. Mills v. People, 146 Colo. 457, 362 P.2d 152; Skeels v. People, 145 Colo. 281, 358 P.2d 605.
We find no prejudicial error in the record.
The judgment is affirmed.
SUTTON, J., not participating.