Allen v. State

• Decision Date: 06 June 1972
• Docket Number: No. 1,No. 472A214,472A214,1
• Citation: 152 Ind.App. 284,283 N.E.2d 557
• Parties: Virgil L. ALLEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. . Division
• Court: Indiana Appellate Court

Page 557

283 N.E.2d 557

152 Ind.App. 284

Virgil L. ALLEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 472A214.

Court of Appeals of Indiana. Division No. 1.

June 6, 1972.

Rice & VanStone, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for plaintiff-appellee.

ROBERTSON, Presiding Judge.

Defendant Allen was convicted by a jury for the rape of a female under the full age of sixteen years and of harboring a child under eighteen years of age, and sentenced accordingly.

Allen, prior to the trial, made a motion for a psychiatric examination of the prosecuting witness to 'determine her credibility'. The motion was overruled. During the trial the motion was renewed and amended to include examination of the witness to determine competency as well. This motion was granted and the prosecutrix was thereafter examined by two qualified physicians. Following the examination, the trial court found that she was competent to testify, but did not inform the jury of the results of the examinations.

A summary of the conclusions of the examining physicians revealed that the prosecuting witness, who was fifteen years old at the time of the offense, was amoral, had an I.Q. of sixty-six and functioned mentally at an age of ten and one-half years, frequently ran away from home and 'got mixed up with boys'; had, according to her statements to the doctor, engaged in prostitution and indulged in sexual fantasies. Both doctors concluded that the prosecutrix was sane and competent.

The errors complained of in this appeal are that: the trial court erred in overruling Allen's first motion for a psychiatric examination of the prosecutrix; the psychiatric examination of the prosecutrix made during the trial was not sufficiently thorough to allow a doctor to fairly and accurately formulate an opinion; the court erred in ordering the prosecutrix examined strictly to determine her competency and not her 'probable credibility' as well; and the court should have informed the jury of the results of the psychiatric examination so that they could weigh the evidence presented by the prosecutrix in view of her 'probable credibility'. We are of the opinion that none of these allegations presents reversible error.

Allen's primary authority in support of his position is Burton v. State (1953), 232 Ind. 246, 111 N.E.2d 892. In that case the theory was advanced, as advocated by Dean Wigmore, that a sex offense charge should not go to a jury unless the prosecuting witness's 'social history and mental make-up have been examined and testified to by a qualified physician.' ¹ Dean Wigmore further advocates that such an examination should be conducted for the purpose of ascertaining the witness's 'probable credibility' and that a report to that effect should be presented in evidence. ² However, Dean Wigmore also recognized in his Treatise on Evidence, ³ and the Indiana Supreme Court as well as other states have agreed, that a rule requiring any complaining witnesses in sex offense cases to undergo a psychiatric examination to determine competency or credibility would require a legislative mandate. Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649; Lamar v. State (1964), 245 Ind. 104, 195 N.E.2d 98. Also see: State v. Klueber (1965), 81 S.D. 223, 132 N.W.2d 847, State v. Walgraeve (1966), 243 Or. 328, 412 P.2d 23, reh. den. 243 Or. 331, 413 P.2d 609, People v. Lewis (1962), 25 Ill.2d 442, 185 N.E.2d 254. Thus, it was held in Wedmore v. State, supra, 237 Ind. at p. 212, 143 N.E.2d at p. 654, that:

'. . . insofar as Burton v. State, supra, (1953), 232 Ind. 246, 111 N.E.2d 892, purports to require that in any sex case the complaining witness be required to be examined, before testifying, by a psychiatrist for the purpose of examining her social history and ascertaining her probable credibility, the report of such examination to be presented in evidence, it is disapproved and overruled.'

We are further in agreement with the statement in the Wedmore opinion that to not impose such a requirement '. . . is consistent with the rule that the credibility of a witness is a question for the trier of the facts'. It is therefore, our conclusion that the trial court did not err in denying Allen's pre-trial motion for a psychiatric examination of the prosecutrix to determine her credibility.

Allen next claims error in that the psychiatric examination of the prosecutrix, pursuant to the trial court granting the second motion for examination to determine competency, was not sufficiently thorough to allow the physician to form an accurate opinion. We are not persuaded by this argument since both examining psychiatrists testified that they had sufficient time to form an accurate opinion.

Testimony of Dr. Niedermayer:

'Q. Now, are you of the opinion that 25 to 30 minutes of interviewing a person for this purpose is adequate and sufficient?

A. Yes, sir.

Q. Or do you think you could have delved more deeply into her psychiatirics and given a more valid opinion had you been more time?

A....