Berwanger v. State

• Decision Date: 11 March 1974
• Docket Number: No. 2-773A154,2-773A154
• Parties: Randall BERWANGER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 891

307 N.E.2d 891

Randall BERWANGER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2-773A154.

Court of Appeals of Indiana, Second District.

March 11, 1974.

Rehearing Denied April 15, 1974. Opinion Superseded 315 N.E.2d 704.

Palmer K. Ward, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

SULLIVAN, Presiding Judge.

Appellant Berwanger was sentenced to imprisonment for not less than two nor more than twenty-one years following his plea of guilty to a reduced charge of rape of a person over the age of 12.

His appeal presents no question relative to the guilty plea or as to guilt itself. He complains only that the Court erroneously denied his Petition to be Declared a Sexual Deviant, which was filed the day following entry of the guilty plea but prior to sentencing.

Between the acceptance of the guilty plea and sentencing, the trial court pursuant to the Criminal Sexual Deviant statute, IC 35-11-3.1-1 et seq., Ind.Ann.Stat. § 9-4001 et seq. (Burns 1973 Supp.) appointed two qualified physicians to examine Berwanger and report the results of such examination to the Court. The Court also ordered, as required by the statute, that the probation department investigate the circumstances of the crime committed and the prior record and history of Berwanger. Appellant's counsel was not present during the examinations conducted by the court-appointed physicians.

Following receipt of the examiners' reports, neither of which concluded that Berwanger was a probable criminal sexual deviant, the trial court denied Berwanger's Criminal Sexual Deviant Petition and imposed the penal sanction of IC 35-13-4-3, Ind.Ann.Stat. § 10-4201 (Burns 1956).

Appellant's assertions of error are confined to the following:

1. That since his counsel of record was not notified of the time and place of examination, he was denied the right to counsel afforded by IC 35-11-3.1-7, Ind.Ann.Stat. § 9-4007 (Burns 1973 Supp.).

2. That neither the probation department report nor the trial transcript (he presumably refers to the transcript of his guilty plea) were provided to the examining physicians as required by IC 35-11-3.1-6, Ind.Ann.Stat. § 9-4006 (Burns 1973 Supp.).

3. That a prior conviction for a sex offense was not adequately investigated by the probation department, and

4. That failure to grant him an evidentiary hearing prior to denial of his Criminal Sexual Deviant Petition violated his constitutional right to due process.

I LACK OF NOTICE TO COUNSEL AS TO TIME AND PLACE OF PSYCHIATRIC EXAMINATION DOES NOT VITIATE NEGATIVE DETERMINATION ON CRIMINAL SEXUAL DEVIANT PETITION ABSENT SHOWING OF PREJUDICE

At the outset we might note that Berwanger does not premise his 'right to counsel' argument upon constitutional grounds. He does not do so quite advisedly, for there is no constitutional right to have counsel present at an examination by court appointed physicians to determine one's mental capacity or state of aberration. United States v. Bohle (1971 7th Cir.), 445 F.2d 54; United States v. Smith (1971 5th Cir.), 436 F.2d 787, cert. den., 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142; United States v. Albright (1968 4th Cir.), 388 F.2d 719; Caster v. United States (1963 5th Cir.), 319 F.2d 850, cert. den., 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973; People v. Breese (1966), 34 Ill.2d 61, 213 N.E.2d 500. Such psychiatric examinations have been held not to jeopardize the Fifth Amendment right against self-incrimination. Weaver v. State (1966), 247 Ind. 315, 215 N.E.2d 533; Noelke v. State (1938), 214 Ind. 427, 15 N.E.2d 950; United States v. Bohle, supra.

Quite to the contrary, it has been observed that the very presence of a third party in a legal capacity might well obstruct the efficiency and impartiality of such examination. They are not adversary in nature. They are conducted not by examiners selected by one of the combatants but rather by impartial evaluators acting as an advisory arm of the court, and the subjective nature of the examination requires an atmosphere which is conducive to freedom of expression on the part of the person being examined. United States v. Bohle, supra. Such freedom of expression does not occasion any threat of prejudice to a defendant giving rise to a right of counsel if the privilege against self-incrimination is adequately protected. United States. v. Albright, supra.

In any event the exclusionary rule of the statute with which we are here concerned, IC 35-11-3.1-9, Ind.Ann.Stat. § 9-4009 (Burns 1973 Supp.) protects the rights of the defendant. It prohibits the use of any such information contained in the reports of the examiners in any proceeding other than the Criminal Sexual Deviant proceeding itself, or in a civil commitment proceeding. Such prohibition would properly extend to the use of direct testimony by the examining physicians with respect to the contents of such reports.

Appellant's argument then necessarily rests upon the legislative provision itself (IC 35-11-3.1-7, Ind.Ann.Stat. § 9-4007 (Burns 1973 Supp.)), which states:

'The alleged criminal sexual deviant shall be entitled to counsel during his examination by the court appointed physicians.'

The precise defect claimed in the proceedings here reviewed does not involve failure to advise Berwanger of the right of counsel for he was at all times pertinent represented by counsel of record. Nor does he assert that he was unaware of his right to have counsel attend the examination. He argues only that failure to give notice to his counsel of record of the time and place of the examination or examinations was contrary to the statutory provision and thus voiding the entire proceeding.

While as we have noted, the provision relative to presence of counsel is not implementive of any constitutional right and while the wisdom of such provision may be questioned, the legislature has therein enunciated what it conceives to be a salutary engraftment upon the Criminal Sexual Deviant procedure. Whatever may have been the policy prompting such legislative largesse, it is to be honored by the judiciary. Accordingly, it is well-advised that all trial courts when embarking upon the Criminal Sexual Deviant procedures require and afford reasonable notice be given to counsel as to the time and place of the mental examinations, and in the event that at such time the defendant is without counsel, to advise such defendant as to his statutory right.

Be that as it may, the question before us is whether the failure of such notice in the instant case requires reversal of the conviction and imposition of sentence.

The true thrust of appellant's argument is that the statutory procedures were not followed and that therefore the action of the trial court in denying his Petition is nullified.

He cites and quotes from Johnson v. Tipton Community School Corp. (1970), 253 Ind. 460, 465, 255 N.E.2d 92, 94, as follows:

'However, in the view we take of this case there is no question of the trial court's abuse of discretion because the only issue properly presented on this appeal is the trial court's compliance with a statute. The trial court has no discretion to fail to comply with a statute and this Court's scope of review in that question is not limited in any way.'

He further relies upon McNary v. State (1973 Ind.Ct.App.), 297 N.E.2d 853 in which a judgment was reversed because the trial court failed to order an examination of the defendant following his petition to elect drug abuse treatment as provided by statute.

McNary is not in point here. Had the trial court in this case refused to order a mental examination following Berwanger's Criminal Sexual Deviant Petition, the McNary holding would be applicable but as noted by Judge Sharp in speaking for the court there:

'Our mandate in this case is strictly limited to providing this described examination. This is in no sense a prejudgment of the discretionary options which are available to the Department of Mental Health and the trial court under the statutes which are a part of said examination and its aftermath. In his brief Appellant asserts correctly that the department of Mental Health is not required to accept Appellant for treatment . . .' 297 N.E.2d 853, 855.

Berwanger was afforded the examination which McNary was denied. The latter opinion is of no benefit to appellant here.

The explicit language of the provision in question may be said to require only that defendant's counsel is not to be excluded from the examination. It does not in its specific terms provide that counsel's absence shall, without showing of some prejudicial effect, nullify the examination and any further proceedings had relative thereto.

The only logical rationale which can be assumed for appellant's argument is that had counsel been present at the examination, the examiners would in some manner have been made aware of some factor or factors which would have led them to conclude otherwise than they did. Appellant, however, points to no such factor, evidence or information. In no way does he attack the conclusions of the examination reports other than impliedly and then merely to disagree therewith. He has failed to demonstrate that absence of counsel from the examination in any way resulted in prejudice to him other than the rank speculation implicit in his argument that had counsel been present, the result somehow and for some unassigned reason would have been different. Thus, as in Schmerber v. California (1966), 384 U.S. 757, at 766, 86 S.Ct. 1826 at 1833, 16 L.Ed.2d 908, 'no issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented.'

Indiana precedent confirms our holding in this regard. In Henderson v. State (1954), 233 Ind. 598, 602-603, 122 N.E.2d 340, 342, the Court held:

'The appellant has not pointed out how he could conceivably have been harmed by the action of...