Brown v. State

• Decision Date: 14 May 1976
• Docket Number: No. 575S131,575S131
• Citation: 264 Ind. 484,346 N.E.2d 559
• Parties: Frank H. BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 559

346 N.E.2d 559

264 Ind. 484

Frank H. BROWN, Appellant (Defendant below), v.STATE of Indiana, Appellee (Plaintiff below).

No. 575S131.

Supreme Court of Indiana.

May 14, 1976.

[264 Ind. 485] Roy L. Dickinson, Franklin, for appellant.

Theodore L. Sendak, Atty. Gen., Joseph J. Reiswerg, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant was convicted in 1968, in a trial by jury, of murder in the second degree upon an indictment charging murder in the first degree and felony murder.His appeal following the overruling of a belated motion to correct errors in 1975 presents three issues.

1.Failure of the trial court to hold a competency hearing following a suggestion of insanity.

2.Admissibility of items of physical evidence.

3.Failure of the trial court to instruct the jury regarding the weight to be accorded to its view of the scene of the crime.

The sufficiency of the evidence has not been challenged.We, therefore, deem it unnecessary to recite the facts of this case.

ISSUE I

Prior to trial, defense counsel filed a motion alleging that the defendant was not mentally competent to assist and aid in his defense and without funds and requesting the appointment of '* * * a competent medical doctor to examine him and inquire as to his mental condition and competency.'The motion was granted and Doctor E. Rogers Smith, a physician, was appointed to examine the defendant, and the sheriff was directed to deliver Defendant to the physician on February 10th. (Tr.pp. 97, 98).On February 10th, the court issued an order to the sheriff to deliver the defendant to Doctor Smith on February 13th at 11:00 a.m. and to a Doctor Hazel Stevens(presumably a psychologist) at 3:00 p.m. of said day.(Tr.p. 101).On February 15th, Doctor Smith submitted a written report to the court advising that he had examined the defendant and in addition had caused him to undergo psychological testing by Doctor Stevens.Doctor Smith's report was a general evaluation of the defendant based both upon his examination and upon the written report to him from Doctor Stevens, which was enclosed in the report to the court, but advised specifically that, 'He had complete ability to differentiate between right and wrong, and I am sure has the intelligence to aid his attorney in his own defense.'(Tr.p. 118).

Following receipt of the report from Doctor Smith, the court proceeded to a trial without the holding of a competency hearing contemplated under Ind.Code 35--5--3--2, Burns 9--1706a, Acts 1951, ch. 238, § 2as amended byActs 1961, ch. 151, § 2, Acts 1963, ch. 91, § 1, andActs 1967, ch. 291, § 2.It is the defendant's contention that the court erred in its failure to hold a hearing and to determine his competency to stand trial under the aforementioned statute.

The State points out that the defendant made no objection to the aforementioned procedure and charges that error, if any, has been waived.The waiver theory is inapplicable to this issue, however, as has been previously determined in Tinsley v. State, (1973)260 Ind. 577, 298 N.E.2d 429.

This issue is controlled by Cook v. State, (1972)258 Ind. 667, 284 N.E.2d 81.In that case, we unanimously held that where the examining doctors reported a defendant competent to stand trial, it was not necessary to hold a competency hearing.The right to such a hearing is not absolute or automatic but is dependent upon the presence of reasonable cause to suspect that the defendant is incompetent to stand trial.It is obvious that in view of the report of Doctor Smith, the trial judge concluded that there was no reasonable ground for believing the defendant to be insane or incompetent to stand trial, and under these circumstances, he was not required to hold the hearing contemplated under the statute.

Defendant has further attacked the trial court's procedure by reason of Doctor Smith's having had the benefit of Doctor Stevens' report in making his evaluation.It is his contention that such procedure was contrary to the statutory requirements and was prejudicial to the defendant in that he was thereby denied the protection of medical opinions by two disinterested physicians.

The defendant has erroneously concluded that by his suggestion of incompetence, that is to say by his filing of a motion for a psychiatric examination, the court was thereby bound to put into effect the provisions of the statute.This apparently stems from the court's having granted his motion for a psychiatric examination.This action on the part of the court, however, did not amount to a finding of 'reasonable ground for believing the defendant to be insane,'the court could have denied the motion and absent other evidence, there would have been no error.That the court desired to have the benefit of a professional opinion prior to making his judgment of 'reasonable ground for believing,' did not put the statute into operation and require compliance with all of its provisions.

ISSUE II

Various items of physical evidence, including a rifle, shells and money were introduced into evidence over the objection of the defendant that they had been obtained in an illegal search of his automobile.The search had been made, without benefit of warrant, near the scene of the arrest where the vehicle had been abandoned.

Both the Indiana and United States Supreme Courts have been more tolerant of warrantless searches of automobiles, under exigent circumstances, than of other places.

'* * * automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.'

Chambers v. Maroney, (1970)399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419, reh. den.400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94.See alsoWhitten v. State, (1975), Ind., 333 N.E.2d 86;...