Bryan v. State

Decision Date11 August 1982
Docket NumberNo. 281S48,281S48
Citation438 N.E.2d 709
PartiesMartin R. BRYAN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

James V. Tsoutsouris, Public Defender of Porter County, John F. Hoehner, Chief Deputy Public Defender, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Martin Bryan, was convicted of Attempted Murder, Ind.Code § 35-41-5-1 (Burns Repl.1979) and Ind.Code § 35-42-1-1 (Burns Repl.1979), Rape, Ind.Code § 35-42-4-1 (Burns Repl.1979), and Confinement, Ind.Code § 35-42-3-3 (Burns Supp.1982), by a jury in Porter Superior Court on October 2, 1980. He was sentenced on October 10, 1980, to forty-five (45) years for attempted murder, twenty (20) years for rape, and four (4) years for confinement. All sentences are to run concurrently. Bryan now appeals.

Defendant raises five errors on appeal, concerning: (1) whether the trial court followed the proper procedure in determining the defendant's competency to stand trial; (2) whether the trial court abused its discretion in overruling defendant's pre-trial motions for continuances; (3) whether defendant's Miranda rights were violated by the taking of both a tape recorded and video recorded statement from defendant; (4) whether the selection of the jury was proper and in compliance with the statute; and (5) whether defendant's sentence was manifestly unreasonable. Defendant raised an additional issue concerning an instruction defining attempted involuntary manslaughter, but in his reply brief defendant concedes, in light of Smith v. State, (1981) Ind., 422 N.E.2d 1179, where we held that there can be no crime of "attempted involuntary manslaughter," that he was not entitled to the requested jury instruction.

M.B., the victim, was working as a clerk in a 7-11 Store in Porter County, Indiana. On May 6, 1980, she went to her job. About 2:00 a. m., on May 7, 1980, a man grabbed her by the neck. She had seen him earlier, around midnight, when there were other people in the store. M.B. described the man and said the lighting was very good. She identified defendant, Martin Bryan, as this man.

M.B. tried to get free. Defendant said he had a gun and would kill her, asked if she had a car and said they would go for a ride. She got her keys while he still held her by the neck. He told her he was going to get a "quick piece of ass." Defendant forced her into the car and drove off. She tried to escape and fought with him. He put her in the driver's seat, placed something against her body and said it was a knife. He forced her to turn off and stop on a gravel road and to remove her lower garments and get into the back seat by threatening to kill her. M.B. testified that due to his threats she submitted to sexual intercourse. He performed cunnilingus and forced her to perform fellatio twice. He again forced her to submit to sexual intercourse. After she dressed, he choked her, rendering her unconscious for a brief time. He then drove around with her and while driving forced her to masturbate him and made her undress again. He stopped at a rest park and again forced her to submit to oral sex and intercourse.

Bryan expressed some worry about what she would say to the police. At a rest park he opened the trunk of her car, threw out various items that were in it, made M.B. get into the trunk and closed it. He then returned to the trunk, opened it, asked if she could breathe and when she said yes, he asked her to tell him where he could cut her throat to kill her. He took a knife which was on her key chain and cut her neck and wrist, causing bleeding and leaving scars. She went limp in order to make him think she had passed out. He cut her some more then locked her in the trunk again. Later he looked in the trunk, poked her and said, "Oh God, she's dead."

Defendant then drove the car around. The victim could tell from the sound that he pulled off on a gravel road and then onto a rough surface. She heard branches hitting the car. Bryan opened the trunk, poked M.B., tried to take her pulse and lifted her eyelid, then locked her in the trunk again. M.B. heard no sounds around the car. After it was silent for a while, M.B. tried to escape. She finally succeeded by kicking out the back seat of the car. She emerged to find her car in a ditch in a field near a trailer park and a farm house. A woman in the farm house helped her to wash off some of the blood and called the police, who took her to a hospital in Valparaiso. M. B. suffered several long cuts on her neck, bruises all over her left side, a welt on her arm, scratches on her back, bruises on her chest and a swollen throat. By the time of trial she still had numbness in the inside of some fingers and in her thumb.

Detective Sergeant Wayne A. Kempher, LaPorte County Sheriff's Department, tracked moccasin footprints in soft dirt from the car to a trailer park. Along the way he found a 7-11 Store smock. After obtaining a warrant for a trailer where the footprints stopped he found inside it clothes being washed, matching the description given by M. B. of the clothes her assailant was wearing. Bryan was arrested by Sheriff Jan Rose, who found him in bed. Rose read Bryan his rights and saw him execute a written notice of rights.


Defendant Bryan claims the trial court erred in failing to follow the provisions of Ind.Code § 35-5-3.1-1 (Burns Repl.1979) which prescribe the procedure to be followed to determine a criminal defendant's competency to stand trial. Defendant specifically alleges that the court failed to appoint two disinterested psychiatrists to examine him, and also that the trial court should have determined defendant's competency prior to trial.

Ind.Code § 35-5-3.1-1(a) reads as follows:

"If at any time before the final submission of any criminal case to the court or jury trying the same, the court, either from its own knowledge or upon the suggestion of any person, has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability. The court shall appoint two competent disinterested psychiatrists, who shall examine the defendant for the purpose of forming an opinion as to whether the defendant has that ability and shall testify concerning the same at the hearing."

[Repealed by Acts 1981, P.L. 298, § 9, effective September 1, 1982]

Defense counsel filed a Motion to Determine Competency on September 11, 1980, two weeks before the proposed start of defendant's trial. The following day, September 12, the trial court appointed Drs. Hansen, Hogle, and Berkson to examine defendant Bryan and also set a hearing date to determine competency on September 18. Upon learning that Dr. Hogle was on vacation, the trial court stated that he would not have to examine the defendant.

At the hearing on September 18, Dr. Nicolas Hansen was sworn and examined. Dr. Hansen testified, under the trial court's examination, that in his opinion "he [defendant Bryan] was competent; that he did understand the charges against him and that he would be able to cooperate with his attorney in preparing and conducting his own defense." Under cross-examination by defense counsel, Dr. Hansen stated that he had a B.A. and M.D. degree from Wayne State University. He also stated that he was Board Certified by the American Board of Family Practice and was a Fellow of the American College of Family Physicians. In the past, Dr. Hansen had testified both in Porter and Lake County courts in over 50 cases. Although he stated he was not a psychiatrist, half of Dr. Hansen's practice dealt with psychiatric related problems.

Dr. Berkson, a psychiatrist, testified that he did not consider Bryan competent to stand trial. His reasons were that Bryan did not actively cooperate with counsel, had unreasonable expectations of his attorney and persisted in a false belief that one of the three charges, confinement, was dropped. When questioned, Dr. Berkson stated that Bryan was not at a "disability to cooperate" with counsel, but was "basically refusing" to cooperate. The court found defendant competent, but appointed Dr. Batacan, another psychiatrist, to conduct a further competency examination and to report back to the court. The trial court stated its ruling was subject to change and that if change occurred during trial he would declare a mistrial. Dr. Batacan testified, after both sides rested but before submission of the cause to the jury, that Bryan was competent.

We find no error in the trial court's actions here. We stated in Adams v. State, (1979) Ind., 386 N.E.2d 657, 659:

"The right to a competency hearing is not absolute and the mere appointment of two physicians to examine a defendant does not automatically invoke the statutory procedure set out in Ind. Code § 35-5-3.1-1. Montague v. State, (1977) Ind. , 360 N.E.2d 181; Brown v. State, (1976) 264 Ind. 484, 346 N.E.2d 559. The statute and due process considerations only require that a hearing take place where the evidence before the court raises a bona fide or reasonable doubt as to the defendant's sanity. Pate v. Robinson, (1966) 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; Cook v. State, (1972) 258 Ind. 667, 284 N.E.2d 81."

However, once that doubt arises the trial court must follow the dictates of § 35-5-3.1-1. The legislature amended the statute in 1978, changing the required physicians to psychiatrists. We feel it was the legislature's clear intent that at least two psychiatrists examine the defendant. In this situation, two psychiatrists, Drs. Berkson and Batacan, did examine the defendant, although they did not testify at the same hearing. Dr. Hogle, another psychiatrist, had been appointed to examine defendant but was unable to do so because h...

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