Clay v. State

• Decision Date: 14 May 1976
• Docket Number: No. 874S166,874S166
• Citation: 346 N.E.2d 574,264 Ind. 495
• Parties: Thomas Lee CLAY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 574

346 N.E.2d 574

264 Ind. 495

Thomas Lee CLAY, Appellant, v. STATE of Indiana, Appellee.

No. 874S166.

Supreme Court of Indiana.

May 14, 1976.

Jerry W. Newman, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged by indictment with the crime of kidnaping. Trial by jury resulted in a verdict of guilty and appellant was sentenced to life imprisonment.

The record discloses the following evidence: On July 10, 1972, Mrs. Constance Jean Fleming started to enter her automobile in the parking lot of her employer. This parking lot was located in Marion County. Appellant came from behind Mrs. Fleming, struck her three times in the face, forced her into the car and got in beside her. He then drove the car on a circuitous route to a cornfield in Johnson County. During the drive Mrs. Fleming attempted to get out of the car, but appellant held her by the wrist as he drove. Appellant warned that he would wreck the car and kill them both if she tried to get away.

Upon arrival at the cornfield in Johnson County, the appellant forced Mrs. Fleming from the car, removed her clothing, forced her to commit sodomy on his person and raped her. He then tied her up with her undergarments and some twine found in her car. After appellant had left with Mrs. Fleming's car, she walked to a highway where she obtained aid.

At the trial Mrs. Fleming testified that the appellant appeared to be sane throughout the ordeal. Two court-appointed doctors testified that from their examination of appellant he was sane at the time of the offense.

Appellant first claims the trial court erred in appointing doctors to determine whether appellant was sane at the time of the alleged crime, before a plea of insanity had been filed, and by refusing to strike the doctors' reports. At the time appellant was arraigned he was represented by counsel. Following the entering of a plea of not guilty, the court appointed two doctors to examine him to determine whether or not he was competent to stand trial and whether or not he was insane at the time the offense was committed. The record does not disclose what conversation may have occurred between the court and counsel at that time. However, there is no showing in the record of any objection by defense counsel at the time the trial judge appointed the two physicians.

From the record before us we must presume the trial judge had good reason to believe the defense of insanity would be invoked and that he was attempting to comply with the statute in view of such defense. If this were not in fact the case at that time, it was incumbent upon the defense counsel to object to the appointment of the doctors. This he did not do. Therefore, we can only presume that the appointment of the doctors met with his approval at that time. It was only after the report of the doctors indicated that appellant was sane at the time of the offense and competent to stand trial that we see the first objection to their appointment in the record. We would point out that appellant did in fact invoke the defense of insanity during the course of the trial. We, therefore, hold that no error is presented by this record concerning the appointment of the doctors. James v. State, (1974) 261 Ind. 495, 307 N.E.2d 59, 40 Ind.Dec. 584.

Appellant next argues that when he did raise the issue of his sanity the doctors who had been appointed by the court were not 'disinterested' as required by law because they had examined the appellant and found him sane prior to his raising the defense of insanity. Here again the argument is raised for the first time on the motion to correct errors. There is nothing in the record to indicate any objection was made at the time of the appointment of the doctors, nor at the later time when the appellant petitioned for the appointment of two different doctors. Thus, here again the question is waived. TR. 46; James v. State, supra. We would further point out that appellant's contention the first doctors appointed were not disinterested because they had examined him previously does not impress us. There is nothing in this record to indicate that the doctors were prejudiced because they had examined the appellant prior to his plea of insanity. The integrity of the doctors has not been questioned. The mere fact the trial court had appointed them to examine the appellant and the fact that they did examine him does not give rise to any inference that they would, in any sense, be prejudiced one way or the other in the case.

Appellant next claims the trial court erred in allowing the court-appointed doctors to testify during the trial that appellant was sane and that the jury was advised by the court that it had appointed the doctors. Here again, no objection was made at the time of the questioning of the doctors. The statute under which these doctors were appointed reads as follows:

'At the trial of such cause, evidence may be introduced to prove the defendant's present sanity or insanity, or his sanity or insanity at the time at which he is alleged to have committed the act charged in the indictment or information. When an insanity defense is pleaded, the court shall appoint two (2), or three (3), competent disinterested physicians to examine the defendant, and to testify at the trial. Such testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of medical experts employed by the state and by the defense, if any. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such medical witnesses.' IC 35--5--2--2 (Burns 1975)

The trial judge followed the mandate of the above-quoted statute. The doctors the court had appointed testified following the evidence presented by the State and by the appellant. This statute is a proper exercise of the legislative prerogative to insure a fair and just trial for persons who could possibly be found to be insane. The method of procedure outlined is calculated to insure fairness rather than to create undue emphasis upon the evidence presented.

Appellant cites the cases of People v. Dickerson, (1910) 164 Mich. 145, 129 N.W 199 and People v. Scott, (1927) 326 Ill. 327, 157 N.E. 247. In each of these cases the courts were faced with a statute similar to the above-quoted Indiana statute and in each case the courts held that it was improper for court-appointed experts to examine a defendant as to insanity. However, these cases have been criticized. See 2 Wigmore, Evidence, § 563, n. 7. The leading case in support of statutes allowing the court to appoint experts and to examine them at the trial is Jessner v. State, (1930), 202 Wis. 184, 231 N.W. 634. In the Jessner case the Court stated:

'By the statute under consideration the legisalture has deliberately attempted to regulate the subject of expert evidence in criminal trials, to the end that there may be some evidence in the case, not bought and paid for, coming from impartial witnesses who owe no duty or allegiance to either side of the controversy, and that the fact of their impartiality shall be made known to the jury. Whether the sponsoring of any witness by the court is good public policy is no longer a matter of judicial opinion. The dominant opinion of the legislature upon that subject has received expression, and its expression upon matters of public policy prevails unless it contravenes constitutional provisions. We find no constitutional provision relating to jury trials which prohibits the practice thus prescribed by the legislature.' 202 Wis. at 193, 231 N.W. at 638.

We hold the trial judge properly exercised his duties under the statute and that the statute...