France v. State, 1-178A23

• Decision Date: 22 March 1979
• Docket Number: No. 1-178A23,1-178A23
• Parties: James Edward FRANCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 66

387 N.E.2d 66

179 Ind.App. 659

James Edward FRANCE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-178A23.

Court of Appeals of Indiana, First District.

March 22, 1979.

Harriette Bailey Conn, Public Defender, Howard N. Bernstein, Deputy Public Defender, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Gordon E. White, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

James Edward France (France) was convicted of robbery, and received an indeterminate sentence of ten to twenty-five years and disenfranchised for a period of twelve years. Defendant-appellant France presents the following issues for review:

(1) Whether the trial court erred in instructing on the lesser included offense of robbery;

(2) Whether the trial court erred in denying defendant's motions for directed verdict at the inception of the trial and at the close of the State's case-in-chief;

(3) Whether the trial court erred in the usage of psychiatric reports of psychiatrists not present at trial;

(4) Whether a statement by the prosecutor was prejudicial to the defendant;

(5) Whether the trial court erred in overruling defendant's motion for mistrial and objections to the admission of evidence of other crimes.

We find no reversible error and accordingly affirm the conviction.

France was originally charged with commission of a felony while armed and robbery; ¹ the State later dismissed the latter charge. It is therefore contended that the trial court committed reversible error in instructing the jury on the lesser included offense of robbery: (1) because the State had previously dismissed that charge, and (2) since the facts clearly support the greater offense. ² This second prong was not a basis for objection at trial, and consequently, may not be argued on appeal. We, therefore, need only determine whether the previous dismissal of the robbery charge prevents an instruction on that lesser included offense.

There is no dispute that robbery is a lesser included offense of armed robbery. DeWeese v. State, (1972) 258 Ind. 520, 282 N.E.2d 828. We make that determination based, not only on the statutory language defining the elements of each offense, but also on the language of the charging information. Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770. The thrust of France's argument is that such circumstances deprived him of an adequate opportunity to prepare a defense. France had the burden to present this issue specifically, followed by cogent argument, and supported by proper authority. He has failed to provide this court with the appropriate authority. The cases cited by defendant in support of this proposition do not, in fact, corroborate this particular basis relied upon. Those cases pertain to lesser included offenses but not the issue of adequacy of preparation of a defense. Thus, France has failed to comply with the requirement of Ind. Rules of Procedure, Appellate Rule 8.3(A)(7) and this issue is thereby waived.

France argues error in the trial court's failure to grant his "Motion for Directed Verdict of Acquittal." We interpret this to mean motion for judgment on the evidence. T.R. 50. France bases his allegation of error on the failure of the State to enter a general denial to his plea of not guilty by reason of insanity. Indiana Code 35-5-2-1 states the following:

"Pleading insanity as a defense. When the defendant in a criminal cause desires to plead that he was of unsound mind at the time the offense charged was committed, he himself, or his counsel, must set up such defense specially in writing, and the prosecuting attorney May reply thereto by a general denial in writing." (Our emphasis)

France argues that the permissive "may" should be interpreted as a mandatory "shall", and therefore, failure to file a general denial is, in essence, an agreement of defendant's insanity. France has attempted to distinguish Brown v. State, (1934) 206 Ind. 223, 189 N.E. 133. That case held that failure to file a general denial to the pleaded defense of insanity is not reversible error absent a showing of prejudice to the defendant or his defense. France argues prejudice as to the defense of insanity by the State's introduction of allegedly biased psychiatric testimony. This contention is based upon the complete reversal of opinion of the court-appointed psychiatrists upon their second examination of France. We believe this demonstrates neither denial of a fair trial, nor prejudice requiring reversal of the trial court.

France also contends error in the overruling of his motion for directed verdict at the close of the State's case-in-chief. France based his motion upon three grounds: (1) failure by the State to enter a general denial to the defense of insanity; (2) failure to sustain a prima facie case of commission of a felony while armed by not proving use of a deadly or dangerous weapon, and (3) insufficient evidence of defendant's sanity. We have already disposed of France's first basis of error. The remaining bases are refuted by the evidence in that there was testimony of defendant's use of a gun during the commission of the robbery, and there was also testimony stating that France was sane at the time of the commission of the crime. One is entitled to a directed verdict only where there is a Total lack of evidence on some essential issue or where there is No conflict in the evidence where the evidence is susceptible to only one inference which is in favor of the accused. (Our emphasis) Mitchell v. State, (1978) Ind., 376 N.E.2d 473. Clearly, the trial court did not err in overruling defendant's motion. Moreover, defendant waived alleged error by presentation of evidence on his behalf. Simpson v. State, (1978) Ind., 381 N.E.2d 1229; Korn v. State, (1978) Ind., 379 N.E.2d 444; Moore v. State, (1978) Ind.App., 381 N.E.2d 523; Neff v. State, (1978) Ind.App., 379 N.E.2d 473; T.R. 50(A)(6).

France also contends error in the use by the State of psychiatric reports formulated by psychiatrists unavailable for cross-examination. In so doing, France argues denial of his right to confrontation. Although the reports were not introduced into evidence, the defendant contends that the questions asked by the State revealed the substance of the reports to the jury. France admits that his objections at trial were not complete but states that this court cannot "ignore the device of fundamental due process." We, therefore, are being asked to invoke the doctrine of fundamental error. The doctrine allows an appellate court to by-pass the normal rules of appellate procedure, such as the requirement of specific objections, when a failure to invoke the doctrine would be blatant error denying fundamental due process. Teague v. State, (1978) Ind., 379 N.E.2d 418. We do not find that the necessary fundamental error occurred here.

The fact that a psychiatric expert bases his opinion in part on reports from mental hospitals or other psychiatrists does not make the opinion and testimony of the expert excludable. Once a plea of insanity is offered by the defendant, all relevant evidence is deemed admissible. Twomey v. State, (1971) 256 Ind. 128, 267 N.E.2d 176. The Indiana Supreme Court addressed a similar question in Wilson v. State, (1966) 247 Ind. 454, 217 N.E.2d 147:

"It has been repeatedly held that a plea of insanity opens wide the door to all evidence relating to the defendant and his environment. In many instances evidence would not otherwise be competent or material except for showing the mental state of the defendant."

Although medical reports containing observations and expert opinions relating to a defendant's sanity or insanity should not be admitted directly into evidence, they may be used by another expert in rendering an opinion as to defendant's sanity. Smith v. State, (1972) 259 Ind. 187, 285 N.E.2d 275. The function of an expert witness in cases concerning one's sanity or insanity is advisory in nature. He does not state a fact, but gives an opinion; the trier of fact must make the ultimate decision on this issue. Stacks v. State, (1978) Ind.App., 372 N.E.2d 1201; Henderson v. State, (1974) 159 Ind.App. 621, 308 N.E.2d 710. Thus, "the facts upon which an (expert witness) bases (his) opinion may be shown so that the jury may weigh the opinion in light of the facts upon which it is based." Henderson v. State, supra, quoting from Walter v. State, (1935) 208 Ind. 231, 195 N.E. 268. Evidence which is logically relevant, but which has little probative value in the particular case, has no legal relevancy or materiality and may be excluded. Stacks, supra. A trial judge has wide latitude in ruling on the relevancy of evidence and such ruling will be reversed only for an abuse of discretion. No clear abuse has been shown.

France's next allegation of error urges prejudice as a result of a remark by the prosecutor in reference to habitual offenders. The following is pertinent to this issue:

MR. WORTH: My second objection, of course, on that would be the hearsay, that I don't have the opportunity to cross-examine whoever

MR. DOUGLASS: Your Honor, in answer to that specific argument, I would point out the cases in Indiana having to do with habitual offenders and the proof of, uh

MR. WORTH: I don't believe there's an affidavit that this man's a

MR. DOUGLASS: No, I say by analogy, I would argue that, you know, it's been admitted in those cases and it's admissible.

MR. WORTH: I think that is very prejudicial to the jury.

COURT: Alright, the Court can rule on it without that. The Court's already ruled on Exhibit A; anyway, we'll overrule the objection stated as to Exhibits A, B, and C for the reason that the hearsay objection does not apply to certified court records.

No definite and specific objection is evinced by the above colloquy. Nor is there any motion by defendant for mistrial, admonishment, or any other indication of an attempt by defense counsel to cure...