Galloway v. State
| Citation | 485 N.E.2d 637 |
| Decision Date | 25 November 1985 |
| Docket Number | No. 1-385A68,1-385A68 |
| Parties | In re Bobby C. GALLOWAY, Respondent-Appellant, v. STATE of Indiana, Petitioner-Appellee. |
| Court | Indiana Appellate Court |
David G. Hatfield, Evansville, for respondent-appellant.
Robert J. Pigman, Pros. Atty., 1st Judicial Dist., Evansville, for petitioner-appellee.
Respondent-appellant, Bobby Charles Galloway (Galloway), appeals the results of certain mental health commitment proceedings conducted in the Vanderburgh Circuit Court under Cause Number 2826, and the Vanderburgh Superior Court, Probate Division, Number 84-CIV-1066.
We affirm in part and reverse in part.
After being tried in the Vanderburgh Circuit Court on homicide charges in the slaying of his grandmother, Galloway was found not guilty by reason of insanity. Thereafter on August 29, 1980, the same court committed him to the Department of Mental Health pursuant to IND.CODE 35-5-2-5. 1 Annual reports of the department were submitted to the Circuit Court and commitment was continued through April 16, 1984. On that date Galloway filed his petition in Circuit Court requesting that the case be transferred to the Vanderburgh Superior Court, Probate Division, pursuant to IND.CODE 16-14-9.1-9(a). That sub-section confers jurisdiction in and requires transfer to the appropriate probate court all mental commitment proceedings occurring after the initial hearing and commitment. On October 15, 1984, Circuit Court Judge William H. Miller filed his petition with the Superior Court requesting it to accept the transfer, and such was ordered by the Superior Court. Over Galloway's objection, the Superior Court permitted Judge Miller to continue presiding over the case as Special Judge in Superior Court.
In the meantime, a report from the Department of Mental Health was received by the court which concluded that Galloway was no longer committable. Despite the report, Superior Court Special Judge Miller, on October 23, 1984, ordered the commitment continued. On October 25, 1984, Galloway filed a motion for change of judge from Judge Miller in Superior Court under IND.CODE 16-14-9.1-9 and 10 claiming both a right to an automatic change and a change for cause due to prejudice and adverse rulings.
On October 31, 1984, an appeal was taken from Circuit Court to this court under Cause Number 1-1084 A 270 which raised the following issues:
1. Error in permitting Judge Miller, as Circuit Court Judge, to serve as Special Judge in Superior Court.
2. Lack of jurisdiction of Judge Miller to serve as Special Judge in Superior Court.
3. Refusal to expunge Circuit Court records.
4. Continued confinement of Galloway in mental health facilities was contrary to law because the report from the Department concluded that he was no longer committable.
5. Error in permitting the prosecuting attorney to represent the State in commitment proceedings.
Also on October 31, 1984, Galloway, under IND.CODE 16-14-9.1-10(g), filed a Petition for Review of Dismissal of the October 23, 1984 order continuing his commitment. Thereafter on December 18, 1984, Judge Miller as Superior Court Special Judge overruled both of Galloway's October 25 motions (change of judge and objection to jurisdiction) and assigned a hearing date on the review of commitment for February 14, 1985. It does not appear from the record that the court ever disposed of the petition. Thereafter, on January 30, 1985, having concluded that Superior Court lacked jurisdiction, Judge Miller as Superior
Court Special Judge ordered the case transferred back to Circuit Court under the old cause number. On February 15, 1985, Galloway filed his Motion to Correct Errors in both the Superior Court case and the Circuit Court case. He thereafter perfected this appeal raising the following issues:
I. The decision of Judge Miller as Superior Court Special Judge to overrule the objection to Judge Miller's jurisdiction as special judge was error.
II. The decision of Superior Court Special Judge Miller to overrule the Motion for Change of Judge was error.
III. The decision of Superior Court Special Judge Miller to return the case to Circuit Court was error.
IV. The decision of Superior Court Special Judge Miller to permit the prosecuting attorney to intervene was error.
On June 28, 1985, this court handed down an opinion regarding the five issues Galloway raised on appeal October 31, 1984, under Cause Number 1-1084 A 270. 2 We affirmed that case in its entirety. Transfer was denied on October 28, 1985. That decision had the effect of holding that:
1. The Superior Court of Vanderburgh County acquired jurisdiction over the mental commitment of Galloway.
2. Judge William H. Miller was a properly constituted special judge and had jurisdiction over the case in Superior Court.
3. There was no error in refusing to expunge the Circuit Court record.
4. Continued confinement of Galloway in mental health facilities was lawful.
5. No error was committed in permitting the prosecuting attorney to participate in the proceedings on behalf of the state.
Issues I and IV.
These two issues were clearly decided in the June 28, 1985 decision of this court. We held that the Superior Court had jurisdiction and Judge William H. Miller was a properly constituted special judge of that court. We held further that allowing the prosecuting attorney to participate was not error. Review here is precluded by the twin doctrines of res judicata and/or the law of the case, and those issues may not now be relitigated.
Issue III.
The June 28 decision also decided that the Vanderburgh Superior Court, Probate Division, acquired jurisdiction over the commitment proceedings of Galloway. 3 That ruling became res judicata and/or the law of the case and may not be relitigated here. Special Judge William H. Miller was therefore in error in transferring the case back to Circuit Court. The State argues here that at the time of the original commitment, jurisdiction rested in Circuit Court under IND.CODE 35-5-2-5(b) and by virtue of a saving clause it remained there regardless of a subsequent change in the law requiring transfer in such matters to Superior Court. Whatever the merits of that argument, the matter was decided in the June 28 decision and may not now be relitigated. Circuit Judge William H. Miller is directed to transfer the case back to the Vanderburgh Superior Court, Probate Division.
Issue II. Change of Judge.
Galloway argues that the trial judge erred in denying his October 25 motion for a change of judge. He claims that under Ind.Rules of Procedure, Trial Rule 76(4), which permits a change of venue within 30 days after a probate claim, receivership claim, remonstrance, or other matters is docketed, that he was entitled to a change of judge within 30 days after the transfer of the commitment proceedings from Circuit Court to Superior Court which occurred on October 15. By necessity, we address the statutes involved.
IND.CODE 35-36-2-4 provides:
(Our emphasis.)
The record here is not complete but we assume that since this commitment was for a term in excess of a temporary commitment, it was under IND.CODE 16-14-9.1-10, the regular commitment section. The criminal court has jurisdiction to conduct the hearing. IND.CODE 35-5-2-5 (now repealed).
IND.CODE 16-14-9.1-9 provides for a 90 day temporary commitment upon notice, appointment of an examining physician and a hearing. In addition to his right to appear, testify, present evidence, and cross-examine, the respondent has the right:
"(e)(1) To receive adequate notice of the hearing so that he or his attorneys can prepare for the hearing;
(2) To receive a copy of the petition or order;
(3) To be present at the hearing, subject to the court's right to remove him if he is disruptive to the proceedings or the court's right to waive his presence at the hearing if it would be injurious to his mental health or well-being; and
(4) To be represented by counsel.
(f) The petitioner or petitioners or the person alleged to be mentally ill has the right to a change of judge, but not to a change of venue from the county." (Our emphasis.)
In addition, it is provided in that section:
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