Green v. State

• Decision Date: 15 June 1981
• Docket Number: No. 1179S314,1179S314
• Citation: 421 N.E.2d 635
• Parties: Thomas Abraham GREEN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 635

421 N.E.2d 635

Thomas Abraham GREEN, Appellant, v. STATE of Indiana, Appellee.

No. 1179S314.

Supreme Court of Indiana.

June 15, 1981.

C. Thomas Cone, Greenfield, for appellant.

Theodore L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen. Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from convictions for rape, class B felony; child molesting, class C felony; and confinement, class B felony. Appellant Green was sentenced to consecutive terms of twenty years each on the B felonies and a term of five years on the C felony which is concurrent with the other terms.

On appeal Green raises the following issues: whether the trial court failed to follow prescribed statutory procedure when Green entered a special plea of insanity; whether the trial court failed to follow statutorily prescribed procedure when he entered a suggestion of incompetency; and whether the trial court erred in imposing consecutive sentences.

I.

Green claims that the trial court committed reversible error when it refused to order a psychiatric examination as required by Ind. Code § 35-5-2-2, after permitting him to file out of time a notice of an insanity defense pursuant to Ind. Code § 35-5-2-1. The statutes read as follows:

Ind. Code § 35-5-2-1.

"When the defendant in a criminal case intends to interpose the defense of insanity, he must file a notice of that intent with the trial court within thirty days after entry of a plea of not guilty. However, in the interest of justice and upon a showing of good cause, the court may permit the filing to be made at any time before commencement of the trial."

Ind. Code § 35-5-2-2.

"At the trial of such a case, evidence may be introduced to prove the defendant's sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint two or three competent disinterested psychiatrists 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."

Nothing in the record supports Green's claim that the trial court had indeed exercised its discretion under § 35-5-2-1, and permitted him to file out of time. We find only a copy of the special plea (which incidentally does not meet the requirement of showing good cause for being filed more than thirty days after entry of the plea) stamped by the clerk's office with the date of the first day of the trial. The record does not show that the trial court made any determination on the insanity defense, raising the inference that it refused to exercise its discretion and permit filing out of time. Since the notice was not permitted to be filed, the mandatory provisions of § 35-5-2-2 did not come into play. There was no error here.

II.

The next claim is that the trial court committed reversible error in failing to follow the requirements of Ind. Code § 35-5-3.1-1 which provides:

"(a) 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.

"(b) At the hearing, other evidence may be introduced if relevant to whether the defendant has the ability to understand the proceedings and assist in the preparation of his defense. If the court finds that the defendant has...