Kennedy v. State, 1069S237

CourtSupreme Court of Indiana
Citation280 N.E.2d 611,258 Ind. 211
Docket NumberNo. 1069S237,1069S237
PartiesPaul Thomas KENNEDY, Appellant, v. STATE of Indiana, Appellee.
Decision Date24 March 1972

Ronald V. Aungst, Lyons, Aungst, Guastella & Allen, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., M. Daniel Friedland, Indianapolis, of counsel, for appellee.

HUNTER, Justice.

This is an appeal by Paul Thomas Kennedy, appellant (defendant below), from a conviction for first degree murder. Appellant was indicted by the Porter County, Indiana, Grand Jury on November 30, 1961. Appellant sought a change of venue which was granted and venue was changed to LaPorte County. December 19, 1961, appellant appeared in court with counsel and pleaded not guilty and not guilty by reason of insanity. Two days later the trial court appointed three psychiatrists to examine the appellant. On March 12, 1962, a hearing was held to determine if the appellant had sufficient mental competency to assist in his own defense and thus to stand trial. The court found that appellant did not have sufficient comprehension to understand the nature of the criminal charges against him, and ordered appellant committed to the Norman M. Beatty Memorial Hospital on March 14, 1962.

Approximately six and a half years later on September 11, 1968, the superintendent of the Norman M. Beatty Memorial Hospital certified to the LaPorte Superior Court at Michigan City that appellant was competent to stand trial. Appellant was transferred to the LaPorte County jail for the purpose of standing trial. October 25, 1968, appellant appeared in court and again entered a plea of not guilty along with his special plea of insanity. Once again appellant was examined by three psychiatrists concerning his sanity. Trial by jury commenced on April 8, 1969, and on April 23, 1969 the jury returned a verdict of murder in the first degree finding the appellant should suffer death. On May 21, 1969, the trial court pronounced judgment and sentenced appellant to death by electrocution. Appellant filed a motion for a new trial which was denied and this appeal followed.

Appellant contends that the method by which the trial judge examined some of the expert psychiatric witnesses whose testimony was favorable to the appellant was prejudicial; that the judge did not examine these witnesses in an impartial manner but actually cross-examined these witnesses in a highly argumentative tenor. It is contended that the judge thereby abandoned his role as the impartial arbiter of the trial and assumed the role of prosecutor; that due to the closeness of the issue of insanity such conduct was highly prejudicial to the appellant.

The issue of insanity was indeed close. The crime took place in 1961 but appellant was not considered sufficiently competent to stand trial until 1968. The interim was spent in the maximum security section of Norman M. Beatty Memorial Hospital during which time the appellant received over sixty electro-shock treatments. Although the evidence as to sanity was conflicting it was the opinion of four of the five psychiatrists who examined appellant that he was insane at the time the crime was committed. It was also shown that a short time before the crime occurred appellant's family had sought the advice of a Catholic priest who worked at Beatty Hospital concerning their difficulties with appellant and the priest advised them that the appellant needed psychiatric help before he killed himself or someone else. There was lay testimony going both ways concerning the apparent state of mind of appellant in and around the time when the crime was committed.

It is apparent from a review of the evidence on the issue of insanity that the testimony of the expert witnesses was extremely important to the adjudication of this cause. The impression these witnesses made on the jury could very well be the difference between the jury's finding the appellant sane and finding him insane.

It was during the trial judge's examination of Doctor Hill, one of the court appointed psychiatrists, that the exchange took place which is the basis for the contention of prejudicial conduct. The following is the judge's examination and defense counsel's objection thereto.

'Q All right. Now, Doctor, I will ask you, based on your examination, what you read of these reports and so on, do you have an opinion as to whether the defendant, Paul Thomas Kennedy, was legally sane or insane?

A At the time he committed the act?

Q Yes?

A With a qualifications (sic) that I've already made I feel reasonably sure that he did not comprehend what he was doing.

Q Then would you say that he didn't know the difference between right and wrong at that time?

A I would think he probably did not.

Q Did not.

A Did not know the difference, that's right.

Q Nowhere in your report did you report this to me?

A What I told you in the report was somewhat more circumscribed than that, that's quite true.

Q What?

A Was somewhat more circumscribed.

Q What do you mean by that?

A Well, that is I did not try to make a complete commitment until we came here to so I could present the whole thing in the testimony.

Q But that isn't what I asked you in the letter, is it? Didn't I ask you to give me an opinion whether he was legally insane or not?

A I gave you the best opinion I could in the letter I thought.

Q Well, is that the best opinion you can give now?

MR. AUNGST: Your Honor, I think I will want to interpose at this point. I think the doctor is indicating to the court that as a result of the request by the court he gave the best answer he could. He is now indicating some further factors upon which he would qualify the request that was made by the court. I think he has indicated that to the court and to the jury. With those added qualifications he has indicated that he could not comprehend the consequences of his act. Is that correct, Doctor? Is that how I understand it?

A Yes. I've given all the facts that surrounded the situation, yes.

Q Well, you had all those facts, didn't you, on December the 12th, 1968, when you examined him and read all the reports and everything else on December 12, 1968, didn't you?

A I read them all, that's right.

Q When did you make the report to me?

A I made it in March. I wrote the report, yes.

Q March 20, 1968, didn't you?

A 1969.

Q. 1969. That's three months later. Isn't that right?

A That's right.

Q But you didn't say anything in there about that he didn't know the difference between right and wrong, did you?

A No.

MR. AUNGST: Your Honor, I think at this point recognizing the fact that Doctor Hill is the court's witness. I nevertheless feel that this point is--best I possibly can--I think I will object to the court's line of questioning at this stage of the game. I feel that the answer has been stated by the doctor, that it is a favorable answer to the defendant and consequently the court is now in a position of taking so more or less the robe off and becoming an advocate in this lawsuit rather than a neutral party.

THE COURT: No, I just want to--

MR. AUNGST: I think the doctor has answered your question, Your Honor.

THE COURT: I asked this doctor to define legal insanity and I asked him to make an examination and determine whether he was legally sane or not. And no place in the report and his acknowledges, is the word insane used.

MR. AUNGST: I find myself in a strange position. Doctor Hill is not my witness.

THE COURT: I know.

MR. AUNGST: By the same token, I think the doctor is attempting to indicate to the court with the other qualifications that he has indicated here to the court, that this is the best opinion he can give, with those added qualifications.

THE COURT: What added qualifications?

MR. AUNGST: Qualifications regarding based on other reports and the other indications by the other doctors who made the examination. I don't believe Doctor Hill understood that was the basis upon which he was to give the court opinion before. Recognizing the fact, he now handles that qualifications, (sic) he's given opinions on those--

THE COURT: He bases his opinion on those. In his report he says, 'our psychological studies indicate a substrate possible psychotic thinking, which may well have developed before or during the period in which acts were committed. And the record shows clearly that he was psychotic for a considerable period while in the hospital. As I have said above, I do not regard him as psychotic now and I cannot say with absolute surety of my own knowledge, he was psychotic at the time of the alleged offense. But he may well have been.'

MR. AUNGST: Your Honor, I suggest to the court this is exactly the testimony that Doctor Hill has given us here this afternoon.

THE COURT: No it isn't.

MR. AUNGST: Well, as I say I'm in a strange position arguing with the court on its own witness.

THE COURT: The court's in a strange position, too.

MR. AUNGST: Yes, I recognize that, Your Honor.

Q On November 14th, 1968, I contacted you, didn't I, to examine--

A That's right.

Q December the 12th, you made the examination. Is that true?

A That's true.

Q On several occasions I wrote you a letter and asked you over the telephone to send the report, did I not?

A You did.

Q And you stated that you would have it in a short time, is that right?

A That's right.

Q But you didn't send it in until March the 20th, 1969, is that right?

A Yes, you're quite right. That's when you got it.

THE COURT: All right, take the witness.'

It is clear from the method in which the trial judge examined this witness that he had serious doubts as to the witness' credibility. The examination is done in a highly argumentative fashion approximating the typical attempt at cross-examination and impeachment. The judge indicates by his conduct an attempt to show that the witness has changed his mind between the time of his initial report and his testimony at trial. As the twenty-four eyes and the twenty-four ears of the ever...

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