Malo v. State
| Decision Date | 15 April 1977 |
| Docket Number | No. 476S123,476S123 |
| Citation | 361 N.E.2d 1201,266 Ind. 157 |
| Parties | James MALO et al., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of inflicting an injury while engaged in the commission of a robbery (Ind.Code 1971, § 35--13--4--6) and was sentenced to life imprisonment. His appeal presents the following three issues:
(1) Did the trial court err in failing, during the trial, to adjourn sua sponte and order a hearing to determine the defendant's competence to stand trial?
(2) Did the trial court err in failing to declare a mistrial sua sponte, for prosecutorial misconduct during final argument?
(3) Did the trial court err in denying the defendant's tendered instruction No. 1, which instruction purported to advise as to the post-trial procedures in the event of a verdict of not guilty by reason of insanity?
The crime was committed on June 25, 1974. A plea of not guilty was entered on July 31, 1974. Following a series of delays not material to the issues herein, a suggestion of the defendant's incompetence to stand trial was filed on June 23, 1975. The court immediately appointed Doctors Frank Hogle and Peter Gutierrez to examine the defendant. A hearing was held on June 23rd and June 25th. The testimony of Doctor Gutierrez was given on June 23rd and does not appear in the record, but at the conclusion of Doctor Hogle's testimony given on June 25th, which does appear in the record, the court adjudged the defendant not competent to stand trial, and he was committed to the Department of Mental Health. Thereafter, on July 2nd, he was ordered confined in the maximum security division of Beatty Hospital.
On September 8, 1975, a competency hearing was ordered predicated upon the reports of the examining physicians at Beatty Hospital, Doctors Evan Constan and J. A. Nunez. Such hearing was held on October 3rd, following which the court adjudged the defendant competent to stand trial. The record indicates that the last mentioned Doctors testified at such hearing, but the record does not include the evidence adduced at such hearing. The case was set for trial, and the defendant filed an additional plea of not guilty by reason of insanity. The case was tried before a jury on November 5, 6 and 7, 1975, and a verdict of guilty was returned.
At the trial, the defendant presented Doctors Hogle and Gutierrez upon whose testimony he had initially been found incompetent to stand trial, as witnesses upon the issue of his sanity at the time of the crime. Doctor Gutierrez's testimony disclosed that he had examined the defendant in June and concluded that he was not then competent to stand trial. He declined to express an opinion as to the defendant's mental capacity at the time of the offense, as he had made no examination in that regard. He stated that in his opinion, the defendant was not faking in June, when he The defendant's brother testified that another brother of the defendant had died in a fire in 1970, that thereafter the defendant began to inject drugs, became difficult to communicate with and was confined in a mental institution for five or six months in 1962.
had examined him. Doctor Hogle testified that he had examined the defendant on June 23rd and concluded that he was then acutely psychotic and not competent to stand trial. He did not express an opinion as to the defendant's mental capacity at the time of the crime. He did testify that his opinion of incompetence in June was formed, in part, by the defendant's physical mannerisms and that, in essence, the defendant displayed the same mannerisms at that time, i.e. at the time of trial. Doctor Hogle also testified that the physical mannerisms mentioned indicated an unsoundness of mind.
It is upon the foregoing record that the defendant contends that the court should have adjourned the trial and ordered a hearing to determine his competence to stand trial.
The presence of indicators requiring the court to hold a hearing under Ind.Code § 35--5--3.1--1 must, of necessity, be determined upon the facts of each case as it arises. In the case before us, two hearings had been held. Following the first, the defendant was adjudged incompetent to stand trial. Following the second, which was held more than three months later and subsequent to an observation period of two months in a state psychiatric facility, he was adjudged competent upon the testimony of the professionals who examined and observed him. There was no event or occurrence subsequent to the determination of competence which amounted to reasonable grounds requiring a third hearing. Conceivably, incompetence might occur subsequent to a determination of competence, in which event a trial should not be had or, if commenced, a mistrial declared. Were we to follow the course of action urged by the defendant, however, a trial could never be had where the defendant's incompetence was being urged. Under such circumstances, there will always be indicators present which could be the basis of a reasonable ground for believing the defendant to have insufficient comprehension to be brought to trial. The existence of facts which would be reasonable grounds under some circumstances does not ipso facto mandate a hearing under all circumstances. The decision whether or not to hold a hearing lies in the province of the trial judge and should be disturbed upon review, only upon a showing of clear error. The indicators proffered by the defendant did not, in the context of this case, mandate a third hearing.
It was in evidence that the defendant gave no statement following his arrest. Whether or not such evidence was properly admitted is not an issue before us. During his argument to the jury, the prosecutor recounted the circumstances of the arrest and said, 'Naturally he didn't give a statement because that is admitted into evidence and admitted defense guilt will have to consider.' We do not understand the statement, but defense counsel views it as improper comment upon his ...
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