Malo v. State, No. 476S123
| Docket Nº | No. 476S123 |
| Citation | 361 N.E.2d 1201, 266 Ind. 157 |
| Case Date | April 15, 1977 |
| Court | Supreme Court of Indiana |
Page 1201
v.
STATE of Indiana, Appellee (Plaintiff Below).
[266 Ind. 158]
Page 1203
Timothy M. Swan, Crown Point, for appellant; Spangler, Jennings, Spangler & Dougherty, Crown Point, of counsel.Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
PRENTICE, Justice.
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 [266 Ind. 160] 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
Page 1204
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.The defendant's brother testified that another brother of the defendant had died in a fire in 1970,...
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Bruce v. State, Nos. 1075
...error is error which, if not rectified, would deny the appellant 'fundamental due process.' " Malo v. State, (1977) Ind., 361 N.E.2d 1201, 1205. We do not find the admission of the fingerprint evidence, if it was in fact erroneous, to so vitiate the Appellant also sought, by pre-trial ......
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Decker v. State, No. 2-877-A-331
...must necessarily have [179 Ind.App. 493] risen to the stature of fundamental error. Such is not the law. In Malo v. State (1977), Ind., 361 N.E.2d 1201 at p. 1204 our Supreme Court "This claim of error was made for the first time by way of the defendant's brief, and for this reason alo......
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Pennycuff v. State, No. 49A02-9902-CR-117.
...Baird, 688 N.E.2d at 917. See also Brady v. State, 575 N.E.2d 981, 987 (Ind.1991) (right to meet witnesses face to face); Malo v. State, 266 Ind. 157, 162, 361 N.E.2d 1201, 1204-05 (1977) (alleged improper comment upon Fifth Amendment privilege to remain silent). The Indiana Supreme Court h......
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Wallace v. State, No. 583S190
...in the province of the trial judge and should be disturbed Page 454 on review only upon a showing of clear error. Malo v. State (1977), 266 Ind. 157, 361 N.E.2d 1201. Here the trial judge was informed by the prosecutor that the State intended to show that Defendant had been feigning his psy......
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Bruce v. State, Nos. 1075
...error is error which, if not rectified, would deny the appellant 'fundamental due process.' " Malo v. State, (1977) Ind., 361 N.E.2d 1201, 1205. We do not find the admission of the fingerprint evidence, if it was in fact erroneous, to so vitiate the Appellant also sought, by pre-trial ......
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Decker v. State, No. 2-877-A-331
...must necessarily have [179 Ind.App. 493] risen to the stature of fundamental error. Such is not the law. In Malo v. State (1977), Ind., 361 N.E.2d 1201 at p. 1204 our Supreme Court "This claim of error was made for the first time by way of the defendant's brief, and for this reason alo......
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Pennycuff v. State, No. 49A02-9902-CR-117.
...Baird, 688 N.E.2d at 917. See also Brady v. State, 575 N.E.2d 981, 987 (Ind.1991) (right to meet witnesses face to face); Malo v. State, 266 Ind. 157, 162, 361 N.E.2d 1201, 1204-05 (1977) (alleged improper comment upon Fifth Amendment privilege to remain silent). The Indiana Supreme Court h......
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Wallace v. State, No. 583S190
...in the province of the trial judge and should be disturbed Page 454 on review only upon a showing of clear error. Malo v. State (1977), 266 Ind. 157, 361 N.E.2d 1201. Here the trial judge was informed by the prosecutor that the State intended to show that Defendant had been feigning his psy......