McNeely v. State
| Decision Date | 22 June 1976 |
| Docket Number | No. 1--276A14,1--276A14 |
| Citation | 349 N.E.2d 204,169 Ind.App. 461 |
| Parties | Robert D. McNEELY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Anthony Champa, Shelbyville, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
STATEMENT OF THE CASE:
Defendant-appellant Robert D. McNeely (McNeely) and Thomas W. Bartlett were charged by information with second degree burglary 1 and automobile banditry 2 for having burglarized the Coca Cola plant in Shelbyville. The cause was submitted to a jury for trial on July 25, 1975. On that morning Bartlett entered a plea of guilty to the charges against him and apparently agreed to turn State's evidence. The cause was continued as to McNeely and the jury returned its verdict of guilty on each of the two counts.
FACTS:
The relevant facts of this case are as follows:
McNeely and Thomas W. Bartlett were observed by Officer Thurston of the Shelbyville Police running across the street from the Shelbyville Coca Cola plant to a parked car on the lot of the Standard Grocery Company. McNeely entered the right front seat of the parked car and Bartlett apparently tried to open the front door to the grocery. Officer Thurston arrested the two men and patted McNeely down for weapons, which resulted in his finding a key to a Coca Cola vending machine on the person of McNeely, which he claimed he had found back of the Coca Cola plant. Thurston also found two other keys and a pen which he returned to McNeely, but kept the Coca Cola key.
McNeely was placed in the car and Thurston talked with Bartlett in private and Bartlett admitted the two had just burglarized the Coca Cola plant. The co-defendants were brought to trial on July 25, 1975, before a jury. On the morning of that day Bartlett entered a plea of guilty to each count and apparently agreed to turn State's evidence. On the morning of July 28, 1975, McNeely filed his petition alleging Bartlett's mental incompetence to appear as a witness, which petition was dismissed by the court without a full hearing thereon and without comment by the prosecution.
The trial continued and co-defendant Bartlett testified, admitting the crimes charged and implicating McNeely.
On August 15, 1975, following a pre-sentence report McNeely was sentenced to not less than two nor more than five years for the offense of second degree burglary and to not less than one nor more than five years for the offense of automobile banditry.
ISSUES:
1. Whether the trial court erred in denying McNeely's motion to suppress certain evidence on the grounds that it was obtained by illegal search and seizure.
2. Whether the trial court committed reversible error by permitting the testimony of McNeely's accomplice, namely, Thomas W. Bartlett, who McNeely claimed had had mental distress in the past and should be examined by a psychiatrist.
DISCUSSION AND DECISION:
McNeely contends the trial court committed reversible error when the court summarily denied his petition alleging imcompetence of his co-defendant, Bartlett, to appear as a witness.
McNeely and Bartlett after being charged had bond set in the amount of $20,000 each and on April 23, 1975, the court reduced Bartlett's bond to $3,000 or $325 cash and he was advised by the court 'to commit himself to a psychiatric hospital and the report of the psychiatric hospital be submitted to his counsel and the court.'
After McNeely's filing the petition alleging Bartlett's mental incompetence to appear as a witness the court was specifically asked to take judicial notice of its own record showing that Bartlett was emotionally and mentally disturbed and to especially take notice of the court's docket entry requesting Bartlett be examined by a psychiatrist.
The prosecution took no position on the petition and neither did it object thereto. The court stated that he had concluded Bartlett was oriented as to time and place, found him oriented, and denied the petition alleging mental incompetence of Bartlett as a witness. The court then permitted Bartlett to testify as an accomplice without further hearing as to his mental competence to testify.
On cross examination Bartlett testified that when he was released on a reduced bond he was instructed to take psychiatric treatments and to be examined by a psychiatrist; that he thought he was examined by someone whose name he did not recall; no report was given him or the court; that the court did not appoint a psychiatrist to examine him; that he had been in a mental institution about a year previously for seven days and that his mother told him he had a mental disorder.
IC 1971, 34--1--14--5 (Burns Code Ed.) provides in pertinent part the following:
'The following persons shall not be competent witnesses:
First. Persons insane at the time they are offered as witnesses, whether they have been so adjudged or not.
* * *'
McNeely correctly contends that when his petition was filed the trial court should have at that point scheduled a hearing to ascertain whether Bartlett was a competent witness.
Our Supreme Court, in passing on the issue of appointing a psychiatrist for a witness where there is evidence that the witness may be mentally incompetent, said in Antrobus v. State (1970), 253 Ind. 420, 435, 436, 254 N.E.2d 873, 881,
'When the witness' competency was challenged under the statute it became the duty of the trial court to determine whether the witness was competent to testify. As this Court said in Wedmore v. State (1957), 237 Ind. 212, 143 N.E.2d 649:
237 Ind. at 223, 143 N.E.2d at 654.
'See also Grecco v. State (1960), 240 Ind. 584, 166 N.E.2d 180, 167 N.E.2d 714; Carpenter v. Dame (1858), 10 Ind. 125.
'Due to the nature of...
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