Myers v. State, No. 985S369

Docket NºNo. 985S369
Citation510 N.E.2d 1360
Case DateAugust 03, 1987
CourtSupreme Court of Indiana

Page 1360

510 N.E.2d 1360
Janet M. MYERS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 985S369.
Supreme Court of Indiana.
Aug. 3, 1987.

Page 1362

Jeffrey D. Galyen, New Castle, for appellant.

Linley E. Pearson, Atty. Gen., Jody Cusson-Cobb, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On February 15, 1985, Defendant-Appellant Janet M. Myers was found guilty by jury of Murder. She was subsequently sentenced to fifty years (50) imprisonment. She directly appeals the conviction, raising the following issues for our review:

1. denying Defendant's request for funds for an additional psychiatrist;

2. denying Defendant's request to act as co-counsel;

3. refusing to dismiss the murder charge because an autopsy sample taken from the victim was broken;

4. admissibility of Defendant's statements;

5. admissibility of two photographs;

6. admitting evidence of abdominal injuries when the charging instrument stated "striking at and against the head and chest" as the cause of death;

7. refusing Defendant's tendered instruction 1;

8. refusing Defendant's tendered instruction 3;

9. refusing of Defendant's tendered instructions 4, 5, and 6;

10. failing to instruct the jury on voluntary and attempted voluntary manslaughter.

The facts are as follows. On October 11, 1983, police were called to a home in New Castle concerning the beating of an elderly woman. Upon arrival, they found the victim and Defendant, the victim's live-in housekeeper, lying on the living room floor. The victim, Ethel Mahoney, had been severely beaten. She died on October 17, 1983.

On October 12, 14 and 15, 1983, subsequent to Defendant waiving her rights, she gave statements to police. The statements revealed that Defendant had stolen money from Ethel Mahoney and planned her murder to cover up the crimes. Defendant killed the victim by striking her repeatedly with a hammer and fire extinguisher.

I

Appellant first asserts the trial court committed fundamental error by denying her request for funds to hire a private psychiatrist. Appellant claims the private psychiatrist was necessary to aid her in determining the viability of an insanity defense. Appellant was afforded a court appointed psychiatrist and psychologist because she filed a Notice of Defense of Mental Disease or Defect. When notice of an insanity defense is given, the court must appoint two or three competent disinterested psychiatrists, psychologists, or physicians, at least one of whom must be a psychiatrist, to examine the defendant and to testify at the trial. Ind.Code Ann. Sec. 35-36-2-2 (Burns Supp.1986). The trial court clearly complied with the mandates of this law. After the two experts submitted their evaluations to the court, Appellant withdrew her Defense of Mental Disease or Defect.

Appellant contends that having the court appointed experts examine her was not a feasible alternative to a private psychiatrist because she must waive her doctor-patient privilege regarding any communications about the crime. Consequently, if she later withdrew the insanity defense, those experts could impeach her testimony or testify about any admissions she made. Appellant contends the denial of her request for funds violated her constitutional rights of equal protection, due process, effective assistance of counsel and the right to prepare a defense.

A defendant clearly does not have the right to receive funds to hire a psychiatrist of his own choosing. Palmer v. State (1985), Ind., 486 N.E.2d 477, 482; Norris v.

Page 1363

State (1979), 271 Ind. 568, 571, 394 N.E.2d 144, 147. This is so particularly when the defendant shows no prejudice resulting from the denial of additional experts for the preparation of his defense. In Norris, after the defendant was examined by two court appointed psychiatrists, he requested permission to retain, at the State's expense, a psychiatrist of his own choosing. This Court found the denial of a private psychiatrist at State expense did not force the defendant to withdraw his temporary insanity plea. Norris, 271 Ind. at 571, 394 N.E.2d at 147. We have further stated:

It is well settled that an accused is not constitutionally entitled at public expense to any type of expert the accused desires to support his case. This matter is commended to the sound discretion of the trial court whose determination will not be overturned absent a showing of abuse of discretion. Thomas v. State (1984), Ind., 459 N.E.2d 373; Craig v. State (1983), Ind., 452 N.E.2d 921.

Wisehart v. State (1985), Ind., 484 N.E.2d 949, 954, cert. denied (1986), --- U.S. ----, 106 S.Ct. 2929, 91 L.Ed.2d 556.

Appellant fails to explain why a private psychiatrist was necessary to aid her in determining the viability of an insanity defense. There is neither a showing as to why the psychiatrist was needed, nor how Appellant was prejudiced by the judge's denial of her motion. We therefore find no abuse of discretion committed by the trial court in refusing her request for funds.

II

Appellant next alleges she was denied a fair trial because she was not permitted to act as her own co-counsel. The scope of Appellant's requested participation as co-counsel was to be limited to addressing the jury as part of the closing argument. Appellant asserts she has a constitutional right to fully participate in her defense as co-counsel, and claims prejudice by not being permitted to so participate.

Since Appellant's request asked leave of the court to perform self-representational acts while also enjoying assistance of court appointed counsel, it was actually a request to have hybrid representation. Averhart v. State (1984), Ind., 470 N.E.2d 666, 689, cert. denied (1985), 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323. Granting or denying hybrid representation is within the trial court's discretion. Bradberry v. State (1977), 266 Ind. 530, 537, 364 N.E.2d 1183, 1187. This Court has refused to recognize a constitutional right to hybrid representation and a trial court may, in its discretion, deny a motion requesting creation of such a scheme. Averhart, 470 N.E.2d at 689; Lock v. State (1980), 273 Ind. 315, 319, 403 N.E.2d 1360, 1364-65. The decision of the trial court will not be overturned absent a clear showing of abuse of discretion. Hunt v. State (1984), Ind., 459 N.E.2d 730, 733. Here, Appellant claims prejudice by the court's ruling but neglects to support the statement from the record. Thus, we will not reverse the trial court.

III

Appellant alleges the trial court erred in overruling her Motion to Dismiss based on the fact that a vial of blood taken from the victim at the autopsy was accidentally broken.

On Friday, December 28, 1983, Police Officer Tom Jarvis transported several items, including the vial of blood, to a court hearing for the purpose of identification. After a lab technician identified the items, Officer Jarvis was given permission to return the items to the State Police. Officer Jarvis placed the items in the trunk of his automobile until Monday, when he had an opportunity to return them to the Connorsville State Police Post. Later, a lab technician discovered that a vial containing blood had been broken. It could not be determined whether the vial had been broken by freezing the fluid in the very cold weather or whether the vial had been struck by some other object. Officer Jarvis testified he had personal knowledge that at least one other blood sample had been taken from the victim's body and any test results from that sample were probably available. There is no testimony that any of the blood samples, including this one, were ever analyzed

Page 1364

or examined by any of the physicians or that they found it necessary to do so. There was testimony from medical experts that some testing could likely be done on the residue of the blood soaked into the paper sack which contained the vial of blood and other items.

Appellant claims the murder charge against her should have been dismissed because the State negligently destroyed the blood sample. She asserts the blood sample was material evidence because there was conflicting testimony as to the cause of death. The doctor who performed the autopsy testified that the victim had been severely beaten about the head and chest, that she showed evidence of a brain concussion, and that the cause of death was the bruising of her heart caused by the beating. The evidence was that the victim had been killed by Appellant who had beaten her with a hammer and a fire extinguisher. Appellant claims the blood sample was material in that the autopsy showed the victim suffered from other conditions, most notably, a gangrenous colon which could be considered a fatal condition. However, there is no evidence from any of the medical witnesses that death was, in fact, caused by any factor other than the bruised heart resulting from the beating. Neither is there shown an expression by the expert medical witnesses that any of the blood samples were used to determine the cause of death nor, more importantly, that it was necessary to make such a determination. A pathologist called as an expert witness testified that were he to perform an autopsy on a person in the condition of the victim here, he might take blood samples to store for a possible future use but would see no significance in testing the blood samples to determine cause of death.

It is true the negligent destruction or withholding of material evidence by the police or the prosecution may present grounds for reversal. Turpin v. State (1980), 272 Ind. 629, 631, 400 N.E.2d 1119, 1121; Birkla v. State (1975), 263 Ind. 37, 42-43, 323 N.E.2d 645, 648, cert. denied, 423 U.S. 853, 96 S.Ct. 99, 46 L.Ed.2d 77. The defendant must establish materiality as a condition precedent to claiming a denial of due process where evidence is negligently lost or withheld by the government, except where the materiality is self-evident or a showing of...

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29 practice notes
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...is to provide a defendant with notice of the crime for which he is charged so that he is able to prepare a defense. Myers v. State, 510 N.E.2d 1360, 1366 (Ind.1987). In support of his argument, Wisehart contends that Count I, Murder, was deficient for failing to allege (1) that Wisehart bro......
  • Coates v. State, No. 485
    • United States
    • Indiana Supreme Court of Indiana
    • March 8, 1989
    ...to their common usage, do not mislead the accused or do not omit an essential element of the crime." Myers v. State (1987), Ind., 510 N.E.2d 1360, 1367. The information does not omit any essential element of robbery nor does it mislead the defendant as to what the State was 10. Sufficiency ......
  • Ludy v. State, No. 49S02-0303-CR-99.
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 2003
    ...349, 354 (Ind.1994); Morgan v. State, 544 N.E.2d 143, 148 (Ind.1989); Perry v. State, 541 N.E.2d 913, 917 (Ind.1989); Myers v. State, 510 N.E.2d 1360, 1368 In addition, the meaning of the legal term "uncorroborated" in this instruction is likely not self-evident to the lay juror. Jurors may......
  • Lockhart v. State, No. 34A05-9511-CR-432
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1996
    ...also benefitting from the assistance of court-appointed counsel, his motion was a request for hybrid representation. See Myers v. State, 510 N.E.2d 1360, 1363 (Ind.1987). Lockhart argues that he has an absolute right to hybrid representation under the Indiana Constitution. Both the United S......
  • Request a trial to view additional results
29 cases
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...is to provide a defendant with notice of the crime for which he is charged so that he is able to prepare a defense. Myers v. State, 510 N.E.2d 1360, 1366 (Ind.1987). In support of his argument, Wisehart contends that Count I, Murder, was deficient for failing to allege (1) that Wisehart bro......
  • Coates v. State, No. 485
    • United States
    • Indiana Supreme Court of Indiana
    • March 8, 1989
    ...to their common usage, do not mislead the accused or do not omit an essential element of the crime." Myers v. State (1987), Ind., 510 N.E.2d 1360, 1367. The information does not omit any essential element of robbery nor does it mislead the defendant as to what the State was 10. Sufficiency ......
  • Ludy v. State, No. 49S02-0303-CR-99.
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 2003
    ...349, 354 (Ind.1994); Morgan v. State, 544 N.E.2d 143, 148 (Ind.1989); Perry v. State, 541 N.E.2d 913, 917 (Ind.1989); Myers v. State, 510 N.E.2d 1360, 1368 In addition, the meaning of the legal term "uncorroborated" in this instruction is likely not self-evident to the lay juror. Jurors may......
  • Lockhart v. State, No. 34A05-9511-CR-432
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1996
    ...also benefitting from the assistance of court-appointed counsel, his motion was a request for hybrid representation. See Myers v. State, 510 N.E.2d 1360, 1363 (Ind.1987). Lockhart argues that he has an absolute right to hybrid representation under the Indiana Constitution. Both the United S......
  • Request a trial to view additional results

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