Phelan v. State, No. 279S55
| Docket Nº | No. 279S55 |
| Citation | 273 Ind. 542, 406 N.E.2d 237 |
| Case Date | June 26, 1980 |
| Court | Supreme Court of Indiana |
Page 237
v.
STATE of Indiana, Appellee (Plaintiff Below).
[273 Ind. 543] Bruce S. Cowen, Deputy Public Defender, Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
PRENTICE, Justice.
This is an appeal from a conviction of two counts of Murder in the First Degree. Ind.Code § 35-13-4-1 (Burns 1975). Defendant (Appellant) raises the following issues for our consideration:
(1) Whether the trial court committed reversible error by allowing a court-appointed physician to testify during the State's case in chief.
(2) Whether the Defendant's right against compulsory self-incrimination was violated when court-appointed physicians were allowed to testify to incriminating statements made by him during compulsory psychiatric examinations.
Page 238
(3) Whether the trial court committed reversible error by admitting into evidence items seized pursuant to the execution of a search warrant.
On April 17, 1977, Defendant's parents were murdered in their Ft. Wayne apartment. On June 21, 1977, Defendant was indicted for those murders. He subsequently pled not guilty by reason of insanity, and pursuant to Ind.Code § 35-5-2-2 (Burns 1975), the trial court appointed three competent and disinterested physicians to examine the Defendant. Thereafter, trial was had to the court, a jury trial having been waived. The Defendant was found guilty on both counts and sentenced to life imprisonment. We affirm.
Immediately prior to the close of the State's case in chief, two of the court-appointed physicians were called to the stand, as a matter of accommodation to them. The Defendant objected to the calling of the first physician, on the grounds that the physician's testimony would violate the Defendant's doctor-patient privilege and that such irregular order of proof was in derogation of Ind.Code § 35-5-2-2 (Burns 1975), as construed by our decision in Henderson v. State, (1954) 233 Ind. 598, 122 N.E.2d 340.
This court has repeatedly held that a Defendant who pleads not guilty [273 Ind. 544] by reason of insanity waives the doctor-patient privilege as to all physicians who might testify at trial. See, e. g., Bailey v. State, (1976) 264 Ind. 505, 346 N.E.2d 741; Lockridge v. State, (1975) 263 Ind. 678, 338 N.E.2d 275; Summerlin v. State, (1971) 256 Ind. 652, 271 N.E.2d 411.
Ind.Code § 35-5-2-2 (Burns 1975) provides:
At the trial of such cause, evidence may be introduced to prove the defendant's present sanity or insanity, or his sanity or insanity at the time at which he is alleged to have committed the act charged in the indictment or information. When an insanity defense is pleaded, the court shall appoint two (2), or three (3), competent disinterested physicians to examine the defendant, and to testify at the trial. Such testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of medical experts employed by the state and by the defense, if any. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such medical witnesses. (Emphasis added)
Thus, the trial court erred in allowing the court-appointed physician to testify during the State's case in chief over the Defendant's objection. See Henderson v. State, (1954) 233 Ind. 598, 122 N.E.2d 340. However, we do not believe that it prejudiced the Defendant in this case. "The mere fact that the evidence presented out of order was not in defendant's favor is insufficient to make out a case of prejudicial error." Blackburn v. State, (1973) 260 Ind. 5, 25, 291 N.E.2d 686, 698, appeal dismissed, 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152. The record and the...
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Watt v. State, No. 2-1178A382
...may not later be attacked. See Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667; Phelan v. State (1980), Ind., 406 N.E.2d 237; Mata v. State (1932), 203 Ind. 291, 179 N.E. 916. Because the request for a warrant is necessarily made ex parte, the most basic notions of du......
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Johnson v. State, No. 1282S500
...and then rely upon a different objection Page 910 on appeal. Hernandez v. State, (1982) Ind., 439 N.E.2d 625; Phelan v. State, (1980) 273 Ind. 542, 406 N.E.2d Defendant Lingler claims the trial court erred in regard to the habitual offender proceeding against him. He first claims the trial ......
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Head v. State, No. 780S209
...The argument has been waived, however, for defendant did not tender this specific objection at trial. Phelan v. State, (1980) Ind., 406 N.E.2d 237; Carman v. State, (1979) Ind., 396 N.E.2d Defendant maintains that various instances of prosecutorial misconduct operated to deny him a fair tri......
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Snyder v. State, No. 2-783A227
...been invalid due to the illegal information contained therein." (Emphasis added.) 440 N.E.2d at 1101-2. In Phelan v. State, (1980) Ind., 406 N.E.2d 237, where the charge was made that the search warrant was issued upon an affidavit containing a knowingly false statement, the court "In order......
-
Watt v. State, No. 2-1178A382
...may not later be attacked. See Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667; Phelan v. State (1980), Ind., 406 N.E.2d 237; Mata v. State (1932), 203 Ind. 291, 179 N.E. 916. Because the request for a warrant is necessarily made ex parte, the most basic notions of du......
-
Johnson v. State, No. 1282S500
...and then rely upon a different objection Page 910 on appeal. Hernandez v. State, (1982) Ind., 439 N.E.2d 625; Phelan v. State, (1980) 273 Ind. 542, 406 N.E.2d Defendant Lingler claims the trial court erred in regard to the habitual offender proceeding against him. He first claims the trial ......
-
Head v. State, No. 780S209
...The argument has been waived, however, for defendant did not tender this specific objection at trial. Phelan v. State, (1980) Ind., 406 N.E.2d 237; Carman v. State, (1979) Ind., 396 N.E.2d Defendant maintains that various instances of prosecutorial misconduct operated to deny him a fair tri......
-
Snyder v. State, No. 2-783A227
...invalid due to the illegal information contained therein." (Emphasis added.) 440 N.E.2d at 1101-2. In Phelan v. State, (1980) Ind., 406 N.E.2d 237, where the charge was made that the search warrant was issued upon an affidavit containing a knowingly false statement, the court "In ......