State ex rel. Haskett v. Marion County Criminal Court, Division One

• Decision Date: 28 February 1968
• Docket Number: No. 1067S102,1067S102
• Citation: 250 Ind. 229,234 N.E.2d 636
• Parties: STATE of Indiana on the relation of David John HASKETT, Relator, v. The MARION COUNTY CRIMINAL COURT, DIVISION ONE, and the Honorable John T.Davis, Presiding Judge, Respondents.
• Court: Indiana Supreme Court

Page 636

234 N.E.2d 636

250 Ind. 229

STATE of Indiana on the relation of David John HASKETT, Relator, v. The MARION COUNTY CRIMINAL COURT, DIVISION ONE, and the

Honorable John T.Davis, Presiding Judge, Respondents.

No. 1067S102.

Supreme Court of Indiana.

Feb. 28, 1968.

Rehearing Denied April 9, 1968.

[250 Ind. 230] Ferdinand Samper, Indianapolis, for relator.

Noble R. Pearcy, Pros. Atty., Stanley B. Miller, Deputy Pros. Atty., for respondents.

ORIGINAL ACTION

ARTERBURN, Judge.

This is an original action to compel the respondent court to expunge and strike from its record an order made on September 20, 1966 against the relator 'to answer all questions put to him by physicians and each of them pursuant to statute.' This order results from proceedings to have the relator determined to be a sexual psychopathic person under the Acts of 1949, ch. 124, as amended by the Acts of 1959, ch. 356, being Burns' Ind.Stat.Anno. § 9--3401 et seq. The court had previously appointed two qualified physicians to examine the relator. The relator had previously been charged by affidavit with the criminal offense of 'peeping in house'.

The relator, by his petition, seeks to challenge the constitutionality of the Indiana law providing for the determination and declaration of a person charged with a sexual offense of being a sexual psychopathic person.

The specific section involved herein is Burns' Ind.Stat.Anno. § 9--3404 (1967 Cum.Supp.) which reads as follows:

'(a) Upon the filing of such statement by the prosecuting attorney the court shall, or if filed on behalf of the accused the court may, appoint two (2) qualified physicians to make a personal examination of such alleged criminal sexual psychopathic person, which physicians shall file with the court a written report of the results of their examination, together with their conclusions. Such reports shall be open to inspection by the accused and by legal counsel for the accused, but shall not be considered to be competent evidence in any other proceeding filed against the accused except in the hearing, as hereinafter provided, to inquire into the alleged psychopathy of the accused. The alleged psychopathic person who is examined by the two (2) physicians is required to answer the questions propounded by the physicians under penalty of contempt of court.

'(b) In the event that both of the examining physicians in their reports concluded that the person examined is a criminal sexual psychopath, then proceedings shall be had, as in this act (§§ 9--3401--9--3412) provided, to determine the psychopathy of such person. Such proceedings shall be had prior to a trial of such person upon the criminal offense with which he then stands charged, or prior to sentence if he then stands convicted and has not been placed on probation, or prior to the completion of any probationary sentence imposed.

'(c) Upon the filing of the reports of the two (2) examining physicians, the judge of the court shall examine the reports. If the statement containing the allegation of the psychopathy of the accused and the reports of the two (2) examining physicians are found to be in legal form, the judge shall fix a time and place for a hearing for the determination of the alleged psychopathy of the accused. The court shall order and direct the sheriff of the county to notify the accused of the nature of the proceedings and the time and place of the hearing. The judge may issue subpoenas for any witnesses who may have a knowledge of any facts relevant to the nature of the proceedings. At the time and place appointed, unless an adjournment to another time and place has been ordered, the judge shall proceed to hear such proceedings, and shall examine the witnesses under oath concerning the matter of the alleged psychopathy of the accused.

'(d) If, upon the conclusion of the hearing and examination, it shall appear to the judge that the person so alleged to be a criminal sexual psychopath is probably a criminal sexual psychopath, the judge shall commit such person to the division of mental health, such person to be confined by the division in an appropriate state psychiatric institution for an indeterminate period of not to exceed sixty (60) days, for the purpose of observation, evaluation and diagnosis of such person by the psychiatric staff of such institution. The superintendent of the institution shall, within sixty (60) days from the date of admission, file with court a written report of the findings, conclusions and recommendations of the psychiatric staff. Such report shall be open for inspection by the accused and by the legal counsel for the accused, but it shall not be deemed to be competent evidence in any other proceeding brought against the accused except in the proceeding to inquire into the alleged psychopathy of the accused.

'In the event the psychiatric staff in its report concludes that the accused person is a criminal sexual psychopath, the court shall then determine the question of the psychopathy of the accused person and shall enter an order and judgment in accordance with such finding and determination. If such person is found by the court to be a criminal sexual psychopath, the court shall in its order and judgment commit such person to the division of mental health, to be confined by the division in an appropriate state psychiatric institution until such person shall have fully and permanently recovered from such psychopathy.'

There is no dispute between the parties that the procedural steps were followed in order to invoke the authority of the court to act pursuant to the statute.

It is the contention of the relator that although the respondent was acting pursuant to the language of the appropriate statute, such language is unconstitutional and void and constitutes a violation of his privilege against self-incrimination and the information he will be required to give to the physicians will be used against him in a subsequent hearing where his alleged criminal sexual psychopathy is to be determined.

In support of this assertion relators call the attention of this court to two United States Supreme Court cases: Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Application of Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.

In Miranda v. State of Arizona, supra, we understand this case to emphasize the new rule for police interrogations was founded upon the privilege of an accused under the Fifth Amendment of the Constitution not to be compelled to incriminate himself. Under said rule there were four essential requirements: (1) the right to remain silent; (2) the effect of making a statement; (3) the right to an attorney; and (4) the right to an appointed attorney.

The facts in the Miranda case, by way of summary, were these: Miranda was taken into custody and after two hours of interrogation he executed a signed statement. He had not been advised that he had a right to have an attorney present during the questioning, but an introductory paragraph at the beginning of his written confession stated that he had made the confession voluntarily and with full knowledge of his legal rights, with the understanding that the statement could be used against him. The written confession was admitted into evidence over the objection of defense counsel. The Supreme Court reversed because Miranda was not in any way apprised of his right to consultation with an attorney and to have one present during the interrogation.

In the Gault case, a fifteen-year-old boy was arrested for making lewd and indecent remarks to a woman neighbor. He was held in a detention home until the following day, at which time a petition was filed against him indicating that he was under the age of eighteen and was a delinquent minor. The boy's mother was present at the hearing, but the complaining neighbor was not. No one was sworn at the hearing and no transcript or record was made. The mother of the juvenile indicated that the juvenile had said he dialed the number, but that a friend with him had made the lewd remarks. The hearing was concluded and the juvenile was released. The mother of the juvenile received a plain letter from the probation officer indicating a hearing was set for a specific date and at that time the juvenile was in the company of his mother and father. At this hearing a request by the mother to have the complaining witnesses present was denied by the court. The juvenile was committed for the period of his minority to the State Industrial School. Since no appeal was permitted by Arizona law, the juvenile filed a petition for a writ of habeas corpus in the state court, which was denied. On appeal, the United States Supreme Court reversed. Gault, supra.

In the case of People of the State of Illinois v. English (1964), 31 Ill.2d 301, 201 N.E.2d 455, the Illinois Supreme Court examined a similar question presented by the relator's petition. In this case a defendant was ordered to appear before two qualified psychiatrists for examination pursuant to the Illinois Sexually Dangerous Persons Act (Ill.Rev.Stat.1963, ch. 38, pars. 105--1.01 to 105--12). The defendant appeared before the psychiatrist and informed that he felt the compulsory examination was a violation of his constitutional rights. The court proceeded to hold the defendant in contempt of court and he appealed directly to the Supreme Court of Illinois. The court then extensively reviewed the authorities relating to this question:

'As we view the case the issues that must be considered are: (1) whether defendant is protected by the privilege against self-incrimination or by due process from submitting to the mental examination because the information he gives to the psychiatrists will be used in the commitment proceedings under that act; (2) whether he is privileged because the compelled information could be used in a subsequent criminal proceeding; and (3) if the defendant is privileged from...