State v. Katsoulis
| Decision Date | 30 January 1967 |
| Docket Number | Cr. 352 |
| Citation | 148 N.W.2d 269 |
| Parties | STATE of North Dakota, Plaintiff, v. George KATSOULIS, Defendant. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Whenever on a prosecution by indictment or information the existence of insanity or mental defect on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause, the court may commit the defendant to the proper institution for observation and examination.
2. A writ of certiorari shall be granted by the supreme court or district court when an officer, board, tribunal, or inferior court has exceeded the jurisdiction of such officer, board, tribunal, or inferior court, as the case may be, and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when, in the judgment of the court, it is deemed necessary to prevent miscarriage of justice. § 32--33--01, N.D.C.C.
3. Except as otherwise provided by law, the review upon a writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer has pursued regularly the authority of such court, tribunal, board, or officer. § 32--33--09, N.D.C.C.
4. The plea of not guilty puts in issue every material allegation in the indictment or information. § 29--14--23, N.D.C.C.
5. All matters of fact tending to establish a defense other than the defense of a former judgment of conviction or acquittal of the offense charged or the defense of once in jeopardy may be given in evidence under the plea of not guilty. § 29--14--24, N.D.C.C.
6. Under a plea of not guilty, evidence may be submitted in support of the defense of insanity.
7. When a defendant entered a plea of not guilty to the charge of having committed the crime of murder in the second degree, the State informed the trial court that the defendant had received psychiatric treatment at the State Hospital, a federal hospital, and a county facility, and the State thereafter moved that the trial court commit the defendant to the State Hospital for observation and examination to determine the existence of insanity or mental defect on the part of the defendant at the time of the alleged commission of the offense charged, the trial court did not exceed its jurisdiction when it ordered such an examination.
8. The constitutionality of a statute may not be considered in a review under a writ of certiorari.
9. The Supreme Court is not authorized to give advisory opinions and will not decide academic questions or propositions that have become abstract because of events occurring subsequent to the commencement of the action or because lapse of time prevents the rendering of effective relief, except when questions of great public interest involve the authority and power of public officials and the real merits of the controversy remain unsettled.
10. For reasons stated in the opinion the writ of certiorari previously issued by this court is quashed and its accompanying injunction is terminated.
John A. Alphson, State's Atty., and Robert A. Alphson, Asst. State's Atty., Grand Forks, for plaintiff.
Edward C. Gillig, Grand Forks, for defendant.
By information dated October 10, 1966, the defendant, George Katsoulis, was charged with having committed the crime of murder in the second degree. On being informed that Mr. Katsoulis was without funds to employ an attorney, the presiding judge, the Honorable Harold M. Hager, appointed Edward C. Gillig as Mr. Katsoulis's attorney.
On October 13 Mr. Katsoulis filed an affidavit of prejudice in which he alleged that he had reason to believe that he could not have a fair and impartial trial before Judge Hager, and, as a result thereof, the Supreme Court designated the Honorable Hamilton E. Englert.
On October 28, before Judge Englert, with his attorney, Mr. Gillig, present, Mr. Katsoulis entered a plea of not guilty to a charge of having committed the crime of murder in the second degree.
At the same time the State moved that the court commit Mr. Katsoulis to the State Hospital at Jamestown for an examination pursuant to §§ 29--20--01 and 29--20--03, N.D.C.C. As the trial court was of the opinion that there was no basis for an examination pursuant to § 29--20--01, and as counsel for the defendant indicated that he would perhaps know in ten days whether the defense of insanity or mental defect as of the time of the alleged commission of the crime would be an issue or defense, the court continued the matter until November 7.
When the court convened on November 7, counsel for Mr. Katsoulis informed the court that he still had not had time to decide if the defense of insanity as of the time of the commission of the alleged offense would be asserted. However, he resisted the State's motion, saying that as the defense had not been raised, it was not yet an issue in the case, and that therefore the State's motion should be denied. He said that both Mr. Katsoulis and his wife had received some psychiatric treatment in the past but asserted that this fact did not necessarily raise the defense of insanity as an issue.
It was his position that insanity could not be an issue unless it were raised by the defendant. The State, however, contended that the issue could be raised by the State, and that the State need not wait until the defense of insanity was asserted at the trial. The State asked that the court take notice of the fact that Mr. Katsoulis had been a patient at the State Hospital at Jamestown and at a federal institution for psychiatric care, and that he had been treated at the county agency known as the Northeast Regional Mental Health and Retardation Service Center.
The State asserted that the examination called for under § 29--20--03 would take three weeks, and that therefore the State could not wait until the defendant offered evidence in support of such a defense during the trial of the lawsuit before it made the motion for an examination pursuant thereto. The State also informed the court that defense counsel had read psychiatrists' reports to him over the telephone, and that he had indicated that insanity might be an issue. The State contended that with that notice it was the State's duty to bring this information to the court's attention so that the court could act timely under § 29--20--03. Defense counsel argued that committing the defendant to the hospital under § 29--20--03 would be a 'neat and cute' way to try to get around the constitutional right of the defendant to remain silent.
At the request of the defense counsel that the defendant be given additional time to determine whether the defense of insanity would be asserted, the court postponed its decision on the motion until November 10. At the same time the trial court indicated that it would grant the defendant's motion for a change of venue and would transfer the case from Grand Forks County to Barnes County. An order to that effect was executed by the trial court on November 14.
On November 10 defense counsel filed a waiver of the defense of insanity. The waiver, however, was made under protest.
On November 12 the trial court ordered that Mr. Katsoulis be transported to the State Hospital for observation and examination pursuant to § 29--20--03, with respect to the existence of insanity or mental defect on the part of the defendant at the time of the alleged commission of the offense charged. The court also ordered that the proper officer of the State Hospital prepare a written report regarding the mental condition of the defendant so far as it indicated his mental condition at the time of the alleged offense.
Pursuant to that order Mr. Katsoulis was transported by the Sheriff of Grand Forks County to the State Hospital at Jamestown for observation and examination.
In the court's order changing the place of trial the court, apparently believing that the examination would be completed by then, ordered the Sheriff of Grand Forks County to convey the defendant into the custody of the Sheriff of Barnes County on December 10.
On December 2 Mr. Katsoulis filed with this court an application for a writ of certiorari, alleging that the trial court, in making the order committing Mr. Katsoulis to the State Hospital for examination, exceeded its jurisdiction.
On the same date this court ordered that a writ of certiorari issue. The writ issued commanded the trial court to certify and return to this court on December 9 a full, true, and complete transcript of the record and proceedings in the action, so that it could be reviewed by this court and proper action could be taken. In the meantime the trial court was ordered to desist from any further proceedings in the matter to be reviewed.
By letter dated November 30, 1966, the Superintendent of the State Hospital informed the trial court that Mr. Katsoulis refused to cooperate and that, in view of that fact, he recommended that Mr. Katsoulis be returned to Grand Forks to await trial. The body of his letter follows:
In accordance with the Court Order in reference to the above named, I wish to inform you that George Katsoulis was admitted to this hospital on 11--14--66. During the time that he has remained in this hospital, he has consistently and categorically refused to cooperate with any form of psychiatric or psychological evaluation. He has repeatedly stated that he refuses to make any statements on the grounds that he may incriminate himself and therefore believes that his hospitalization here and any attempt at psychiatric evaluation is contrary to his constitutional rights. In view of this situation, I recommend that he be returned to Grand Forks to await trial. I regret that under these circumstances, no conclusion regarding his mental condition at the time of a crime could be reached.
Apparently on receipt of this letter the trial court, on December 2, ordered the Sheriff of Grand Forks County to forthwith return...
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