Opinion
No. 86309
Decided May 24, 1967.
Criminal law — Inquiry into present sanity — How raised — Section 2945.37, Revised Code — Defense of not guilty by reason of insanity — Inquiry not required thereby — Application for commitment to Lima State Hospital — Section 2945.40, Revised Code — Delay by prosecutor in applying — Discretion of court.
1. The requirement of Section 2945.37, Revised Code, that the court shall proceed to examine into the question of the sanity of a person accused of crime "if it otherwise comes to the notice of the court that such person is not then sane" applies whenever in good faith it is stated to the court that such is the case.
2. The issue of present sanity of the defendant can be raised only in one of the ways provided in Section 2945.37, Revised Code.
3. Where the prosecuting attorney delays in making a motion under Section 2945.40, Revised Code, for the commitment of the defendant, charged with first degree murder, to Lima State Hospital for examination until four days before trial is scheduled, the court may properly refuse to order such commitment, subject to consideration of use of local psychiatric examination facilities, to which defendant's counsel do not object.
Mr. John T. Corrigan, prosecuting attorney, Mr. George J. Moscarino and Mr. Francis E. Sweeney, for plaintiff.
Mr. Robert W. Jones and Mr. Edward I. Stillman, for defendant.
Marion L. Page, Jr., was indicted on March 16, 1967, for murder in the first degree. On April 24, 1967, the presiding judge set the trial for May 22, 1967. The next day, April 25, 1967, defendant entered his plea of not guilty by reason of insanity.
The present motion, filed by the county prosecutor on May 18, 1967, is for an inquiry into present sanity under Section 2945.37, Revised Code, and also for the commitment of the defendant to Lima State Hospital under Section 2945.40, Revised Code.
Section 2945.37, Revised Code, provides as follows:
"If the attorney for a person accused of crime whose cause is pending in the Court of Common Pleas, before or after trial suggests to the court that such person is not then sane, and a certificate of a reputable physician to that effect is presented to the court, or if the grand jury represents to the court that any such person is not then sane or if it otherwise comes to the notice of the court that such person is not then sane, the court shall proceed to examine into the question of the sanity or insanity of said person, or in its discretion may impanel a jury for such purpose. * * *"
There being no suggestion of present insanity by defense counsel, and no representation by the grand jury; the only possible basis for involving the statute would be that:
"* * * it otherwise comes to the notice of the court that * * * [defendant] is not * * * [now] sane."
As indicated by the Supreme Court in Evans v. State (1930), 123 Ohio St. 132, these words mean that the examination must be conducted (at p. 140):
"* * * whenever in good faith it is stated to the court that the defendant at the time of trial is not then sane." (Emphasis supplied.)
In any given instance, whether or not it has been stated to the court that the defendant at the time of trial is not then sane is a question for the court to decide on a basis of the record. As said by the Supreme Court in State v. Smith (1931), 123 Ohio St. 237, 242:
"If upon arraignment and plea, the court regarded the representations of counsel * * * as a notice of insanity, its course was charted by * * * the Evans case, supra [requiring an examination into defendant's sanity]. But if the court did not so regard them, if they did not amount to * * * notice of insanity, its course was charted by Section 13442-4, General Code [regarding the right to proceed in the manner of a sane person]."
In the present case the county prosecutor was unable or unwilling to state to the court that the defendant is now insane and was unable to produce any witness who was able or willing to make such a representation. The most he would do was produce an expert witness, Dr. Gill, who said:
"I have no opinion. I haven't spent enough time with this man. I am in no position to give any opinion."
However, the record does indicate the relevant questions used by Dr. Gill in his examination of the defendant and shows that the defendant answered them intelligently and accurately. The defendant's appearance and demeanor in the courtroom tends to confirm the implication of sanity inherent in his answers to Dr. Gill's questions.
True, Dr. Gill did state that "further tests and examinations of the defendant are definitely in order." However, as revealed by his further testimony, Dr. Gill predicated this opinion not upon any observed implication or tendency toward present insanity but rather "in view of the fact that this man is up on a very serious offense." The statute, by its terms, does not provide for an inquiry into sanity merely because the offense is serious.
It has been argued that if a defendant pleads not guilty by reason of insanity at the time of the crime, an inquiry should be made at the time of trial to ascertain if he is then sufficiently sane to stand trial. However, the Legislature did not so provide; possibly because in the latter instance ( i. e. present insanity) the court considers the mental capacity of the defendant from an entirely different viewpoint than the first ( i. e. instanity at the time of the crime). 15 Ohio Jurisprudence 2d 657. In any event, the statute provides the manner in which the issue of present insanity can be raised, and the issue can not be raised except in the manner provided.
In the present case, neither the county prosecutor nor his witness, Dr. Gill, was willing or able to state that the defendant is insane. It would, therefore, be contrary to law to order an inquiry into present sanity. This is not a case like State v. Pealy (1947), 49 Ohio Law Abs. 282, 35 O. O. 549, where the prosecutor "suggested" insanity and a hearing was ordered. In the Pealy case the prosecutor accompanied his "suggestion" with a physician's certification that the defendant was not then sane and, as found by the court, he thereby brought it to the notice of the court that the defendant was insane.
The second part of the county prosecutor's motion requests that the defendant herein be sent to Lima State Hospital under Section 2945.40, Revised Code, which reads in part as follows:
"In any case in which insanity is set up as a defense * * * the court may commit the defendant to a local hospital, where the defendant shall remain under observation for such time as the court directs not exceeding one month. The court may in such case appoint one or more, but not more than three, disinterested qualified physicians, specialists in mental diseases, to investigate and examine into the mental condition of the defendant and testify at his trial or other hearing. * * *"
On or about April 24, 1967, the county prosecutor had notice that this case was set for trial on May 22, 1967, and a special venire called. On April 25, 1967, the prosecutor had notice that the defendant herein had filed a plea of insanity. At no time until May 18, 1967 — four days before the scheduled trial date — did the prosecutor make a request that the defendant be committed to Lima. By this time the court and some fifty or so good citizens summoned for the special venire plus defense counsel and the witnesses and expert witnesses for both sides had all adjusted their schedules to go forward on May 22nd. This court can not disregard the added expense and inconvenience to which they will be put if this motion is granted. Nor can the court allow dilatory trial preparation on the part of the county prosecutor to interfere with the progress of its docket. With well over a six-month backlog of cases on its docket and 31 other defendants also awaiting trial for first degree murder — and with indictments now pouring in at the approximate rate of 25 a day whereas the court's disposition rate has been around 10 cases a day — it is just not possible to accommodate the prosecutor in this regard.
On May 8, 1967, the county prosecutor made his first and only other request herein under Section 2945.40, Revised Code. That request was for the appointment of Dr. Gill to examine the defendant. The appointment was made the next day, May 9, 1967, and the prosecutor was advised, by the court, that additional appointments would then be made if he so desired. None was ever requested nor was the court advised, until late on May 17, 1967, that the prosecutor was not satisfied with the manner in which Dr. Gill's examination was proceeding.
The greater Cleveland area is replete with facilities where the defendant can be given every test and examination mentioned by the prosecutor's witness, Dr. Gill. Physicians, especially psychiatrists, available in Cleveland have standards as high as those available at Lima. The facilities and staff of Cleveland Metropolitan General Hospital have frequently been utilized for this purpose. Under the circumstances, consideration should be given to the use of such local facilities as are satisfactory from the standpoint of security and to the use of local physicians in such a manner as not to unduly interfere with the progress of the trial.
As indicated in State v. Bushong (1953), 159 Ohio St. 259, the sending of a person to an institution for the criminal insane is a serious matter. Some consideration should be given to this in weighing the prosecutor's motion, and properly so in view of the vigorous objection of defendant's counsel to Lima, which objection they do not make to any local hospital.
Taking everything into consideration, the court in its discretion believes that justice will be better served if the defendant is not committed to Lima State Hospital at this time. As indicated by the decision, rendered on May 18, 1967, this is without prejudice to any further motion or request the prosecutor may have under Section 2945.40, Revised Code, for examination at Cleveland Metropolitan General Hospital or otherwise and/or by any physicians available in the Cleveland area.
In view of the decision of the court herein, it is unnecessary to look into the possible effect of the recent extension of the Fifth Amendment upon the claimed right of the prosecutor to have the defendant committed to Lima for physchiatric interrogation, extended examination and "constant observation" for a period of thirty days. But see State v. Olson, 274 Minn. 225, 143 N.W.2d 69 and French v. District Court, 153 Colo. 10, 384 P.2d 268.