Opinion
No. 40990
Decided June 26, 1968.
Criminal law — Insanity as defense — Evidence — Expert opinion of physician — First degree murder — Charge to jury — Punishment — Power of executive department to modify.
1. Where an accused interposes insanity as a defense for a criminal act, the expert opinion of a physician relative to the mental condition of the accused at the time of the crime is competent, although the observations upon which that opinion is based were obtained in part during the course of an examination called for by the court for an entirely different purpose.
2. Although it is proper and probably the better practice for the trial court, in a first degree murder case, to charge the jury that the punishment provided for a conviction of first degree murder with a recommendation of mercy is life imprisonment and to refrain from explaining the power of the executive department to modify that punishment by way of pardon or commutation and parole, the trial court may in its discretion, explain to the jury that power of the executive department to modify that punishment. ( State v. Meyer, 163 Ohio St. 279, approved and followed.)
APPEAL from the Court of Appeals for Hamilton County.
The appellant, Lee Arthur Henley, a nineteen-year-old garbage collector, was indicted by the Grand Jury of Hamilton County, Ohio, for first degree murder. The state's evidence at trial showed that on June 27, 1964, at about 2:30 in the afternoon, Henley entered the King Kwick Pony Keg and Store at 5207 Madison Road in Cincinnati, Ohio, and attempted to purchase six percent beer. Peter Mazes, Jr., the clerk on duty, asked Henley for some identification to prove that he was old enough to legally purchase six percent beer. Henley produced identification which was rejected as insufficient.
Henley, becoming enraged, cursed Mazes in front of other customers who were present. The store manager also examined Henley's identification and found it to be unsatisfactory. Henley continued to curse and was ushered out of the store.
Threatening the store employees by word and gesture, Henley went to his garbage truck and sped away. Returning fifteen minutes later, he entered the store and dared the management to throw him out. The store manager asked him to leave. Henley said, "You had better stay away, you are going to get hurt." The store manager said, "Why, do you have a knife?" Whereupon Henley said, "I don't need a knife," and pulled out a gun from underneath his shirt. Both Mazes and the manager ran for cover. The manager escaped into the storage room, but Mazes ran among the aisles, where he was stalked and shot in the back by Henley. The deceased subsequently collapsed and died, and Henley again sped off in the garbage truck.
Henley was arrested 35 or 40 minutes later by the police. While being taken to the police station, he told the police that he had shot the man in the grocery store. This confession was admitted at trial over the objection of defense counsel.
Henley pleaded not guilty, and not guilty by reason of insanity. His defense witnesses testified exclusively as to the unsoundness of his mind. As a rebuttal witness, the state called Doctor Wolodymyr Iwanowycz, a staff psychiatrist at Lima State Hospital. Doctor Iwanowycz had examined Henley when he was sent to Lima, pursuant to a pretrial suggestion of insanity. His testimony to the effect that Henley was sane at the time of the crime was received over the objection of defense counsel.
On June 30, 1965, the jury returned a verdict of guilty of murder in the first degree, without a recommendation of mercy. A motion for new trial was overruled. From that judgment of conviction and from the overruling of the motion for new trial, Henley appealed to the Court of Appeals. That court affirmed the judgment of conviction, and the cause is now before this court upon an appeal as of right and pursuant to the allowance of a motion for leave to appeal.
Mr. Melvin G. Rueger, prosecuting attorney, and Mr. Calvin W. Prem, for appellee.
Mr. Louis A. Ginocchio and Mr. Thomas Stueve, for appellant.
The appellant, hereinafter referred to as defendant, raises six assignments of error.
Under his first assignment of error, the defendant points out that the court sent him to Lima for the purpose of determining whether he was presently sufficiently sane to stand trial. He argues that this determination of present sanity is not admissible to prove his mental condition at the time of the crime. State v. Hagert, 144 Ohio St. 316. We believe this argument is beside the point. The determination of present sanity, and the evidence pertaining exclusively to it, was never introduced. Doctor Iwanowycz went beyond his immediate duty in this case and attempted to discover the state of Henley's mental health on the date of the crime, three months earlier. To this end, he ordered a number of extra tests to be given Henley. These tests were of little relevance as to his present mental state, but were important in determining his past mental condition. The doctor testified that these tests, and his observations made at the time, were a sufficient basis for him to conclude that there was no history of psychosis and that Henley was sane at the time of the commission of the crime. We fail to see how the admission of this opinion conflicts with the Hagert case, supra, which holds only that a finding of present sanity is not admissible to rebut evidence supporting the defense of insanity.
The defendant argues, under his second assignment of error, that the opinion of Doctor Iwanowycz was improper in that it was based in part upon a written report of one Doctor Leist, a psychiatrist at Boys Industrial School, which had been prepared three years earlier when defendant was an inmate of that school. The bill of exceptions does not support this argument. Doctor Iwanowycz testified that he based his opinion in part upon the lack of history of serious mental illness. The report of Doctor Leist supported this conclusion that there was no history of mental illness, since its results were negative, but Doctor Iwanowycz testified that he came to this conclusion, and formed his opinion concerning the mental condition of defendant at the time of the crime, before he read the report of Doctor Leist. Reference to this report may have been hearsay which should have been excluded, but we do not think it was prejudicial in these circumstances.
It is at least arguable that the reference to this report was used to prove the lack of history of mental disease, and not to prove the truth of its findings. In this situation, the reference would not constitute hearsay.
The third assignment of error concerns a part of the instructions on the recommendation of mercy in which the court informed the jury that if Henley were given a life sentence he could not be granted a parole, but he could be pardoned or his sentence could be commuted by the Governor.
This segment of the instructions is substantially the same as that considered in State v. Meyer, 163 Ohio St. 279, and we believe the question raised by the defendant as to its propriety is disposed of by the first paragraph of the syllabus of the Meyer case, which reads as follows:
"Although it is proper and probably the better practice for the trial court, in a first degree murder case, to charge the jury that the punishment provided for a conviction of first degree murder with a recommendation of mercy is life imprisonment and to refrain from explaining the power of the executive department to modify that punishment by way of pardon or commutation and parole, the trial court may in its discretion explain to the jury that power of the executive department to modify that punishment."
The fourth matter assigned as error is the refusal of the trial court, to give the instructions on temporary insanity requested by the defendant. We find no error in this refusal because the three sentences of the instruction on temporary insanity, requested by the defendant, did not add anything not covered in the charge. They dealt with the fact that insanity need not be of long duration, but the charge given adequately covered this point in emphasizing that insanity at the time the act was committed would excuse the act. In a criminal case it is not error to refuse a requested instruction covered in the general charge. Bond v. State, 23 Ohio St. 349.
The fifth assignment of error concerns the refusal of the trial court to strike the issue of murder in the first degree. The appellant asserts that the evidence contradicts premeditation. In light of the facts of this case, this assertion is clearly frivolous. There is, to say the least, ample evidence from which the jury could reasonably find the element of premeditation.
The last assignment of error concerns the admission of the defendant's confession which was made to officer MacCullough on the way to the police station. This case came to trial after the decision in Escobedo v. Illinois, 378 U.S. 478, but before the decision in Miranda v. Arizona, 384 U.S. 436, so it is clear that the Miranda requirements are inapplicable. Johnson v. New Jersey, 384 U.S. 719. Defendant contends that his confession was inadmissible under the Escobedo case because he was not effectively warned of his constitutional right to remain silent. On this matter, the undisputed testimony of officer MacCullough was as follows:
"Well, after I took him over to King Kwik, I and Sergeant Finn, and the people identified him, then I told Lee, I said, Lee, anything you say to me from now on can be used for or against you in court. According to your constitutional rights you don't have to say anything."
There is no assertion that defendant ever requested counsel, and there is nothing indicating that the confession was otherwise involuntary. Consequently, we find no error in its admission into evidence. State v. Carder, 9 Ohio St.2d 1.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.