Clark v. StateClark v. State
- Reporters:
- ,
- Before:
- DeBruler
This is an appeal from a conviction for attempted murder, a class A felony,
I.
Defendant filed what was captioned a motion in limine, but what was in substance a motion to suppress, aimed at precluding the State from presenting any evidence based on a neurological examination conducted by Dr. Romain. The test was ordered by the trial court upon the State’s request, after the defendant interposed the defense of insanity based on his contention that he committed the act while in the grip of a blackout brought on by psychomotor epilepsy. This order was within the inherent authority of the trial court to guide and control the proceedings. Spears v. State, (1980) Ind., 403 N.E.2d 828. Although defense counsel stipulated that the defense had no objection to the procedure, the defendant now argues that since the test was not limited to the use of external electrodes attached to the scalp, as he expected, he did not consent to the electroencephalogram (EEG) procedure as administered, which involved the insertion of electrodes through the nasopharyngeal passages and caused him great pain. He also argues that the EEG procedure went beyond the permissible scope of a psychiatric examination and was a test to determine his guilt or inno *781 cence based on his own testimony, in violation of his Fifth Amendment privilege against self-incrimination, and his Fourth Amendment right to be free from unreasonable searches and seizures. Moreover, he argues, even if the use of the results of an EEG through the use of external electrodes is not a violation of the Fourth and Fifth Amendments, the results of an EEG using nasopharyngeal electrodes is such a violation, as well as a violation of the Fourteenth Amendment right to due process.
The claim that the defendant did not consent to the nasopharyngeal procedure and that it caused him great pain was made through an offer to prove, permitted by the trial court and not objected to by the State, in which defense counsel asserted that the defendant would testify that he felt great pain and protested at the time that he would not have taken the test, had he known that insertion of electrodes through the nasopharyngeal passage was involved. The offer to prove also included the assertion that the technician who administered the test would testify that the electrodes were on eight-inch long filaments, that the defendant said that the insertion caused him pain, and that the procedure was not a standard one but “a special test afforded extra.”
The trial court ruled that the evidence was admissible. Dr. Romain then testified that the EEG revealed that the defendant did not suffer from psychomotor epilepsy.
We need not address the various arguments defendant has marshalled against the admissibility of the neurological examination, because they are based on the unsupported assertion in his brief that he did not consent to the procedure. The substance of the offers to prove in no way vitiated the consent indicated by the defense to the State’s request for an order requiring the defendant to submit to a neurological examination. The offers to prove asserted nothing more than that, had the defendant known that nasopharyngeal electrodes would be inserted, he would not have consented. Neither the offer to prove what defendant’s testimony would have been, nor the offer to prove what the technician’s testimony would have been, contained assertions that the defendant actually protested the procedure. We therefore do no pass on the question of whether the procedure, if conducted over a defendant’s actual request that it be halted, would offend the concept of due process, as a compulsory stomach pumping procedure to gather evidence did in Rochin v. California, (1953) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, or was a permissible intrusion under the Fourth Amendment, as was a compulsory drawing of a defendant’s blood in Schmerber v. California, (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Neither do we pass on the question of whether a defendant’s lack of consent would be relevant in determining admissibility.
We note in passing, however that there is no merit to the claim that the use of evidence gathered from the use of naso-pharyngeal electrodes constituted use of “testimonial” or “communicative” evidence in violation of the privilege against self-incrimination secured by the Fifth Amendment to the United States Constitution. Defendant urges that the procedure amounted to an effort by the State to compel responses that were essentially “testimonial” or “communicative”, as in the case of a polygraph test. The privilege does not extend to the compulsory submission to purely physical tests, such as blood samples, fingerprinting, and voice exemplars, Allen v. State, (1981) Ind., 428 N.E.2d 1237; Frances v. State, (1974) 262 Ind. 353, 316 N.E.2d 364. Certainly the evidence obtained does communicate some information, but not in the sense contemplated by the privilege and its limits. See Schmerber v. California, supra, 384 U.S. at 759, n. 5, 86 S.Ct. at 1830-31.
II.
Over defendant’s objection, the State introduced Exhibit No. 7, the report of Indiana State Police Technician Goetz on the type of blood found on State’s Exhibit No. 5, the knife purportedly used by defendant in the attempted murder. Defendant con
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tends that the report was inadmissible hearsay because it was neither a public record covered under the provisions of
Concerning defendant’s distinction between autopsy reports and the kind of laboratory report at issue here, we do not find the point persuasive. The public records exception to the hearsay rule permits records prepared by an official pursuant to statutory command or required by the nature of the office, to be admitted as evidence, if properly certified or authenticated.
Defendant further contends that even if the laboratory report does qualify as a public record or business record exception, such an exception should not be allowed in a criminal trial because it deprives an accused of his constitutional right to confront witnesses against him. We have held that the “right to the confrontation of witnesses does not require that no hearsay may be introduced at trial. Dutton v. Evans, (1970) 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213.” Collins v. State, (1977) 267 Ind. 233, 236, 369 N.E.2d 422, 423 (Coroner’s report held properly admitted.).
III.
The defendant filed two motions to strike material included in the pre-sentence report. One motion was aimed at excluding a letter from Dr. Romain to the prosecuting attorney reporting on his conclusions following his interview with the defendant and the EEG. Dr. Romain’s opinion was that the defendant did not suffer from a seizure disorder of a psychomotor or any other type. The other motion was aimed at excluding references to past dismissals’ of criminal charges against the defendant. Both motions were denied.
Defendant argues that Dr. Romain’s letter was improperly considered because it was the fruit of evidence illegally obtained. Defendant also argues that
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Finally, he argues that the inclusion of the letter violates the confidentiality requirement regarding pre-sentence reports provided in
Defendant’s motion to strike Dr. Ro-main’s letter’ was premised only on the claim that it had been provided to the reception-diagnostic center without having been requested by the trial court. On appeal, however, he raises new claims not preserved, and therefore not available for review.
Regarding the motion to strike references to past dismissals of criminal charges, the issue has been resolved against defendant in Misenheimer v. State, (1978) 268 Ind. 274, 374 N.E.2d 523. Defendant relies on McNew v. State, (1979) Ind., 391 N.E.2d 607, in support of his claim, but that case held that a sentencing judge may not consider a previous acquittal as an aggravating circumstance, and is not apropos.
The conviction is affirmed.
GIYAN, C. J., and HUNTER, PRENTICE and PIVARNIK, JJ., concur.