stop not justified based upon individual’s departure from suspect’s apartment where there was “no testimony that the individual who left the apartment physically resembled the person who was the object of the 5 search warrant.”
How later courts described this case
- stop not justified based upon individual’s departure from suspect’s apartment where there was “no testimony that the individual who left the apartment physically resembled the person who was the object of the 5 search warrant.”
Written by the judges who cited it.
The opinion
Dyke, Judge,
concurring.
I agree that the determination that appellant is a sexual predator should be reversed and remanded for a new hearing because there was insufficient evidence without consideration of the trial transcript. The majority strongly suggests that the trial court erred in refusing a court-ordered psychiatric evaluation because it prevented appellant from presenting evidence. Whether the trial court failed to consider all the relevant evidence and whether an indigent defendant is entitled to a court-ordered psychiatric evaluation to prove he is not a sexual predator are two entirely separate issues. The latter issue was never raised at trial because appellant requested a psychiatric evaluation to determine whether he was incompetent. Appellant did not argue that a psychiatric evaluation would help him prove that he was not a sexual predator.
The extent of the right to a court-appointed psychiatrist to prove factual issues in a sexual predator determination is an important issue of first impression. This issue was not raised at trial or briefed on appeal. It is improper for this court to rule upon this issue, particularly when the parties were not given an opportunity to brief the matter. See
State v. Casalicchio
(1991), 58 Ohio St.3d 178, 184 , 569
*649
N.E.2d 916, 922-923 (Resnick, J., concurring in part),
C. Miller Chevrolet, Inc. v. Willoughby Hills
(1974), 38 Ohio St.2d 298 , 67 O.O.2d 358 , 313 N.E.2d 400, fn. 3 ;
State v. Hylton
(1991), 75 Ohio App.3d 778, 783 , 600 N.E.2d 821, 824 .
It was not plain error for the court to deny a psychiatric evaluation requested for the purpose of gathering factual evidence. Whether the court must provide an indigent defendant with a psychiatric evaluation to prove factual issues requires a balancing of the burden to the state and the risk of error in denying the assistance. See
Ake v. Oklahoma
(1985), 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 . The extent of this right in a sexual predator case is unclear. For the guilt phase of a criminal case, a court-appointed psychiatrist is required only if sanity is a significant factor, and it is reasonably probable that the psychiatrist’s testimony would aid in the defense. See
Ake, supra; State v. Powell
(1990), 49 Ohio St.3d 255 , 552 N.E.2d 191 . In a capital sentencing proceeding, a court-appointed psychiatrist is necessary to counter only psychiatric evidence of future dangerousness presented by the state.
Powell, supra,
at 258 , 552 N.E.2d at 195-196 . In a sexual predator determination hearing, the due process rights are akin to those of a sentencing hearing. See
State v. Ward
(1999), 130 Ohio App.3d 551 , 720 N.E.2d 603 . Even if the standard of the guilt phase is used, it is unclear in this case whether there is a reasonable probability that a psychiatric evaluation would prove that appellant was not a sexual predator. Therefore, we cannot say that plain error occurred. In any case, this issue should not be ruled upon because the parties had no opportunity to brief the issue.
Whether the trial court erred in denying appellant’s motion for a psychiatric evaluation to determine incompetence is a moot issue, given that the sexual predator determination is reversed. I will note that in a probation hearing, there is a due process right to a competency hearing when there is a substantial basis for the suggestion that appellant is incompetent. See
State v. Bell
(1990), 66 Ohio App.3d 52 , 583 N.E.2d 414 ;
State v. Qualls
(1988), 50 Ohio App.3d 56 , 552 N.E.2d 957 ;
Qualls, supra.
If the defendant is incompetent to understand the proceedings, the due process rights to be heard, present witnesses, and confront witnesses are essentially rendered void.
Id.
In a sexual predator hearing, the due process rights are similar to a probation revocation hearing. See
Ward, supra;
R.C. 2950.09(B)(1). It is in the discretion of the trial judge whether a competency evaluation is needed.
Qualls, supra.
It is not necessary to determine whether the trial court erred in this regard because the issue is moot.