MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Nov 19 2015, 8:46 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian J. May Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Telly S. Bracey, November 19, 2015
Appellant-Defendant, Court of Appeals Case No.
71A04-1506-CR-621
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable J. Jerome Frese,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1305-FB-66
Brown, Judge.
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[1] Telly S. Bracey appeals his conviction for attempted robbery as a class B felony.
Bracey raises one issue which we revise and restate as whether the trial court
clearly erred in rejecting his insanity defense and finding him guilty of
attempted robbery. We affirm.
Facts and Procedural History
[2] On May 11, 2013, Larry Clifford took the South Shore train to South Bend and
noticed that Bracey was also onboard. After Clifford exited the train, Bracey
approached him and asked to borrow his phone, explaining that his phone was
not working and that he could not “get ahold of [his] ride.” Transcript at 23.
After using the phone, Bracey asked Clifford for a ride, offering him money for
gas, and Clifford agreed. The men entered Clifford’s pickup truck, and as they
started for Bracey’s grandmother’s house, they had a seemingly normal
conversation about Clay High School, the weather, and Bracey’s need for a
ride, but then Bracey pulled out a gun and said: “take me to your bank.” Id. at
26. Clifford observed a police cruiser and pulled up next to it, attracting the
attention of Officer Joseph Leszczynski of the South Bend Police Department.
Bracey reacted by throwing the gun onto the floorboard of Clifford’s truck, and
then tried to exit the truck but was blocked from doing so by Officer
Leszczynski’s police cruiser, and was detained. Other officers arrived and
found a handgun on the floorboard of Clifford’s truck, with its hammer pulled
back and four live .38 caliber rounds inside.
[3] On May 13, 2013, the State charged Bracey with attempted robbery as a class B
felony. On November 20, 2013, Bracey filed a motion for evaluation requesting
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that he be evaluated to determine his ability to understand the consequences of
statements made to investigators. The next day the court ordered mental
competency examinations to determine whether Bracey could understand the
proceedings and assist in the preparation of his defense, appointing Dr. Jennifer
Cummings, Ph.D. and Dr. Evert VanderStoep, M.D. The court received the
reports from the doctors on July 9, 2014. Dr. Cummings noted that Bracey
stated he heard voices from his deceased female cousin and opined that Bracey
was competent to proceed to trial. Dr. VanderStoep’s report noted that Bracey
stated he was in a conversation with his deceased female cousin at the time of
the attempted robbery and that he was “following a movie script in which a gun
was pointed at a victim and he learned ‘you get money that way.’” Appellant’s
Supplemental Appendix at 4. Dr. VanderStoep noted his belief that “[t]he
balance of evidence points to understanding he was insane at the time of the
crime, and he is unable to assist an attorney in his defense.” Id. at 5. He also
diagnosed Bracey with Moderate Mental Retardation and with simple
Schizophrenia.
[4] On January 31, 2014, the court ordered a third mental competency examination
by Dr. Linda Monroe, Ph.D. and later issued an order appointing her to further
evaluate whether, as a result of a mental disease or defect, Bracey was unable to
appreciate the wrongfulness of his conduct at the time he attempted to rob
Clifford. On April 4, 2014, Dr. Monroe filed her report noting that “[a]lthough
it at first seems unbelievable, Mr. Bracey was extremely consistent about his
report that he constantly experiences auditory and visual hallucinations of his
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cousin who was killed in 2009,” including hearing those voices directing him
what to do during the attempted robbery. Id. at 7. Dr. Monroe’s report
concluded that, based on those symptoms, Bracey was legally insane at the time
of the crime and that he was not currently competent to stand trial.1
[5] On April 17, 2014, the court held a competency hearing and reviewed the
reports, issued a commitment order finding that Bracey lacked the ability to
understand the proceedings or assist in the preparation of his defense, and
committed him to the Indiana Division of Mental Health. On June 24, 2014,
Bracey was admitted to Logansport State Hospital. At the time of his
admission, “he was well-groomed and expressed logical and pertinent
thinking,” and “[h]e described experiencing some hallucinations of a deceased
cousin’s voice beginning several years ago but that [those] experiences had
ceased approximately three months before his hospitalization at Logansport.”
Transcript at 53. Based upon his history and on the previous reports from Dr.
Monroe and Dr. VanderStoep, Bracey’s admitting physician diagnosed him
with major depression disorder with psychotic features.
[6] In the days following his admission, however, concerns arose regarding
whether Bracey actually suffered from an underlying psychotic disorder or
instead had feigned his symptoms of mental illness. Approximately four days
after his admission, he was documented as saying, “my cousin told me that if I
1
Although these reports were not formally admitted into evidence at trial, the court stated that it would
consider the reports, to which neither party objected.
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pled insanity, I wouldn’t go to jail.” Id. at 54. Within the first week of his
admission, Bracey explained to his attending psychiatrist that he had not
previously experienced auditory hallucinations or heard voices and “largely
admitted to feigning insanity to avoid prison and to be sent to a mental hospital
instead . . . .” Id. He also told hospital staff that he “just played crazy to get in
here.” Id. at 67. Throughout his hospitalization, he “remained objectively free
from symptoms of a major mental disorder,” and “[h]e continued to display
logical and pertinent thinking . . . .” Id. at 55.
[7] On August 22, 2014, Dr. Douglas Morris, M.D., met with Bracey to complete a
formal competency review at the hospital, and diagnosed him with a history of
malingering and with antisocial personality disorder. On August 25, 2014,
based on Dr. Morris’s evaluation, Logansport State Hospital filed
correspondence reporting that Bracey was presently competent to stand trial
and requesting that the court direct the sheriff to return him to the county jail.
[8] On January 15 and February 9, 2015, the court held a bench trial at which
evidence consistent with the foregoing was presented. At the outset, Bracey’s
counsel stipulated to the facts of the attempted robbery and that the police
reports would be admissible regarding the facts of the crime, and stated that
“the only issue in this case is whether or not Mr. Bracey was sane at the time of
the offense.” Id. at 15. Dr. Morris testified that, in his opinion, Bracey had
“feigned symptoms of mental illness . . . to avoid prosecution and gain access to
a mental hospital” but that “once here he decided that was not the tact that he
wished to take and therefore did not further feign these symptoms or engage in
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efforts that would lead to prolonged hospitalization.” Id. at 64. After Dr.
Morris’s testimony, Dr. Monroe was called as a witness by the court, and she
acknowledged that in her March 2014 report she had found Bracey to be insane
at the time of the offense based upon his claimed visual and auditory
hallucinations about his cousin. Dr. Monroe testified that “if it weren’t for the
fact that [Bracey] was describing being instructed to do this by an hallucinatory
figure, [she] would have thought he was not insane,” that based on the
information from Dr. Morris following Bracey’s hospitalization she had
changed her opinion regarding Bracey’s sanity at the time of the crime, and that
she believed that Bracey “was not legally insane at the time of the crime.” Id. at
91, 99.
[9] The court also called Dr. VanderStoep who testified that at the time he
evaluated Bracey he “had a hard time deciding whether or not [Bracey] was
actually following command hallucinations” or whether Bracey “was trying to
create something.” Id. at 110-111. Dr. VanderStoep testified that, after
reviewing Dr. Morris’s report, he was of the opinion that any hallucinations
Bracey may have experienced at the time of the crime were not command
hallucinations and that Bracey could appreciate the wrongfulness of his
conduct.
[10] The court found that Bracey “could appreciate the wrongfulness of his conduct
at the time of the offense,” and found him guilty as charged. Appellant’s
Appendix at 48. On March 10, 2015, Bracey was sentenced to fifteen years,
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with six years executed in the Department of Correction (“DOC”) and nine
years suspended.
Discussion
[11] The issue is whether the court clearly erred in rejecting Bracey’s insanity
defense. To be convicted of a criminal offense, the State must prove each
element of the offense beyond a reasonable doubt. Myers v. State, 27 N.E.3d
1069, 1074-1075 (Ind. 2015) (citing Ind. Code § 35-41-4-1(a) (2014)), reh’g
denied. “Criminal responsibility can be avoided if the defendant can
successfully raise and establish the ‘insanity defense.’” Id. at 1075 (citing
Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010), reh’g denied; Ind. Code § 35-
41-3-6(a)). To successfully assert this defense, an individual must prove by a
preponderance of the evidence: “(1) that he or she suffers from a mental illness
and (2) that the mental illness rendered him or her unable to appreciate the
wrongfulness of his or her conduct at the time of the offense.” Id. (quoting
Galloway, 938 N.E.2d at 708). Thus, proof of mental illness alone is
insufficient. Id. (citing Galloway, 938 N.E.2d at 708 (citing Weeks v. State, 697
N.E.2d 28, 29 (Ind. 1998))).
[12] It is for the trier of fact to determine whether the defendant appreciated the
wrongfulness of his conduct at the time of the offense. Id. (citing Thompson v.
State, 804 N.E.2d 1146, 1149 (Ind. 2004)). The defendant is in the position of
having to appeal a negative judgment. Id. A reviewing court “will reverse only
when the evidence is without conflict and leads only to the conclusion that the
defendant was insane when the crime was committed.” Id. (quoting Thompson,
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804 N.E.2d at 1149). The reviewing court “will not reweigh the evidence or
assess the credibility of witnesses but will consider only the evidence most
favorable to the judgment and the reasonable and logical inferences to be drawn
therefrom.” Id. (quoting Thompson, 804 N.E.2d at 1149 (citing Metzler v. State,
540 N.E.2d 606, 608-609 (Ind. 1989))).
[13] Bracey argues that Dr. Moore rendered an opinion only regarding Bracey’s
competency to stand trial and did not address the issue of insanity at the time of
the offense, and that accordingly it was error for the other doctors to change
their opinions regarding whether he was sane at the time of the offense based
thereon. He asserts that Dr. Moore did not offer any insight on Bracey’s ability
to appreciate the wrongfulness of his conduct and that claiming to be “faking it
may be very well consistent with a troubled mind at the time of the incident.”
Appellant’s Brief at 9. The State argues that the evidence is without conflict
that Bracey was legally sane at the time of the offense. It asserts that Bracey’s
arguments are merely a request to reweigh the evidence.
[14] The evidence presented reveals that, although Dr. VanderStoep and Dr.
Monroe had previously filed reports with the court stating that they believed
Bracey was insane when he attempted to rob Clifford, they both changed their
diagnoses based upon Bracey’s behavior and statements while at Logansport
State Hospital as reported by Dr. Morris. Specifically, Dr. Morris testified that
Bracey had stated while at the hospital that “my cousin told me that if I pled
insanity, I wouldn’t go to jail,” that Bracey “largely admitted to feigning
insanity to avoid prison and to be sent to a mental hospital instead,” and that he
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told hospital staff that he “just played crazy to get in here.” Id. at 54, 67. Dr.
Morris further testified that Bracey “remained objectively free from symptoms
of a major mental disorder,” and “[h]e continued to display logical and
pertinent thinking . . . .” Id. at 55. Dr. Monroe further testified that “if it
weren’t for the fact that [Bracey] was describing being instructed to do this by
an hallucinatory figure, [she] would have thought he was not insane” and that
she believed that Bracey “was not legally insane at the time of the crime.” Id. at
91, 99. Also, Dr. VanderStoep testified that he struggled at the time he filed his
report whether or not Bracey was faking his command hallucinations and that,
after reviewing Dr. Morris’s report, he was of the opinion that any
hallucinations Bracey may have experienced at the time of the crime were not
command hallucinations and that he could appreciate the wrongfulness of his
conduct.
[15] We are not persuaded that it was error for the court to consider the facts that
Dr. Monroe and Dr. VanderStoep changed their medical opinions based upon
the observations of Bracey at Logansport State Hospital and especially Bracey’s
admissions while there that he feigned insanity in order to avoid prison time.
We cannot say that the evidence is without conflict and leads only to the
conclusion that Bracey was insane at the time he attempted to rob Clifford.
Bracey’s arguments to the contrary are merely a request to reweigh the evidence
or judge the credibility of the witnesses, which we may not do. See Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). We conclude that the court did not
clearly err when it rejected Bracey’s insanity defense.
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Conclusion
[16] For the foregoing reasons, we affirm Bracey’s conviction for attempted robbery.
[17] Affirmed.
Riley, J., and Altice, J., concur.
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