Morgan v. State, 981S247

• Citation: 440 N.E.2d 1087
• Decision Date: 20 October 1982
• Docket Number: No. 981S247,981S247
• Parties: Jimmy Wayne MORGAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1087

440 N.E.2d 1087

Jimmy Wayne MORGAN, Appellant, v. STATE of Indiana, Appellee.

No. 981S247.

Supreme Court of Indiana.

Oct. 20, 1982.

John C. Wood, Howard County Deputy Public Defender, Kokomo, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

The defendant-appellant, Jimmy Wayne Morgan, was convicted by a jury of theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns Supp.1982), and was found to be an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1982). He was sentenced to a term of four years for the theft conviction and received an additional thirty year term on the habitual offender finding. Defendant raises several issues in this direct appeal:

(1) Whether the trial court erred in denying defendant's motion for transcripts of prior proceedings.

(2) Whether the trial court erred in denying defendant's requests for continuances to depose several of the State's witnesses.

(3) Whether the trial court erred in denying defendant's motion for judgment on the evidence because of a variance between the information charging defendant with being an habitual offender and the proof adduced at his trial on that charge.

(4) Whether there was sufficient evidence to support the theft conviction.

(5) Whether proof of prior convictions used to support an habitual offender finding may consist solely of parol testimony.

I.

The defendant filed a pre-trial "Motion for Transcript of Related Proceedings/Motion to Dismiss Underlying Felony on Count II". In his motion, he requested the production at public expense of the "transcript of Morgan's trial held in the Howard Superior Court, Division I, Cause Number 1124" as well as of the "transcript of Morgan's trial held in the Howard Circuit Court, Cause Number 5203." The trial judge denied this motion. Defendant contends that his indigence prevented him from obtaining these transcripts and that he was denied due process of law by not being afforded the opportunity to investigate the "legality and propriety" of the prior convictions used for enhancement of his sentence under the habitual offender statute.

A defendant may raise as a defense in a proceeding under a recidivist statute the asserted invalidity of those prior convictions used to enhance his punishment if he can show, for instance, that he was not adequately represented by counsel or knowingly and intelligently waived such representation at the time of these convictions. Burgett v. Texas, (1967) 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319; Hall v. State, (1980) Ind., 405 N.E.2d 530. Since such attack may be available in the case of a prior conviction that is constitutionally infirm, existing court records reflecting such prior proceedings should be made available to indigent defendants upon a proper request. Cf. Ind.R.Crim.P. 10 and 11. In the instant case, however, the trial court properly denied defendant's request for transcripts of his previous "trials" since his prior convictions were entered upon guilty pleas, and no trials were held. Moreover, there is much material in an entire trial transcript which has no potential pertinence to showing a constitutionally infirm conviction. Defendant's motion to produce transcripts was correctly denied by the trial court.

II.

Defendant next contends that he should have been granted the continuances he requested at trial to depose several of the State's witnesses. Defendant's pre-trial motion for discovery, granted by the trial court, requested, inter alia, a list of the names and addresses of witnesses who the State planned to use in its prosecution of this case. The State made its entire case file, including the informations filed on both charges, available to the defendant. Endorsed as "witnesses" on the information filed on the theft charge were Joseph Wainwright, Thomas and Tammara Barlow and Brian Newlon. The name of Fred G. Osborn appeared on the information filed on the habitual offender charge.

As a supplement to the discovery of the State's complete file, the deputy prosecuting attorney sent defendant's counsel a letter listing several additional possible witnesses. Defendant asserts that he should have been granted the continuances he requested at trial to depose those witnesses called to testify who were listed on the informations but not noted in the deputy prosecuting attorney's letter.

It is settled that in the absence of a paramount interest in nondisclosure, the identity of the State's witnesses should be disclosed, and if the State fails to disclose its witnesses, a proper remedy is a continuance. Anderson v. State, (1979) Ind.App., 393 N.E.2d 238, reh. denied (1979); Butler v. State, (1978) Ind.App., 372 N.E.2d 190. Here, however, there was no failure to disclose any of the witnesses called by the State and objected to by defendant at trial. Continuances were requested to depose Wainwright, the Barlows, Newlon and Osborn, all of whom were listed on the charging instruments. The letter sent by the deputy prosecuting attorney and allegedly relied upon by the defendant as a complete list of possible witnesses did not purport to be an exclusive listing. There was, and could be, no contention that defendant's counsel was surprised by these witnesses or "compelled to manuever in a factual vacuum." Johns v. State, (1968) 251 Ind. 172, 240 N.E.2d 60. Thus, the trial court's denial of defendant's request for continuances to depose those witnesses listed on the charging informations made available to him prior to trial was not error.

III.

Defendant next argues that the variance between the information on the habitual offender charge, which indicated that one of defendant's prior convictions (to be used to support enhancement of his sentence under Ind.Code Sec. 35-50-2-8) was for robbery, and the proof introduced at trial, which showed that defendant's prior conviction was for armed robbery, was fatal and that therefore there was no sufficient evidence to find defendant to be an habitual offender. He contends that his motion for judgment on the evidence on this charge should have been granted.

There is no doubt that there was a variance here. The information charging the defendant with being an habitual offender states in part that "on or about the 26th day of June, 1969, in Cause No. 5203, Circuit Court, Howard County, Indiana, the defendant, Jimmy Wayne Morgan, was convicted of a felony, to-wit: Robbery." The testimony proffered at trial by the prosecutor and assigned defense counsel who had been involved with that case showed that defendant had pleaded guilty to and been sentenced for armed robbery.

This variance, however, does not require reversal. Defendant could not claim to have been misled in his defense against the allegation of habitual criminality by this variance. The date, court and cause number alleged were all identical. Defendant himself referred to his armed robbery conviction as a robbery conviction in a memorandum in support of his pre-trial motion to dismiss. Defendant has shown no unfairness caused by this variance, and there is no reversible error.

IV.

Defendant also contends that there was insufficient evidence to support the verdict of the jury on the theft conviction. Ind.Code Sec. 35-43-4-2(a) provides:

"A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a class D felony."

The record shows that there was a fire at 1207 South Main Street in Kokomo, Indiana on the morning of May 24, 1980. At approximately 6:25 that evening, Thomas and Tammara Barlow, who lived next door to the 1207 South Main property, noticed a man knocking aluminum window frames out of the second story of the burned house. Defendant was seen on the ground picking up the pieces of frames and loading them into a pick-up truck. Thomas Barlow approached the two men, and upon determining that they were not the owner's sons, returned to his house to call the police. At that point, defendant and the other man drove away in the truck. The owner of the property further testified that he had not given anyone, including the defendant, permission to remove anything from the building.

The defendant's specific contention is that there was insufficient evidence presented that the owner of the window frames was deprived of their use or value. In reviewing claims of insufficient evidence, this Court neither weighs the evidence nor resolves questions of credibility, but only looks to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. If from that viewpoint there was evidence of probative value from which a reasonable trier of fact could conclude that a defendant was guilty beyond a reasonable doubt, we will affirm the conviction. Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890;...