Wiseheart v. State

• Decision Date: 28 April 1986
• Docket Number: No. 1184S449,1184S449
• Citation: 491 N.E.2d 985
• Parties: William Earl WISEHEART, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 985

491 N.E.2d 985

William Earl WISEHEART, Appellant, v. STATE of Indiana, Appellee.

No. 1184S449.

Supreme Court of Indiana.

April 28, 1986.

Michael J. McDaniel, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

In countless cases this Court has approved the presentation of evidence by the State notwithstanding violations of pretrial orders. Today the shoe is on the other foot.

Appellant William Wiseheart was tried by a jury and convicted of child molesting, a class B felony, Ind.Code Sec. 35-42-4-3(a) (Burns 1985) and of a second count of child molesting, a class C felony, Ind.Code Sec. 35-42-4-3(b) (Burns 1985). The trial court imposed consecutive sentences of twenty years for the class B felony and eight years for the class C felony.

Appellant raises three issues in this direct appeal:

(1) Whether the trial court's exclusion of defense witnesses' testimony as a sanction for violation of a discovery order constituted an abuse of discretion,

(2) Whether the sentence imposed by the trial court was excessive, and

(3) Whether appellant's testimony that he gave his confession after drinking alcohol and smoking marijuana required the trial court to suppress his statement.

We reverse, having concluded that the trial court's decision to prohibit testimony by several of Wiseheart's witnesses was an abuse of discretion, since it appears to be based solely on the violation of a pretrial discovery order.

The evidence at trial revealed that Wiseheart had sexually molested the two daughters (LB & SB) of the woman with whom he was cohabitating. When the mother was informed of these molestations by the welfare department, she advised the police that there was an outstanding warrant for appellant (issued for failing to attend an alcohol counseling program) and told them where he could be found.

Officer Jack Fleeman arrested defendant at his residence. At the police station, Wiseheart was advised of his Miranda rights and he signed a waiver. During a taped statement, Wiseheart admitted that he had sexual contact with the children.

I. Exclusion of Defense Witnesses

On the morning of trial, defendant requested permission to call four individuals not previously listed as witnesses during discovery. The State objected on the grounds that this constituted a violation of the court's pretrial discovery order. Appellant argues that exclusion of these witnesses constituted an abuse of discretion. We agree and reverse on this issue.

Appellant maintains that there are two reasons why a continuance would have been the proper remedy. First, he claims that trial counsel was unaware of the existence of this evidence prior to trial and second, that these witnesses were material to his defense. He maintains that a continuance would have allowed the State time to assess the offered testimony and that exclusion of testimony is a sanction which should be applied only where there is evidence of bad faith.

The pretrial order required the defendant and the State to disclose the names and addresses of potential witnesses and a summary of their testimony. After the jury had been sworn, defendant moved to add four witnesses to his roster. Counsel Hancock explained that the existence of these four witnesses and the evidence which would be provided by their testimony was not known to him prior to trial. Apparently, these witnesses did not approach defense counsel to inform him about this evidence until the morning of the first day of trial.

Hancock identified the four witnesses whom he wanted to call on behalf of the defendant and described the nature of their testimony:

(1) Dr. Freedman: a psychiatrist or psychologist who had examined LB in connection with this case. Hancock was advised by either Judy Green or defendant's sister that she had been recently informed by the victims' mother that LB had been examined by the doctor. Hancock had not yet had a chance to talk with the doctor despite his attempts to reach him, and his clerk tried to reach the doctor while the hearing was held.

(2) SB: one of the victims who had allegedly changed her story and now insisted that the molestations did not occur.

(3) Ronny Wiseheart: defendant's nephew, who would testify about statements which LB made to him.

(4) Judy Green: who would testify about unknown information which she deemed vital to this case.

Hancock argued that failure to list these witnesses would be a violation of the court's discovery order only if he had knowledge of these witnesses prior to trial. He stated that he made diligent attempts to discover all information and witnesses relevant to the trial and was unable to uncover any of these witnesses until the morning of trial.

The trial court made the following rulings on the individual witnesses:

(1) Dr. Freedman: motion denied; the woman who told counsel that the doctor had certain information had a duty to do so earlier.

(2) SB: motion denied; she was a State witness and subject to cross-examination.

(3) Ronnie Wiseheart: motion denied; defendant had been out on bond for a considerable length of time and Ronnie is his nephew. The court stated that if defendant's nephew had any such information, it was his duty to come forward long before the day of the trial.

(4) Judy Green: motion denied; the case was pending since July, 1983 and if she is a responsible person and had information bearing on the trial, it was her duty to come forward long before the day of the trial.

The issue presented usually arises in the context of the State's violation of a pretrial discovery order. When evidence which should have been disclosed to the defendant during discovery is revealed for the first time at trial, the defendant has two remedies: move for a continuance or move for exclusion of the evidence. Averhart v. State (1984), Ind., 470 N.E.2d 666. In describing the availability of these two alternatives, Justice Pivarnik wrote:

Exclusion of evidence, however, is usually invoked only when the State has blatantly and deliberately refused to comply with the Court's discovery order. The usual remedy is to allow the defendant a continuance in order to examine and meet the new evidence.

Murray v. State (1985), Ind., 479 N.E.2d 1283, 1287.

Exclusion is appropriate only when it is the sole remedy which avoids substantial prejudice to the defendant's rights. Coppock v. State (1985), Ind., 480 N.E.2d 941.

While sanctions for failure to comply with discovery are within the trial court's discretion, the primary factors which a trial court should examine are whether the breach was intentional or in bad faith and whether substantial prejudice has resulted. Glover v. State (1982), Ind., 441 N.E.2d 1360; Dudley v. State (1985), Ind., 480 N.E.2d 881. The trial court's inquiry here did not appear to focus on these two questions. The State objected to the defendant's motion to call additional witnesses solely on the basis that defendant had violated the court's pretrial discovery order. The trial judge noted that one of the witnesses would be available for cross-examination by the defendant and determined that the other three witnesses should not be called because those having information had a duty to come forward earlier. The only evidence before the court was that they had not done so and that counsel's failure to list them was only in good faith. There was no inquiry on whether substantial prejudice would result to the State. Rather, defendant's motion was denied principally because he had breached a pretrial discovery order.

To prevent elevating form over substance it is necessary that the trial judge determine more than the existence of a violation. Although an inquiry on the substance of the request would be appropriate regardless of whether leave to add witnesses is requested by the State or by the defendant, a request by a defendant is buttressed by his Sixth Amendment right to present witnesses on his behalf. ¹

The factors which a trial court should consider when determining the sanction for a criminal defendant who violates a discovery order to disclose witnesses has not been addressed by this Court. The refusal of a trial court to permit a defendant to call undisclosed witnesses has been discussed by our Court of Appeals.

In Ottinger v. State (1977), Ind.App., 370 N.E.2d 912, the issue was whether the trial court erred by refusing to allow the defendant to call two witnesses who were disclosed to the State on the morning of trial. After the State presented its case in chief, defense counsel announced his intention to call two witnesses even though defendant had told the State prior to the trial that he did not intend to present any witnesses on his behalf. The trial court refused this testimony. On appeal, Ottinger argued that the trial court should have granted a continuance rather than exclude the testimony of his witnesses. The First District determined that the defendant's proposed witnesses would have testified about evidence which the defendant had knowledge of approximately eight months prior to trial. The Court of Appeals emphasized that his case was not a "situation involving evidence which became known for the first time on the morning of trial." 370 N.E.2d at 915.

In Crocker v. State (1978), 177 Ind.App. 131, 378 N.E.2d 645, the issue presented to the Third District was whether the defendant's right to a fair trial was violated when the trial court precluded testimony by one defense witness. The day before the trial the defense indicated its intention to call a brother of one of the defendants. It was indicated that the brother "would testify that he and two other named individuals had committed" the crime charged. The defendants argued on appeal that exclusion of the brother's testimony denied the accused a fair trial and constituted an abuse of discretion per se. The appellate court held that the exclusion did not amount to abuse...