Antrobus v. State, 169S6

Decision Date03 February 1970
Docket NumberNo. 169S6,169S6
Citation254 N.E.2d 873,20 Ind.Dec. 164,253 Ind. 420
CourtIndiana Supreme Court
PartiesRobert ANTROBUS et al., Appellants, v. STATE of Indiana, Appellee.

George T. Popcheff, Frederick J. Graf, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Aaron T. Jahr, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Judge.

This is an appeal from the conviction of both appellants for First Degree Burglary in a trial without jury in the Marion County Criminal Court 1.

Appellants and one Ronald Schoolcraft were charged with breaking into the home of Marjorie Trivett and removing a safe containing $5,000.00. Marjorie Trivett testified concerning the breaking, entering and theft of the safe but was not a witness to the offense so she could not identify any of the burglars. The only witness at the trial offering evidence that in any way tied appellants to the crime was the accomplice Ronald Schoolcraft. Appellants were indicted for the offense along with Schoolcraft but upon their motion were granted a separate trial.

Appellants first allege that the trial court erred in denying the appellants' attempted discovery in two respects: (I) The trial court denied appellants' motion requesting appellee to produce certain pre-trial statements concerning this case made by the witness Schoolcraft to the grand jury and to the police, for the purpose of cross examination and impeachment of the witness. (II) The trial court denied appellants' pre-trial petition for a psychiatric examination of the prosecution witness Schoolcraft in order to determine his competency as a witness.


The rules of discovery applicable in civil proceedings in Indiana courts are not applicable as such in criminal proceedings. However, the techniques of discovery embodied in those rules will often be applicable in criminal proceedings and the trial court has the inherent power to implement such discovery techniques as are necessary to provide the defendant a full and fair hearing. Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536; Johns v. State (1968), Ind., 240 N.E.2d 60.

The guiding principle to be followed by trial courts in dealing with the area of criminal discovery was set down in Bernard v. State, supra. That case involved a request by a criminal defendant for a list of names of witnesses to be used against him. In holding that it was error to deny such a motion this Court said:

'It is self-evident that a list of witnesses would have been beneficial in the preparation of appellant's case. We do not require that the State lay bare its case in advance of trial nor that the criminal defendant be allowed a fishing expedition, however these objections do not arise when a list of witnesses is requested and the State fails to show a paramount interest in non-disclosure.' (Emphasis added.) 248 Ind. at 692, 230 N.E.2d at 540.

This principle was followed in Johns v. State, supra, the Court saying:

'Under the doctrine outlined in Bernard v. State (1967), Ind., 230 N.E.2d 536, it is clear that the trial court, when requested by the defendant in a criminal proceeding, has the duty to order the State to furnish the defendant with the names and addresses of those witnesses upon whom the State intends to rely in the prosecution of the case, unless the State is able to show a paramount interest in non disclosure. * * * The purpose of the Bernard doctrine is to insure justice and fairness in criminal proceedings, and it is axiomatic that an accused is not justly and fairly tried when his counsel is compelled to maneuver in a factual vacuum. Nor is fairness and justice enhanced when convictions are gained through surprise, or by the prosecution misleading the defense.' (Emphasis added.) 240 N.E.2d 60.

In Amaro v. State (1968), Ind., 239 N.E.2d 394, the principle was used to support the defendant's right to take pre-trial depositions of prosecuting witnesses the court saying '* * * the denial was not within the discretion of the Trial Court in that the State failed to show a paramount interest, nor did the Trial Court on its own motion make such a finding.' See also Nuckles v. State (1968), Ind., 236 N.E.2d 818.

We believe that the principle relied on in the above cases provides the basis for the review of the appellants' allegations of error.


The first issue is whether the trial court erred in denying appellants' motion requesting appellee to produce pre-trial statements concerning this case made to the police and the grand jury by the witness Schoolcraft, for the purpose of cross examination and impeachment of the witness. We will first discuss the question concerning statements made to the police.


After cross examining the witness at some length, appellants made a motion to require the State to produce 'any and all written statements of the witness * * * to aid the defense in cross examining the witness.' The trial court denied this motion saying it was not up to trial judges to change the law in this area.

On re-cross examination the following exchange took place between the witness and appellants' attorney:

'Q. Mr. Schoolcraft, when you talked to some detectives about this case, did you sign a statement for them?

A. Sir, I talked to the F.B.I. before I ever did talk to any investigators, before I ever did clear myself up, my past.

Q. Well, my question to you, Mr. Schoolcraft, is have you made a written statement about this case involving Codalata and Antrobus * * *

A. That's correct sir.

Q. * * * and Marge Trivett. Who has the written statement?

A. I made a written statement.

Q. Who has the written statement? Who took the written Statements?

A. Mr. Stout did, sir.

Q. Mr. Stout. Was there one or more than one?

A. Atwell was there too, sir, was present.

Q. All right, was there one statement or more than one statement taken from you?

A. Sir, I don't know.

Q. How many did you sign?

A. I signed statements on everything that I had did, sir.

Q. Did you read them before you signed them?

A. Yes, sir, I was advised of my constitutional rights.

MR. ORR: All right, at this time the defendants Codalata and Antrobus for the record, Your Honor, renew their motions for copies of the written statements the witness has said has been given to Detectives Stout and Atwell.'

There was no response by the State to the appellants' motion to produce and the trial court denied the motion.

The sole evidence connecting appellants with the crime charged was this testimony of the accomplice, Schoolcraft. The appellants were not arrested until after the police had received information concerning the crime from Schoolcraft. The witness testified that he had used dope in the past, had been arrested on a 'pre-mental charge', had been under observation for thirty days in the psychiatric ward of General Hospital, had attempted suicide while in the jail, had attacked a police officer with a knife, was being used as a prosecuting witness in nineteen pending cases, had two prior convictions for burglary and one for arson, and had still not been sentenced for the crime for which he was indicted jointly with appellants. The witness also admitted he had previously testified against appellant Codalata in another case where appellant was found not guilty. In this context it is obvious that appellants had a great interest in inspecting the witness' pre-trial statements for possible use in cross examination and impeachment.

We hold that under the principles of the Bernard case it was error for the trial court, in the absence of the appellee showing a paramount interest in non-disclosure, to deny appellants' motion requesting production by appellee of the witness' pre-trial statements made to the police officers for the purpose of cross examination and impeachment of the witness.

This general rule has been adopted in many jurisdictions in the United States. Jencks v. United States (1957), 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, adopted the rule for the entire federal judiciary. Later the Jencks rule was substantially incorporated in Title 18 U.S.C. § 3500, which now provides the federal rule for obtaining such statements. State v. Ashton (1963), 95 Ariz. 37, 386 P.2d 83; People v. Estrada (1960), 54 Cal.2d 713, 7 Cal.Rptr. 897, 355 P.2d 641; State v. Hutchins (1957), 51 Del. 100, 138 A.2d 342; People v. Neiman (1964), 30 Ill.2d 393, 197 N.E.2d 8; People v. Dellabonda (Salimone) (1933), 265 Mich. 486, 251 N.W. 594; State v. Backman (1917), 41 Nev. 197, 168 P. 733; State v. Hunt (1958), 25 N.J. 514, 138 A.2d 1; People v. Rosario (1961), 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, 7 A.L.R.3d 174; Commonwealth v. Smith (1965), 417 Pa. 321, 208 A.2d 219; Pruitt v. State (1962), Tex.Cr.App., 355 S.W.2d 528.

With respect to a defendant's right to obtain such statements we hold the rule to be this: First, the defendant must lay the proper foundation for his motion or the trial court may properly deny it. An adequate foundation is laid when: (1) The witness whose statement is sought has testified on direct examination; (2) A substantially verbatim transcription of statements made by the witness prior to trial is shown to probably be within the control of the prosection; and, (3) The statements relate to matters covered in the witness' testimony in the present case.

After laying this foundation, the defendant may move the trial court to require the State to produce such statements for use by the defense in cross examination and impeachment of the witness. If the foundation is proper the trial court must grant the motion and order the statements turned directly over to the defendant unless the State alleges: (a) There are no such statements within the control of the State. The trial court must conduct a hearing on the conflicting claims of the parties to resolve this issue. (b) There is a necessity for keeping the contents of the statements confidential. (c) The...

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