Barnett v. State, 980S378
| Decision Date | 30 December 1981 |
| Docket Number | No. 980S378,980S378 |
| Parties | Philbert BARNETT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Merle B. Rose, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
The appellant, Philbert Barnett, was convicted of burglary, Ind.Code § 35-43-2-1, and was found to be an habitual offender, Ind.Code § 35-50-2-8. The trial court sentenced him to thirty-five years' imprisonment.
The appeal raises four issues:
1. Whether the trial court erred in allowing the State to amend the burglary information by adding the habitual offender charge after the jury was selected.
2. Whether the trial court erred in denying the defense motion for a continuance.
3. Whether the trial court erred in admitting certain evidence.
4. Whether the appellant was denied a fair trial because the State withheld exculpatory evidence.
On May 21, 1979, the State filed an information for Count I, burglary, and Count II, habitual offender, alleging two prior felony convictions. On November 20, 1979, the State was permitted to amend the habitual offender count adding a third prior felony conviction. The defense moved to dismiss the amended habitual offender count on the ground that it failed to advise the defense of the specific charges which it would seek to prove. The State did not appear on the motion and it was granted. By the time of the pre-trial conference, only Count I was pending.
In the course of the discovery process, the State provided the defense, on April 2, 1980, ten days before the date the trial started, with court records and certified records relating to incarceration on each of the three alleged prior felony convictions. The State tendered the habitual offender count anew on the day the trial began, after the jurors had been selected but before they were sworn. The defense moved for a continuance to examine the charges to determine whether a motion to dismiss would be appropriate. The motion was denied.
The appellant claims that his rights were prejudiced by the last-minute amendment in two ways. First, he claims that he had no time to prepare a defense on the habitual offender count. Second, he was forced, he claims, to forego his Fifth Amendment right to testify on his own behalf on the substantive count because of fear that he would jeopardize his position as to the habitual offender count.
The State responds that the appellant was not prejudiced because he knew of the habitual offender count since the charges were initially filed in May, 1979, and had complete information on the alleged prior convictions because he was provided cause numbers and dates of the three separate convictions, as well as copies of appellant's incarceration records.
Indiana Code § 35-3.1-1-5, provides that an information may be amended at any time before, during, or after trial as long as the amendment does not prejudice the substantial rights of the defendant. Howard v. State, (1978) 268 Ind. 589, 377 N.E.2d 628. An accused has, furthermore, the constitutional right to have notice and an opportunity to be heard regarding a charge, including a recidivist charge. Oyler v. Boles, (1962) 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446.
It was error for the court to have denied the motion for a continuance. The defense had no reason to make use of the evidence disclosed during discovery regarding the three prior felony convictions, because the count had been dismissed.
We are unable to see from our post-trial, appellate perspective, however, in what way a continuance would have been to any avail. The defense attorney, in arguing the motion for a continuance, stated that he needed time to examine the amendment for defects. He also stated that he would have produced witnesses to testify on the habitual offender count, had he had advance notice of the amendment. The appellant in his brief on appeal does not point to any defects in the amendment, nor does he indicate what his witnesses would have testified about. We are not convinced, moreover, that the appellant, in deciding not to testify on his own behalf on the substantive count was placed in a unique position of prejudice because of the last-minute amendment. There was no pertinent information which he did not have. The time available in which to make the decision, namely, up to the point where the State rested its main case, was reasonable in duration. Appellant was in no significantly different position from others who, upon facing the bifurcated proceeding under the habitual offender sentencing statute must make the tactical choice of testifying or not during the substantive count phase of the trial in light of the second phase of the proceeding.
The appellant has not shown that his substantial rights were prejudiced by the court's erroneous denial of the continuance motion. The error was harmless.
The defense objected on a continuing basis to all of the State's exhibits introduced into evidence on the habitual offender count. The appellant moved for a continuance when the State sought to introduce the exhibits, and he claims that the trial court erred in denying his motion. He claims that he was prejudiced in three ways. First, he claims that he was surprised by the evidence and was forced to change his trial tactics and not testify. Second, he claims that the defense was unable to prepare or take depositions of the alleged keepers of the documents introduced. Third, he claims that he was denied his constitutional right to advance notification of the potential for an increased penalty.
Regarding the first claim of prejudice, we have already observed that all defendants faced with the bifurcated habitual offender procedure must make the tactical decision whether to testify on the substantive count. The appellant does not claim any other prejudice.
The second claim concerns the denial of an opportunity to explore the authenticity of the documents introduced to prove that the appellant had been convicted of at least two prior felonies. The appellant may not claim that he was denied an opportunity to respond to the proof of identity because he himself, represented by counsel, acknowledged in open court that he was the same Philbert Barnett who had been previously convicted.
As to the third claim, the appellant relies on the following language in Lewis v. State, (1975) 166 Ind.App. 553, 560, 337 N.E.2d 516, 520, construing our holding in Lawrence v. State, (1972) 259 Ind. 306, 286 N.E.2d 830:
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