Bernard v. State

• Decision Date: 31 October 1967
• Docket Number: No. 30821,30821
• Citation: 230 N.E.2d 536,248 Ind. 688
• Parties: Eddie David BERNARD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 536

230 N.E.2d 536

248 Ind. 688

Eddie David BERNARD, Appellant, v. STATE of Indiana, Appellee.

No. 30821.

Supreme Court of Indiana.

Oct. 31, 1967.

Robert G. Mann, Bolden & Mann, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., John J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Chief Justice.

The appellant herein is appealing from a conviction in the criminal court of Marion County, Indiana, of assault and battery with intent to murder and being an habitual criminal in two (2) counts, and of the commission of a felony, grand larceny, while armed.

Prosecution was commenced on the basis of two (2) indictments charging the appellant with the above stated crimes, appellant entered a plea of not guilty and thereafter trial was had by jury. The trial resulted in the jury finding appellant guilty on both indictments.

The error assigned and relied upon by the appellant is the overruling of his motion for a new trial.

The record of evidence, viewed most favorable to the appellee State of Indiana along with all reasonable inferences to be drawn therefrom, reveals the following:

On January 27, 1964 at 12:30 A.M., Indianapolis, Indiana, Norman Boyce seeing two (20) places that had been broken into, one of which was the Lane Radio & T.V. Service, went into a nearby phone booth where, as he called the police department, he was shot three (3) times from behind. After being shot, Boyce saw the appellant enter the phone booth and hang up the phone, and observed a revolver in appellant's hand.

One witness testified she was in her residence near the Lane Radio & T.V. Shop and saw Boyce in the phone booth. She heard shots, saw Boyce fall in the booth and saw a man go to the T.V. Shop and return with two (2) television sets. She could not identify the appellant as being the man but testified that he wore light pants and a plaid jacket and was a colored person. Another witness, who also lived near the vicinity of the crime, heard glass breaking and saw a man come from the direction of the Lane Radio and T.V. carrying some television sets. She saw this man stop behind a Dairy Queen and then heard four (4) shots. The owner of Lane's Radio and T.V. found a window glass broken and four (4) television sets missing.

Although appellant alleges a number of complaints, the first issue to be considered is whether appellant can obtain a list of the prosecution witnesses prior to trial.

The grand jury returned two (2) indictments on which were endorsed a total of five (5) witnesses, two (2) of which were duplicated on both indictments. Prior to trial the appellant filed a motion for a list of the witnesses to be used against him. The motion was overruled by the court, and later a total of sixteen (16) persons were called as witnesses for the prosecution. As each witness, whose name was not endorsed on the indictments, was produced to testify appellant objected to their testimony on the basis of surprise and moved for a continuance to investigate. The several motions were overruled by the court.

Discovery may be provided for by statute, court rule or granted by the inherent power of the trial court. We find no rule of court on point, nor have we found any criminal code provision clearly applicable, although it is provided that

'In all criminal cases where no special provision has been made in this act, the rules of pleading and practice in civil actions shall govern, so far as applicable.' Ind.Ann.Stat. § 9--2407 (1956).

Weer v. State (1941), 219 Ind. 217, 36 N.E.2d 787, 37 N.E.2d 537. We do not believe the rules of civil practice should be applicable to a request for a list of witnesses in a criminal cause. For a general analysis see Orfield, Criminal Discovery in Indiana, 1 Ind.L. Forum 117 (1967).

While discovery in favor of the accused is not required by the constitutional guarantee of due process, Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958), it has been recognized that within the general nature of a trial court is the inherent power to order various types of discovery: discovery of the defendant's confession, State v. Johnson (1958), 28 N.J. 133, 145 A.2d 313; prior statements of a prosecuting witness which are inconsistent with his later testimony, People v. Riser (1956), 47 Cal.2d 566, 305 P.2d 1. It is the duty of the trial judge to regulate the conduct of those participating and to guide the proceeding to insure fairness and obtain economy of time and effort as is commensurate with the rights of both society and the criminal defendant.

We are confronted with pre-trial discovery of witnesses, and we acknowledge that the trial court has the power to order the prosecutor to disclose a list of his witnesses. Norton v. Superior Court (1959), 173 Cal.App.2d 133, 343 P.2d 139. This power must be discretionary since the trial judge is often faced with two possible lines of action. However, we believe the best modern authority holds this power not to be a full discretion but rather a limited discretion. Chief Justice Weintraub of the New Jersey Supreme Court circumscribed the discretionary power to order inspection of an accused's confession reasoning that:

'In some areas as exercise of discretion must necessarily remain an intuitive response to a set of facts. Here, however, some guiding criteria can be prescribed and hence should be, to guard against arbitrariness and unequal treatment * * *' State v. Johnson, supra, 28 N.J. at 136, 145 A.2d at 315.

The Michigan Supreme Court, in the absence of statute or rule, declared that modern authority allows discovery within the inherent power of the trial court. The court stated that the defendant must show that such is necessary to preparation of his case, and on such a showing discovery

'should be granted absent a more compelling showing by the people of facts tending to prove that such an order would unfairly hamper the prosecutor or do a disservice to the public interest.' People v. Johnson (1959), 356 Mich. 619, 628, 97 N.W.2d 739, 744.

An identical limitation on the trial judge's discretion has developed in California in the absence of statute or rule. Powell v. Superior Court (1957), 48 Cal.2d 704, 312 P.2d 698; People v. Riser, supra. Judge Traynor states that California courts hold 'in the absence of a countervailing showing by the prosecution that the information may be used for an improper purpose, discovery is available' as a matter of right. Traynor, Criminal Discovery, 39 N.Y.U. Law Rev. 228, 244 (1964).

We agree that the trial judge has limited discretion and that when a list of witnesses is requested it should be granted unless the State makes a showing of a paramount interest over that of the defendant.

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. It is apparent that providing a list of the prosecution's witnesses prior to trial is in conformity with the intent and purpose of Ind.Ann.Stat. § 9--903 (1956) which requires the names of all material witnesses to be endorsed upon the indictment thus permitting pre-trial disclosures to the defendant.

For the above reasons a list of the prosecution's witnesses should have been granted to the appellant and we hold the judgment of the trial court should be reversed.

While we are reversing, other contentions of the appellant should be laid to rest for the subsequent trial.

Appellant maintains that although he has been twice convicted for two (2) prior felonies and on each conviction, sentenced to the Indiana State Farm, he cannot be deemed an habitual criminal upon conviction for a third felony since the Indiana State Farm is not a penal institution within the purview of the habitual criminal statute. The appellee maintains that the State Farm is a penal institution as contemplated by the habitual criminal statute, and any distinction between the State Farm and the State Prison or Reformatory is contrary to the common meaning of the language of the statute.

The statute under which appellant was prosecuted for being an habitual criminal is as follows:

'Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal and he or she shall be sentenced to imprisonment in the state prison for and during his or her life.' Ind.Ann.Stat. § 9--2207 (1956).

To authorize a life sentence on conviction for a third felony, Ind.Ann.Stat. § 9--2208 (1956) requires proof that the accused was twice convicted for felonies, sentenced and imprisoned in a penal institution for those felonies. The purpose of the statute is to more severely penalize those persons that prior sanctions have failed to deter from committing felonies. Kelley v. State (1932), 204 Ind. 612, 185 N.E. 453. The punishment is harsh because the offender is an habitual criminal.

Ind.Ann.Stat. § 9--101 (1956) reads:

'All crimes and public offenses which may be punished with death or imprisonment in the state prison shall be denominated felonies; and (and) all other offenses against the criminal law shall be denominated misdemeanors.'

This statute does not require that imprisonment must be in the State Prison for the offense to be a felony, but it is sufficient if the offender may be imprisoned in the State Prison. Paneitz v. State (1965), Ind., 204 N.E.2d 350; In re Sobieski (1965), Ind., 204 N.E.2d 353.

Under the...