Birkla v. State, No. 374S73

Docket NºNo. 374S73
Citation263 Ind. 37, 323 N.E.2d 645
Case DateFebruary 26, 1975
CourtSupreme Court of Indiana

Page 645

323 N.E.2d 645
263 Ind. 37
Charles Ellis BIRKLA, Defendant-Appellant,
v.
The STATE of Indiana, Plaintiff-Appellee.
No. 374S73.
Supreme Court of Indiana.
Feb. 26, 1975.

Page 647

[263 Ind. 40] Stephen C. Haas, Evansville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., G. Philip Duckwall, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HUNTER, Justice.

Defendant-Appellant Charles Ellis Birkla was indicted by the grand jurors of Vanderburgh County and charged with first degree murder (Count I) and first degree murder in the commission of a felony, to-wit: robbery (Count II). After trial by jury, appellant was found guilty of second degree murder under Count I and guilty as charged under Count II. Appellant was sentenced to a term of not less than fifteen years nor more than twenty-five years upon conviction of second degree murder. He was sentenced to life imprisonment upon conviction of first degree murder in the perpetration of robbery. From the overruling of his motion to correct errors, appellant brings this appeal.

The primary issue raised in this appeal is whether appellant was denied a fair trial by alleged prosecutorial misconduct in the destruction of a videotape recording. Appellant also seeks review of the admission of a photograph and the overruling of his motion for a directed verdict.

I

In the early morning hours of February 8, 1972, the Red Bird service station in Evansville was robbed. The station attendant, David L. Higgins, was killed during the robbery. Approximately one year later on February 6, 1973, an indictment was returned against defendant-appellant Birkla and Robert L. Smithhart. Prior to the return of the indictment, Smithhart was held in the Vanderburgh County jail on a preliminary charge, and Birkla was in federal custody.

On February 8, 1973, Smithhart's wife, Charlene, came to the Evansville Police Department and requested to see her husband. Smithhart was brought from the county jail and [263 Ind. 41] allowed to visit his wife in a private interrogation room. Unknown to the Smithharts, their actions were being recorded by a video camera peering into the room through a two-way mirror. Simultaneously, their voices were being recorded by a speaker-type microphone placed on the table before them.

Several days later the prosecutor was informed by the Evansville Police Department that a videotape had been made. On inquiry the prosecutor discovered the tape had been made without the consent of the Smithharts and without the knowledge of Smithhart's attorney (who also represented appellant). The prosecutor immediately informed the police that the tape was inadmissible by the state. However, the prosecutor recognized his duty to view the videotape for evidence exculpatory of either accused. After viewing the videotape, the prosecutor ordered it to be erased.

In deposing Mrs. Smithhart on March 22, appellant's attorney discovered that the tape had been made. Appellant's motion to produce was granted. On May 30, the prosecutor answered that the tape had been erased by Detective Kenneth Macken, on or about February 12, 1973. Appellant's motion to dismiss, filed June 1, 1973, was overruled. After a change of venue, the motion was renewed, and again overruled.

Page 648

Arguing that the state's nonproduction of the videotape would unconstitutionally impair defendant's ability to impeach the state's chief witness against him (Charlene Smithhart), defendant moved for an order to prevent the state from calling her. The motion was denied. After Charlene testified, defendant moved to strike her testimony on the same ground. This motion was also overruled. Appellant argues that the overruling of these motions requires that he be granted a new trial. We do not agree.

The function of the prosecution in our adversary system of criminal justice is to insure that justice prevails, not to procure convictions at any cost. When the prosecution exceeds the function with which it is charged, both defendant and society[263 Ind. 42] are wronged. Thus, appellate courts have traditionally subjected claims of prosecutorial misconduct to intensive review.

Clearly, a state may not sustain a conviction based upon testimony known to be perjured. Mooney v. Holohan (1935), 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. Nor may the prosecution stand mute while testimony known to be false is received into evidence. Alcorta v. Texas (1957), 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9. Moreover, the latter duty does not cease merely because the false testimony goes only to the credibility of a state's witness. Thus the United States Supreme Court in Napue v. Illinois (1959), 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, stated:

'The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.'

Similarly, when the prosecution relies upon the testimony of a coconspirator to obtain conviction of an accused, the coconspirator's credibility is an important issue in the case, and evidence of any understanding or agreement as to future prosecution of the coconspirator must be disclosed to the jury. Giglio v. U.S. (1972), 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; De Marco v. U.S. (1974), 415 U.S. 449, 94 S.Ct. 1185, 39 L.Ed.2d 501. While the foregoing cases describe limitations upon prosecutorial conduct at trial, the duty of the prosecutor vis-a-vis a defendant's right to fair trial commences when the citizen is charged. Thus, a suppression by the prosecution of evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or punishment, irrespective of the bona fides...

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78 practice notes
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...denied appellant a fair trial, citing Brady v. Maryland, (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and Birkla v. State, (1975) 263 Ind. 37, 323 N.E.2d 645. These cases do not support his contention. Due process requires that the prosecution not knowingly use false or perjured testi......
  • Merry v. State, No. 2--774A184
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1975
    ...of the charge, then it is incumbent upon the trial court to direct the verdict in favor of the defendant. Birkla v. State (1975), Ind., 323 N.E.2d 645; Johnson v. State (1975), Ind.App., 326 N.E.2d 637; Smith v. State (1975), Ind.App., 324 N.E.2d 276. Upon reviewing the verdict for insuffic......
  • Daniels v. State, No. 380S66
    • United States
    • Indiana Supreme Court of Indiana
    • September 9, 1983
    ...reversal when the evidence is material either to guilt or punishment. Rowan v. State, (1982) Ind., 431 N.E.2d 805; Birkla v. State, (1975) 263 Ind. 37, 323 N.E.2d 645. In this case, defendant had access to adequate copies and summaries of the relevant evidence. Furthermore, the state's case......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...destruction or withholding of material evidence by the police or the prosecution may present grounds for reversal. Birkla v. State, (1975) 263 Ind. 37, 323 N.E.2d 645; Hale v. State, (1967) 248 Ind. 630, 230 N.E.2d 432. A suppression by the prosecution of evidence favorable to an accused vi......
  • Request a trial to view additional results
78 cases
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1978
    ...denied appellant a fair trial, citing Brady v. Maryland, (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and Birkla v. State, (1975) 263 Ind. 37, 323 N.E.2d 645. These cases do not support his contention. Due process requires that the prosecution not knowingly use false or perjured testi......
  • Merry v. State, No. 2--774A184
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1975
    ...of the charge, then it is incumbent upon the trial court to direct the verdict in favor of the defendant. Birkla v. State (1975), Ind., 323 N.E.2d 645; Johnson v. State (1975), Ind.App., 326 N.E.2d 637; Smith v. State (1975), Ind.App., 324 N.E.2d 276. Upon reviewing the verdict for insuffic......
  • Daniels v. State, No. 380S66
    • United States
    • Indiana Supreme Court of Indiana
    • September 9, 1983
    ...reversal when the evidence is material either to guilt or punishment. Rowan v. State, (1982) Ind., 431 N.E.2d 805; Birkla v. State, (1975) 263 Ind. 37, 323 N.E.2d 645. In this case, defendant had access to adequate copies and summaries of the relevant evidence. Furthermore, the state's case......
  • Rowan v. State, No. 380S76
    • United States
    • Indiana Supreme Court of Indiana
    • March 5, 1982
    ...destruction or withholding of material evidence by the police or the prosecution may present grounds for reversal. Birkla v. State, (1975) 263 Ind. 37, 323 N.E.2d 645; Hale v. State, (1967) 248 Ind. 630, 230 N.E.2d 432. A suppression by the prosecution of evidence favorable to an accused vi......
  • Request a trial to view additional results

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