Borst v. State, 3-1282A325
Citation | 459 N.E.2d 751 |
Decision Date | 15 February 1984 |
Docket Number | No. 3-1282A325,3-1282A325 |
Parties | Robert Lee BORST, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Court of Appeals of Indiana |
Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
Following a jury trial, Robert Lee Borst, Jr. (Borst) was convicted of possession of cocaine 1 and possession of marijuana. 2 Borst appeals. On appeal, we must consider only the following issue:
Whether the trial court denied Borst a fair trial by excluding the testimony of one of his witnesses rather than granting a continuance to allow the State time to investigate information provided by that witness.
Reversed and remanded for a new trial. 3
However, the prosecutor stated that the State did not want a continuance, and that the State wanted Borst to comply with the discovery order. The Motion in Limine was granted, pending an offer of Evans's testimony at trial.
On May 28, 1982, the defense made an offer to prove Evans's testimony. Following a hearing, the court granted the Motion in Limine on the grounds that Borst had communicated with Evans prior to December, 1982 but that Evans's address was not disclosed to the State until two days before trial, so the State did not have sufficient time to interview other witnesses. The court also stated that discovery had been ordered completed by December, 1982, so the February 8 letter did not comply. The record indicates that this statement was in error; discovery was ordered closed by February 8, 1983. (Record, p. 20).
The purpose of discovery is to provide both parties with the maximum possible amount of information with which to prepare their case before trial. Johnson v. State (1979), 179 Ind.App. 28, 384 N.E.2d 1035. When a discovery order has been violated, thereby thwarting that purpose, the choice of remedy for the violation lies within the sound discretion of the trial court and will not be overturned absent clear error. Anderson v. State (1983), Ind., 448 N.E.2d 1180, 1184-85; Lloyd v. State (1983), Ind., 448 N.E.2d 1062, 1067; Reid v. State (1978), 267 Ind. 555, 372 N.E.2d 1149. In general, the appropriate remedy is a continuance, but evidence not disclosed by the State may be excluded if the State has acted in such bad faith as to jeopardize the defendant's right to a fair trial. Anderson, supra; Lloyd, supra. This remedy is generally invoked only if the State has blatantly and deliberately refused to comply with the discovery order, Johnson v. State, supra, and specific prejudice has resulted. Robinson v. State (1983), Ind., 450 N.E.2d 51, 52; Lagenour v. State (1978), 268 Ind. 441, 376 N.E.2d 475. 4
Borst contends the trial court's action denied him a fair trial. The Sixth Amendment to the United States Constitution guarantees a defendant the right to present witnesses on his behalf. This right is embodied in the due process requirement of the Fourteenth Amendment and applies to proceedings in state courts. Camarillo v. State (1980), Ind.App., 410 N.E.2d 1202, 1204. We agree that, by excluding the testimony of Evans the trial court denied Borst his right to present a witness in his favor.
The State contends that Borst acted in bad faith by not providing Evans's address sooner. In support of this contention, the State argues that Borst had been in touch with Evans during the time he was incarcerated but had not asked Evans to contact his attorney. The State also notes that Borst had sought previous continuances and that he had forced one attorney to withdraw from his defense and another to attempt to withdraw. The record shows that Evans had moved during the time Borst was incarcerated and had sold his business. It also shows that Borst did not meet with his attorney from February until a few weeks prior to trial. When defense counsel located Evans through a message left with a bartender, she notified the State on the next working day.
Even if we were to assume, solely for the sake of argument, that bad faith on Borst's part would justify infringement on his Sixth Amendment right, the evidence falls short of demonstrating bad faith. Moreover, the State made no showing of substantial prejudice to its case if a continuance were granted. 5 The prosecutor conceded that consciencious prosecution would require him to explore the information provided by Evans but urged that the trial begin as scheduled. 6 Exclusion of Evans's testimony was not the proper remedy in this case; the State's objections to the admission of the testimony could have been overcome by the granting of a continuance. The trial court's refusal to grant a continuance or to allow Evans to testify denied Borst a fair trial. Therefore we reverse and remand for a new trial.
As the majority points out, the purpose of discovery is to provide both parties with the maximum possible information before trial, and when a discovery order has been violated, the choice...
To continue reading
Request your trial-
Wiseheart v. State
...the brother's proposed testimony was unconvincing and potentially damaging to his clients' alibi defense. Finally, in Borst v. State (1984), Ind.App., 459 N.E.2d 751, trans. denied, the Third District reversed a trial court's decision to exclude the testimony of one defense witness rather t......
-
Cordray v. State, 82A04-9703-CR-109
...to the United States Constitution guarantees a defendant the right to present witnesses on his or her behalf, Borst v. State, 459 N.E.2d 751, 753 (Ind.Ct.App.1984), a trial court also has the power to exclude the testimony of a defense witness who has violated the court's separation order. ......
-
State v. Amburgey
...P.2d 315; Richardson v. State (Fla.1971), 246 So.2d 771; People v. Williams (1977), 55 Ill.App.3d 752 , 370 N.E.2d 1261; Borst v. State (Ind.App.1984), 459 N.E.2d 751; State v. Marchellino (Iowa 1981), 304 N.W.2d 252; State v. Smith (1979), 123 Ariz. 243, 599 P.2d 199; Fendler v. Goldsmith ......
-
City of Lakewood v. Papadelis
...v. State (Fla.1971), 246 So.2d 771; People v. Williams (1977), 55 Ill.App.3d 752, 13 Ill.Dec. 234, 370 N.E.2d 1261; Borst v. State (Ind.App.1984), 459 N.E.2d 751; State v. Marchellino (Iowa 1981), 304 N.W.2d 252; State v. Smith (1979), 123 Ariz. 243, 599 P.2d 199; Fendler v. Goldsmith (C.A.......