Buchanan v. State

Decision Date05 November 1975
Docket NumberNo. 2--874A190,2--874A190
Citation336 N.E.2d 654,166 Ind.App. 430
PartiesHenry Thomas BUCHANAN, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court

Harriette Bailey Conn, Public Defender, Eugene C. Hollander, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Pursuant to Indiana Rules of Procedure for Post-Conviction Remedies, Rule 2, Henry Thomas Buchanan belatedly appeals his second degree burglary conviction. 1 Buchanan asserts error as follows: (1) admission of certain physical evidence and testimony despite the failure of the prosecution to comply with a pre-trial discovery order; (2) that the verdict and corresponding judgment were not sustained by sufficient evidence; and (3) giving two State's instructions.

We affirm.

The facts viewed most favorably to the State reveal that at approximately 2:15 A.M. on the morning of October 14, 1972, Officer Doug Hall, of the Hartford City Police Department, in the company of two fellow officers, observed Buchanan crouched inside a Goodyear Tire and Rubber Company store. Hall testified that he exited his patrol car, ran to the front window and demanded that Buchanan stop and raise his hands. At that time Buchanan bolted from the showroom into the garage area of the building and attempted to escape through a hole in a closed overhead door. Hall quickly ran around the north side of the building where he and a fellow officer apprehended Buchanan as he attempted to flee.

An examination of the premises revealed that a number of televisions and other appliances had been removed from their shelves and placed near the overhead door. Furthermore, a door leading from the garage area into a showroom was found broken and pieces of plexiglass scattered nearby. The officers also recovered a 'shop towel' outside the building and a paper towel inside the building, near the broken plexiglass, both of which were stained with blood. While in custody, the police provided Buchanan with a towel in order to stop the bleeding from a cut on his hand. At trial, the shop towel, the paper towel and the police-provided towel, all containing human blood, Type B, were

admitted into evidence. PROSECUTION'S

FAILURE TO COMPLY WITH PRE-TRIAL DISCOVERY ORDER
WAIVED BY DEFENDANT

Defendant first contends that the trial court committed reversible error by allowing the prosecution to call certain witnesses and present certain physical evidence after the State failed to provide such list of witnesses and to afford the defense an opportunity to examine such physical evidence as ordered by the Court in response to defendant's motion to produce. Said motion, filed June 6, 1973, reads as follows:

'Comes now Robert J. Barry, Attorney for the defendant, and moves the Court for an order as follows:

1. To require the Prosecuting Attorney to produce all statements of witnesses that have been made to any law enforcement agency of the State of Indiana and/or Blackford County, including the Prosecuting Attorney of Blackford County, Indiana.

2. To require the Prosecuting Attorney to turn over to defendant's attorney the names and addresses of all witnesses which the State of Indiana intends to, and will rely on, in the prosecution of said cause.

3. To require the Prosecuting Attorney to furnish a list of any pictures, items of personal property or other physical evidence that he intends to offer in evidence in this cause; and that defendant's attorney be given an opportunity to inspect such physical evidence.

4. To require the Prosecuting Attorney to furnish to defendant's attorney for inspection and copy all reports of work performed by the Indiana State Police Laboratory, and/or any other laboratory on behalf of the State of Indiana in connection with this cause, whether or not the Prosecuting Attorney intends to offer the same in evidence in this cause.'

While the trial court might have appropriately denied Buchanan's Motion to Produce in light of the general and unspecific nature of the Motion (see Dillard v. State (1971), 257 Ind. 282, 292, 274 N.E.2d 387, 392--393), the fact remains that on June 6, 1973, the court granted such Motion and ordered the prosecution to produce the requested list of witnesses and to permit examination of the physical evidence within twenty days. Our consideration of the issue therefore must be directed toward the asserted failure of the prosecution to honor such production order.

At trial, out of the hearing of the jury, defense counsel objected to the admission of any such evidence, categorically denying receipt of a list of witnesses or an opportunity to examine the physical evidence. Conversely, the prosecuting attorney categorically stated that defendant's first attorney, who withdrew prior to trial, had been provided with the written list, and that defendant's present trial attorney had received such list orally. Furthermore, the prosecuting attorney stated that he had provided defense counsel an opportunity to view the physical evidence prior to trial, but that defense attorney never attempted to avail himself of the opportunity.

The trial court, in considering the defense objection to the testimony of witnesses not contained on a written list provided by the prosecution, indicated that it felt that the oral recitation of prospective witnesses given to counsel was substantial compliance with that portion of the discovery order. The court nevertheless directed the prosecutor to provide a written list of the witnesses and to permit examination of physical evidence by the defense and offered the defendant a continuance for that purpose. The defendant expressly refused to utilize the opportunity of the continuance offered. Defense counsel did so asserting that a mid-trial continuance would alienate the jury against the defendant. While such assertion may have a degree of merit if the jury were of the thought that the continuance had been sought or granted for the convenience or necessity of the defendant's trial preparation, such mental impression was not shown to have been probable in this case.

It has been generally held that a continuance is the appropriate remedy for failure of the prosecution to comply with a discovery order. Pinkerton v. State (1972), 258 Ind. 610, 283 N.E.2d 376; Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738; Marine v. State (1973), Ind.App., 301 N.E.2d 778.

Buchanan, however, relies upon Johns v. State (1968), 251 Ind. 172, 180, 240 N.E.2d 60, 65, in which a continuance was held not always a sufficient remedy for prosecutorial non-compliance:

'There is no doubt that appellant, by failing to move for a continuance when the witnesses were called, failed to pursue his proper remedy. However, this Court cannot and should not, look with equanimity upon a blatant disregard of a court's order by the State in a criminal proceeding, particularly where the defendant's life is at stake. Had the State, prior to trial, sought a rehearing on defendant's motion, or made a good showing of inability to comply with the order, it would not now be in a position of having deliberately disobeyed the order of the trial court. We agree with appellant's counsel in their argument that it is fundamentally a denial of due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States to lead a defendant to believe that he has been afforded the right of discovery, and then permit the State of Indiana, in violation of an order of court, to present, during its case in chief, surprise witnesses whose testimony substantially added to the weight of the State's case.'

We are not, as in the Johns case, confronted with a 'blatant disregard of a court's (discovery) order'. Nor, as was the case in Johns, did the prosecution offer crucial testimony from surprise witnesses after misleading defendant to believe that full discovery had been afforded.

Be that as it may, not only did Buchanan here refuse a mid-trial continuance, the record reflects that defense counsel wrote a letter to the prosecutor on July 9, 1973 advising that the discovery order had not been honored. This was some three months prior to trial. Yet defendant proceeded to trial on October 3, 1973 without objection, without seeking enforcement of the discovery order and without a request for a pre-trial continuance.

In Dillard v. State, supra, 257 Ind. at 295, 274 N.E.2d at 394, the Supreme Court treated the question of waiver for failure to seek enforcement of a discovery order as follows:

'When a defendant in a criminal case obtains a favorable ruling from a trial court on a discovery motion and the defendant thinks the appellee has not complied with the order, the defendant must call this to the attention of the trial court in some manner and attempt to compel the prosecution to comply with the order. Appellant took no such action in this case and has therefore waived any error resulting from the non-compliance by the appellee.'

See also Merry v. State (1975), Ind.App., 335 N.E.2d 249; Rickard v. State (1973), Ind.App., 291 N.E.2d 916.

Although the prosecution did, according to the evidence, at least in part, fail to comply with the discovery order, defendant did not seek protective relief until the trial had commenced and jeopardy had attached. We hold that under such circumstances, a defendant may not be permitted to avoid the consequences of an otherwise fair trial.

EVIDENCE OVERWHELMINGLY SUPPORTS SECOND DEGREE BURGLARY CONVICTION

It is Buchanan's position concerning sufficiency of the evidence that notwithstanding the evidence hereinbefore recited, the jury should have believed his own version of the facts. Buchanan testified that he was merely walking down the alley behind the Goodyear Tire store, became frightened and hid behind some tires which were...

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8 cases
  • O'Conner v. State
    • United States
    • Indiana Appellate Court
    • 29 Noviembre 1978
    ...the defendant's proper course of action is generally to move for a continuance. See Gregory, supra; Dorsey, supra; Buchanan v. State, (1975) Ind.App., 336 N.E.2d 654. This is also the proper course for the defense in cases where the State calls a witness who is not listed until immediately ......
  • Carter v. State
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    ...Ind.App., 336 N.E.2d 707 (defendant exiting from back door of building, and shotguns strewn around within building); Buchanan v. State (1975), Ind.App., 336 N.E.2d 654 (defendant crouching inside store, and televisions moved and placed near the door); Cooper v. State (1975), Ind.App., 332 N......
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    ...v. State (1971), 257 Ind. 282, 274 N.E.2d 387, or a continuance. Dorsey v. State (1970), 254 Ind. 409, 260 N.E.2d 800; Buchanan v. State (1975), Ind.App., 336 N.E.2d 654. Under most circumstances, failure to seek a continuance waives any error resulting from the State's non-compliance with ......
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