Butler v. State

• Decision Date: 08 February 1978
• Docket Number: No. 1-977A221,1-977A221
• Parties: Lawrence Edward BUTLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 190

372 N.E.2d 190

175 Ind.App. 409

Lawrence Edward BUTLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-977A221.

Court of Appeals of Indiana, First District.

Feb. 8, 1978.

Dean H. Neeriemer, Washington, for appellant.

Theodore L. Sendak, Atty. Gen., Jane M. Gootee, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Lawrence Edward Butler (Butler), appellant, appeals his conviction by jury of Speeding ¹ and Driving Under the Influence. ²

STATEMENT OF THE CASE:

The appellant was charged by information with Speeding and Driving Under the Influence of Intoxicating Liquor. A verdict of guilty on both charges resulted and the jury imposed a fine of $50 for the speeding conviction plus a fine of $250 and 30 days imprisonment for Driving Under the Influence.

FACTS:

At approximately 8:00 p. m. on June 19, 1976, Indiana State Troopers Ron Thomas (Thomas) and Tom Cox (Cox) were checking traffic speed by radar on road U.S. 50. The appellant sped past Thomas and Cox causing a radar reading of ninety-six miles per hour. While the officers pursued Butler, he was clocked by the police car speedometer at between seventy-five and eighty miles per hour. After stopping the appellant, Trooper Cox noticed that Butler slurred his words, smelled of alcohol, and was unstable and staggering. Cox advised Butler that he was under arrest and would be required to undergo a chemical breath test. The appellant was taken to the Bedford police station where Mark Duncan (Duncan), a certified breath device operator, administered the test to Butler. The test resulted in a reading of .20 per cent blood alcohol. Defendant was advised of his constitutional rights after which Butler stated he understood them and signed a waiver of rights form. Butler was then asked to perform a series of dexterity tests such as touching his nose and walking a straight line. According to Trooper Cox, Butler had difficulty performing these acts.

ISSUES:

The defendant raises several allegations of error. However, since we reverse as to one issue we will address that issue only, to-wit:

Whether the trial court erred in allowing testimony, over defendant's objection, of witnesses not listed by the State contrary to the trial court's pretrial order.

DISCUSSION:

The trial court sent notice of a pretrial conference to be held on March 1, 1977, to the defendant's counsel and to the Deputy Prosecuting Attorney. According to the notice, the purpose of the conference was for the production of lists of witnesses, lists of items to be introduced, proposed stipulations of fact, and motions, known at that time, to be made before or during trial. This order was not complied with by either party. Defendant argues that since he had no witnesses he was not required to respond and therefore was not in violation of the court's order. Defendant contends that the court should have either sustained his objection to any references to State's witnesses not listed, or granted his motion for a continuance. The State agrees that although a continuance would have been proper, the trial court did not abuse its discretion in denying such a motion.

The techniques of discovery embodied within the civil rules of discovery are often applicable in criminal proceedings, and the trial court has the inherent power to implement such discovery techniques as are necessary to provide the defendant a full and fair hearing. The guiding principle to be followed by trial courts in dealing with criminal discovery was stated in Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536. That case spoke to the error in denying the defendant's request for a list of witnesses from the State:

"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." (Emphasis added.) 248 Ind. at 692, 230 N.E.2d at 540.

The purpose of the Bernard doctrine is to insure justice and fairness in criminal proceedings; an accused is not justly and fairly tried when "his counsel is compelled to maneuver in a factual vacuum." Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60. Nor is justice and fairness supported when convictions are obtained through surprise, or by the prosecution's misleading the defense. Johns, supra.

When a trial court is requested by a defendant in a criminal proceeding to order the State to furnish the defendant with the names and addresses of those witnesses upon whom the State intends to rely in the prosecution of the case, such court has a clear duty to so order, unless the State establishes a paramount interest in nondisclosure. To constitute sufficient paramount interest, the State must show that disclosure of the identity of the witnesses would subject them to harassment, would endanger their physical well-being or the well-being of their family or friends, or would facilitate perjury. Bernard v. State, supra. The power of a trial court to order disclosure by the State of its witnesses is grounded in the inherent power of the trial court to guide and control the proceedings.

Most discovery cases that have come to this court for review have been those in which a defendant has been the party asking for discovery. However, in this case the trial court, sua sponte, affirmatively ordered discovery. Discovery may be provided for by statute, court rule or granted by the inherent power of the trial court. State ex rel. Keller v. Criminal Court of Marion County (1974), 262 Ind. 420, 317 N.E.2d 433, and cases cited therein. It is clear that had the defendant requested and been granted such discovery, he would have to pursue his rights diligently; if he failed to do so, he could not complain.

Usually, when a witness not listed on the state's list of witnesses is called upon to testify, the proper course for defendant to follow is to move for a continuance. Keel v. State (1975), Ind.App., 333 N.E.2d 328; State v. Buza (1975), Ind.App., 324 N.E.2d 824; Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738. However, a continuance is not meant to be the only remedy available in every case where the prosecution attempts to call a surprise witness. To require the trial court to grant a continuance in every situation would remove necessary flexibility.

It is well-settled that a trial court must grant a continuance in order for counsel to have adequate time for preparation and investigation. It is equally well-settled that a motion for continuance based on nonstatutory grounds is in the trial court's discretion. Ind. Rules of Trial Procedure, Trial Rule 53.4; White v. State (1975), Ind., 330 N.E.2d 84; Blevins v. State (1973), 259 Ind. 618, 291 N.E.2d 84. In order to demonstrate an abuse of this discretion, the record must reveal that the defendant was prejudiced by the failure to grant the continuance. King v. State (1973), 260 Ind. 422, 296 N.E.2d 113. Thus, even with a showing of surprise, there must also be a showing that the defendant would be harmed by a denial of the continuance. Napier v. State (1971), 255 Ind. 638, 266 N.E.2d 199.

Unlike the case at bar, in Johns, supra, the appellant had filed and was granted a discovery motion requiring the disclosure of the state's witnesses. However, it is similar to the present case in other important respects. In Johns, the State had failed to list witnesses other than those listed on the indictment, thereby leading the defendant to conclude that the State intended to rely only on those witnesses listed on the indictment. So it is with the instant case. The defendant had a legitimate basis for relying on the state's information listing only Officer Cox as a witness. The State made no showing of inability to comply with the order or that disclosure would be adverse to the...