Chandler v. State, 980S377

• Decision Date: 20 April 1981
• Docket Number: No. 980S377,980S377
• Citation: 419 N.E.2d 142,275 Ind. 624
• Parties: Otis CHANDLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 142

419 N.E.2d 142

275 Ind. 624

Otis CHANDLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 980S377.

Supreme Court of Indiana.

April 20, 1981.

Patrick Brennan, Dennis M. Brennan, Brennan & Brennan, Professional Corporation, South Bend, for appellant (defendant below).

Linley E. Pearson, Atty. Gen. of Indiana, Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

HUNTER, Justice.

The defendant, Otis Chandler, was convicted by a jury of felony murder, Ind.Code § 35-42-1-1(2) (Burns 1979 Repl.), and was sentenced to fifty years' imprisonment. He now presents eight issues for review:

1. Whether the trial court erred in denying defendant's motion to dismiss and motion for mistrial based on several discovery violations by the state;

2. Whether the trial court erred when it failed to grant defendant's motion to suppress his confession;

3. Whether the trial court erred when it prevented the defendant from ascertaining the identity of a police informant;

4. Whether the trial court erred in restricting certain cross-examination of a prosecution witness;

5. Whether the trial court erred in permitting the victim's son to remain in the courtroom after he testified;

6. Whether the trial court erred when it allowed the state to introduce color slides of the deceased victim;

7. Whether the trial court erred in denying defendant's motion for a separate trial; and

8. Whether the trial court erred when it refused to give certain instructions tendered by defendant.

The evidence most favorable to the state reveals that in the afternoon of September 18, 1978, defendant and several others burglarized the residence of Telesfor Radomski in South Bend, Indiana, during the course of which Mr. Radomski was shot and killed.

I.

About six months prior to trial, defendant made a discovery motion which was granted by the trial court. When trial commenced in January of 1980, it became apparent that the state had not fully complied with the court's discovery order. After several violations were revealed, defendant moved to have the charge against him dismissed, contending that he had been substantially prejudiced in the preparation of his case. In the alternative, a mistrial was requested. The trial court denied the motions, and defendant assigns this ruling as error.

In Carson v. State, (1979) Ind., 391 N.E.2d 600, 602, this Court stated:

"When the State violates a proper discovery order, a trial court has wide discretion to remedy the transgression.

" 'Obviously, the trial judge is usually in the best position to determine what harm, if any, evolved from a violation, whether or not such harm can be eliminated or satisfactorily alleviated and the dictates of fundamental fairness. Absent clear error in his decision it should not be overturned.' Reid v. State (1978) Ind., 372 N.E.2d 1149, 1155." Accord, O'Conner v. State, (1980) Ind., 399 N.E.2d 364.

Furthermore, it is well settled that the granting of a mistrial lies largely within the sound discretion of the trial court and is only proper where, under all the circumstances, the defendant has been placed in a position of grave peril to which he should not have been subjected. Tinnin v. State, (1981) Ind., 416 N.E.2d 116; Schmanski v. State, (1979) Ind., 385 N.E.2d 1122.

We will now proceed to examine the specific instances of discovery violations. On the second day of trial during direct examination of one of its witnesses, the state attempted to introduce some photographs of the decedent's body and the murder scene which defense counsel claimed had not been given to him contrary to the discovery order. Over defendant's objection, the photographs were admitted into evidence. First, we note that defendant made no motion for a continuance in order to fully examine the photographs. Also, defense counsel admitted in open court that he had been informed by the state that some pictures had been taken and that he had not taken advantage of the state's invitation to visit the prosecutor's office to make sure that discovery had been completed.

While it may still be arguable whether or not the state's actions constitute minimal compliance with the discovery order, defendant has not demonstrated to this Court, in any event, how he was substantially harmed. He has made no showing that the existence of these photographs necessitated any trial preparation beyond what he already knew he had to do. Crosson v. State, (1978) 268 Ind. 511, 376 N.E.2d 1136.

Later that same day, the state called the evidence technician from the South Bend Police Department's homicide unit who testified that he had sent some cards containing the rolled and flat impressions of defendant's fingerprints to the FBI in Washington, D. C. for comparative analysis with some latent prints discovered at the murder scene. He could not recall the date that he had mailed the cards, and the state sought to refresh his memory with a transmittal receipt. Defense counsel objected for the reason that the receipt had not been given to him in violation of the discovery order. The objection was summarily overruled.

Assuming the receipt was even covered by the discovery order, defendant has made no argument whatsoever as to how he was harmed by the failure to disclose. He has made no showing that he lacked knowledge of the mailing date or how that information was relevant to the preparation of his defense.

Besides granting the defendant's discovery motion, the trial court had also ordered the state to transcribe all grand jury minutes and make them available to defense counsel. On the first day of trial, it was discovered that not all of the grand jury minutes had been transcribed and been made available. The trial court ordered that it be done immediately. In the afternoon of the second day of trial, defense counsel objected to the testimony of state's witness Artie Lamar James on the basis that over the lunch hour, he had first been given the grand jury minutes containing James's testimony and therefore did not have sufficient time to review them for effective cross-examination.

It was also brought out at this time that defense counsel had been trying to locate Mr. James prior to trial but had been unable to get an address from the state. Due to a breakdown in communications in the prosecutor's office, the prosecuting attorneys in defendant's case did not learn of the address until five days before trial and did not convey that information to defense counsel. At this point, the trial court asked defense counsel what he wanted and counsel requested that there be an adjournment until the next morning in order to give him more time to talk to James. The court granted that request and ordered that James be made available for an interview that evening outside the presence of the prosecutor.

When trial reconvened the next morning, defendant did not allege that his meeting with James had been insufficient for purposes of preparing him for trial. In fact, the record reveals an extensive cross-examination of James by defendant's attorney. Moreover, the trial court granted the specific relief requested by defense counsel. When the state has violated the trial court's order for discovery, a continuance is the most appropriate remedy unless the state's action is so misleading or demonstrates such bad faith that the only way to avoid a denial of the defendant's fair trial rights is to exclude the state's evidence. O'Conner v. State, supra; Carson v. State, supra.

On the morning of the third day of trial, defense counsel informed the court of additional discovery violations by the state. He stated that the previous evening, the attorney for Artie James had given him a police report prepared by Officer Charles Mahank which had never been delivered to him by the state. That report disclosed that the grand jury had convened a second time. Defense counsel said that he had not been given a transcription of that hearing. In addition, defendant's attorney told the court that that morning, the prosecutor gave him another police report prepared by Officer Mahank which he had not seen before. It was at this stage of the proceeding that defense counsel made the motion to dismiss and the motion for mistrial.

The prosecutor informed the court that a transcript of the second grand jury meeting had just been given to him, and a copy was then turned over to the defense. The only person testifying at this second hearing was Officer Mahank. He did not testify at trial until the next day, the fourth day of trial. Therefore, defendant was able to review the transcript overnight prior to cross-examining Officer Mahank the following day. Defendant did not move for a continuance when it came time to cross-examine the witness, and a lengthy and extensive cross- examination was conducted. Defendant has made no showing on appeal how he was prejudiced by the late disclosure of these grand jury minutes.

As for the police reports, defendant has not even attempted to explain how he was prejudiced. He merely states that they represent further examples of the state's violation of the pretrial discovery order.

One report was an investigation report, most of which was comprised of statements made to the police by defendant and Artie James. Defendant has not demonstrated that these statements contained facts that he did not already know. Indeed, the content of defendant's statements closely parallels his written confession made to police, and there is no contention that defense counsel had not been given a copy of that. The other report was merely an arrest report of one of defendant's codefendants. It contains nothing of substance as to the events surrounding the commission of the crime.

This Court should not be understood as approving the manner in which the state conducted discovery in this case. We fully understand the trial court's expression of displeasure when it stated:

"I might tell ...