O'Conner v. State, No. 2-378A99

• Docket Nº: No. 2-378A99
• Citation: 382 N.E.2d 994, 178 Ind.App. 415
• Case Date: November 29, 1978
• Court: Court of Appeals of Indiana

Page 994

382 N.E.2d 994 178 Ind.App. 415 William O'CONNER, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 2-378A99. Court of Appeals of Indiana, Fourth District. Nov. 29, 1978.

Page 996

[178 Ind.App. 416] Stanley S. Brown, Tippecanoe County Public Defender, Lafayette, for appellant-defendant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CHIPMAN, Presiding Judge.

Defendant-appellant William O'Conner was charged with Second Degree Murder and convicted in a trial by jury of Voluntary Manslaughter. ¹ Of the six issues raised, two must be resolved in O'Conner's favor requiring that a new trial be ordered. Of the four remaining issues, we treat only those likely to resurface upon retrial. We address the following questions:

(1) Should the trial court have granted O'Conner the opportunity to depose two State's witnesses?

(2) Did the trial court err in instructing the jury that voluntary manslaughter was a lesser included offense of second degree murder?

(3) Was there sufficient evidence to support O'Conner's conviction for voluntary manslaughter?

(4) Should the trial court have admitted testimony that O'Conner previously struck the deceased?

We reverse.

RIGHT TO DEPOSE

O'Conner contends the trial court erred in denying him the opportunity to depose two State's witnesses. The transcript reveals in pertinent part the following sequence of events:

(1) On October 12, 1976, O'Conner's Motion for Discovery which included a continuing request for a list of all witnesses

Page 997

was granted. The court set December 1, 1976 as the deadline for compliance with its order.

(2) The State did not file its list of possible witnesses until April 21, 1977. This list did not include the names of James Speck or James Morris.

(3) On September 12, 1977, the morning of the first day of trial, the State filed a supplemental list of witnesses which included the name of James Speck at an incorrect address.

(4) On September 15, 1977, the fourth day of trial, the State filed an additional list of witnesses which included the names of James Speck and James Morris.

(5) Both Morris and Speck testified for the State on September 16, 1977.

O'Conner requested the opportunity to depose both Morris and Speck as each began their testimony. He contends the trial court committed reversible error in denying those requests.

The State answers these contentions with two arguments. Citing Gutowski v. State, (1976) Ind.App., 354 N.E.2d 293, 295 which held, "discovery in favor of a criminal defendant is not required by the constitutional guarantee of due process," ² the State argues that O'Conner has failed to establish an abuse of the trial court's limited discretion. And second, the State asserts that O'Conner has failed to establish prejudice.

We address this issue with the benefit of numerous decisions in Indiana. However, pursuant to Murphy v. State, (1976) Ind., 352 N.E.2d 479, we must focus on two trial rules and two recent decisions:

Ind.Code § 35-1-31-8 (Burns 1975) has been superseded by the Rules of Trial Procedure and recent decisions of this Court. Trial Rules 30 and 31 provide for the taking of depositions in civil cases, and these rules apply to criminal cases through Ind.R.Crim.P. 21. In Carroll v. State, (1975) Ind., 338 N.E.2d 264, we applied Ind.R.Tr.P. 32 relating to the use of depositions to a criminal case. The 'balancing' doctrine of State ex rel. Keller v. Criminal Court of Marion County, (1974) 262 Ind. 420, 317 N.E.2d 433, displaces the remainder of the statute. Thus, the trial rules, in conjunction with Carroll and Keller, are the basic law governing the taking of depositions in criminal cases.

Murphy at 482. In light of Murphy and its progeny, we are presented with two questions: (1) Did the trial court err in denying O'Conner's oral motion for the opportunity to depose two State's witnesses? (2) Did O'Conner waive any error by failing to move for a continuance?

In order to insure justice and fairness in criminal proceedings and to prevent defense counsel from being compelled to operate in a factual vacuum, our courts have recently expanded the discovery "rights" of defendants. For over a decade, our Supreme Court has recognized at least a limited right to pretrial discovery by criminal defendants. See Antrobus v. State, (1970)253 Ind. 420, 254 N.E.2d 873; Johns v. State, (1968) 251 Ind. 172, 240 N.E.2d 60; Bernard v. State, (1967) 248 Ind. 688, 230 N.E.2d 536; Ortez v. State, (1975) Ind.App., 333 N.E.2d 838. Absent a showing by the prosecution of a paramount interest in nondisclosure, this right of discovery includes the right to the names of witnesses who will be used to support the State's case. Johns at 64.

A criminal defendant also has a general right to take depositions of the prosecution's witnesses. See State ex rel. Keller v. Criminal Court of Marion County, (1974) 262 Ind. 420, 317 N.E.2d 433; Amaro v. State, (1968)251 Ind. 88, 239 N.E.2d 394; Upshaw v. State, (1976) Ind.App., 352

Page 998

N.E.2d 102; Reynolds v. State, (1973) 155 Ind.App. 226, 292 N.E.2d 290. In protecting this discovery process, the trial court has the inherent power to impose sanctions such as a protective order barring testimony. Keel v. State, (1975) Ind.App., 333 N.E.2d 328, 332; See also Chatman v. State, (1975) 263 Ind. 531, 334 N.E.2d 673; Upshaw, supra; State v. Buza, (1975) Ind.App., 324 N.E.2d 824. Furthermore, if the defendant establishes that the prosecution thwarted or obstructed attempts at discovery, the exclusion of testimony is the appropriate remedy. Henson v. State, (1976) Ind., 352 N.E.2d 746, 749 Citing Gregory v. State, (1972) 259 Ind. 295, 286 N.E.2d 666; Dorsey v. State, (1970) 254 Ind. 409, 260 N.E.2d 800. Thus, the initial question which we address is whether the trial court erred in denying O'Conner his "right" to depose Morris and Speck.

We find Murphy, supra, dispositive of this question. In Murphy the defendant appealed the trial court's denial of his motion to depose seven of the State's listed witnesses. In reversing the trial court's denial, our Supreme Court stated:

Absent a showing that the defendant had no legitimate defense interest in support of his petition or that the State had a paramount interest to protect, criminal defendants have a right under our statute and rules of procedure to discovery, including the taking of depositions from those persons listed as State's witnesses. Johnson v. State, (1971) 255 Ind. 589, 266 N.E.2d 57; Howard v. State, (1969) 251 Ind. 584, 244 N.E.2d 127; Amaro v. State, (1968) 251 Ind. 88, 239 N.E.2d 394; Nuckles v. State, (1968) 250 Ind. 399, 236 N.E.2d 818. See also Antrobus v. State, (1970) 253 Ind. 420, 254 N.E.2d 873; Bernard v. State, (1967) 248 Ind. 688, 230 N.E.2d 536.

Murphy at 481-482. As in Murphy, the record in the case at bar does not reflect the State's objections to O'Conner's motion to depose or the court's reason for denial. We therefore must hold that the trial court abused its limited discretion in denying O'Conner his Right to take the depositions of State's witnesses Speck and Morris.

The State's argument that O'Conner has failed to show prejudice is without merit. Murphy, supra, was abundantly clear in holding the harmless error doctrine inapplicable to a defendant's right to depose State's witnesses. Murphy at 482-483; See also Brewer v. State, (1977) Ind.App., 362 N.E.2d 1175. The presence of other evidence sufficient to sustain O'Conner's conviction is of no significance. Murphy at 483. Nor would it matter whether O'Conner's task of rebutting the State's evidence seems insurmountable. Murphy at 482 Citing Frazier v. State, (1975) 263 Ind. 614, 335 N.E.2d 623.

We cannot presume, as a matter of law, that no exculpatory or mitigating evidence would have surfaced from the depositions sought. Even if it were determined retrospectively that nothing in aid of his defense was discoverable, we could not discount the effect of a denial. Effective counseling is dependent upon knowledge of the facts, and it is essential the weaknesses as well as strength be discovered and intelligently assessed.

Murphy at 483.

Although not raised in either brief, we address the question whether O'Conner has waived this error in the trial court by failing to move for a continuance. In cases where the State calls witnesses who were not included on the court ordered witness list, 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 prior to or during trial. See Luckett v. State, (1972) 259 Ind. 174, 284 N.E.2d 738; Kelley v. State, (1973) 156 Ind.App. 134, 295 N.E.2d 372. However, a continuance is not the only remedy available in every case to the defense where the prosecution attempts to call a surprise witness. See Johns, supra; Butler v. State, (1978) Ind.App., 372 N.E.2d 190; Keel, supra; Buza, supra. In holding that the testimony

Page 999

of State's witnesses whose names had not been furnished to the defendant must be excluded, Johns, supra, specifically found that the failure to move for a continuance will not waive any error where the State has blatantly and deliberately disregarded the court's order for discovery:

(I)t 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...