Counceller v. State

• Decision Date: 09 August 1984
• Docket Number: No. 383S97,383S97
• Citation: 466 N.E.2d 456
• Parties: Michael COUNCELLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 456

466 N.E.2d 456

Michael COUNCELLER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 383S97.

Supreme Court of Indiana.

Aug. 9, 1984.

George J. Lewis, Ronald R. Pritzke, Lineback & Lewis, P.C., Greenfield, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Michael Counceller, was convicted by a jury of burglary, a Class C felony, Ind.Code Sec. 35-43-2-1 (Burns 1984 Supp.), and of theft, a Class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1984 Supp.), and was found to be a habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1984 Supp.). Defendant received a total sentence of thirty-eight years. The following five issues are raised in this direct appeal:

1. Whether the state complied with the trial court's discovery orders;

2. Whether the trial court erred in replaying a witness's testimony;

3. Whether the trial court erred in not declaring a mistrial when the prosecutor made an improper statement;

4. Whether the trial court erred in failing to instruct the jury on the lesser included offenses of criminal conversion and criminal trespass; and

5. Whether defendant was deprived of a fair trial.

A review of the facts most favorable to the state shows that on the night of May 18, 1981, defendant and his accomplice, David Clark, broke into the Mt. Comfort Elementary School. Clark testified that they drove to the school in Clark's pickup and left it with the hood up on a nearby road. Clark and defendant took several items from the school, including a tool box, tools, pewter plates, and some money. They also took a safe, which was later abandoned.

Soon after leaving the school defendant and Clark were stopped by Officer Jim Bradbury because a tail light on the pickup was broken. Earlier, Bradbury noticed the same truck parked on the road with its hood up. Bradbury examined the drivers' licenses of both defendant and Clark and issued Clark a citation. The officer noticed at this time that a red, two-wheel dolly was in the back of the truck; he testified that the dolly was not in the pickup when he had examined it earlier. A red dolly was one of the items taken from the school. Clark testified that they threw away most of the other items they took. Defendant was eventually apprehended in Texas.

I.

Defendant first argues that the state failed to comply with the trial court's discovery orders. The basic allegations are that the state failed to adequately disclose the names and addresses of all of its witnesses, that the state failed to disclose a statement made by defendant to the police, and that the state failed to disclose all of the documents used to support the habitual offender finding.

The record in this case shows that on September 30, 1981, defendant filed a motion for discovery that requested, inter alia, all statements made by defendant, the names and addresses of all witnesses and persons who would testify, and the records and reports concerning defendant's arrests and convictions. The trial court granted the motion and ordered the state to comply before November 2, 1981. On May 11, 1982, defendant moved for a continuance on the ground that the state had not complied with the discovery order. The trial court granted the motion and ordered the state to comply with the discovery order within fourteen days. Although the state originally contended it had already complied with the order, it filed a formal response to the discovery requests on May 14, 1982. On September 7, 1982, the day the trial began, defendant again moved for a continuance on the ground that the state had not fully complied with discovery. The trial court denied the motion but ordered the state to produce the names of any witnesses not already identified. The state then filed a supplemental witness list the next day, naming eleven new witnesses. On the same day, defendant made another motion for continuance, which was denied.

Defendant claims the state failed to adequately disclose the names and addresses of some of its witnesses. In its responses to defendant's discovery requests the state listed "presently unknown officials of Boone and Marion [Counties]" and "Cindy Burk, address unknown." Defendant asserts that this was not sufficient compliance with the discovery order that required the "names and addresses of all persons ... that State of Indiana intends to call to testify ...." In a situation such as this, where there is a contention that the state violated a discovery order, 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 a fair trial is to exclude the state's evidence. Chandler v. State, (1981) Ind., 419 N.E.2d 142; Carson v. State, (1979) 271 Ind. 203, 391 N.E.2d 600. Here defendant did actually seek the appropriate remedy when he requested the continuances, one of which was granted and two of which were denied. The trial judge, however, has wide discretion to remedy any discovery transgressions. Chandler v. State; Reid v. State, (1978) 267 Ind. 555, 372 N.E.2d 1149. We cannot say that the trial judge exceeded his discretion in this case. Defendant waited until the day trial began to request a continuance despite the fact that the allegedly unsatisfactory answers to discovery were filed nearly five months before trial. The trial judge could rightfully conclude that because of the timing of the motion for a continuance other remedies were more appropriate. Thus the trial judge did compel the state to disclose all witnesses and addresses not previously disclosed. Further, although this resulted in eleven new witnesses being named, defendant has not shown with any degree of certainty how he was prejudiced by this. In short, defendant could have taken steps to remedy discovery violations before the start of trial but chose not to do so. The trial judge did not err in denying the continuance.

Defendant also contends that the state violated the discovery order when it failed to disclose a statement made by defendant to a sheriff's deputy. During the state's examination of Officer Jim Bradbury, the following question arose:

Q. "Now while you were transporting Mr. Counceller to the Hancock County Jail did you have any conversation with him?"

A. "We--"

Defendant then objected to the question on the ground that the state had not disclosed that the conversation took place. Outside the presence of the jury the state indicated that defendant told Bradbury that defendant was in the truck with Clark on the night of the burglary. At a hearing on defendant's motion to suppress Bradbury stated that he did not give this information to the prosecutor until September 9, 1982, the third day of trial. Defendant claimed that the failure of the prosecutor to reveal this conversation amounted to prosecutorial misconduct and that the trial court should have granted a mistrial.

The granting of a mistrial lies within the sound discretion of the trial court and it is proper only 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) 270 Ind. 331, 385 N.E.2d 1122. Defendant was not placed in a position of grave peril. While the state apparently did not disclose defendant made the statement, it was never introduced into evidence. Bradbury was only able to answer "We ..." before defendant objected, and the trial judge subsequently granted defendant's motion to suppress the statement. In addition, the jury was admonished to disregard the question. Under these circumstances we find no abuse of discretion.

Lastly, defendant appeals from the denial of his motion for a continuance filed before the habitual offender trial. Defendant contended the state tardily produced certain documents as well as a fingerprint card made immediately prior to the habitual offender trial. In addition to requesting a continuance defendant also filed a motion to dismiss the habitual offender count based on the late production.

Although defendant at trial objected to several of the state's exhibits, his primary contention on appeal relates to the documents containing defendant's fingerprints. Specifically, defendant claims the trial court erred in admitting state's exhibit number 48, which was a fingerprint card. Defendant asserts he was not supplied with the document, thus violating the discovery order. But this exhibit was not made until the day the habitual offender trial began; obviously the state was not required to turn over to defendant that which did not exist prior to trial. Furthermore, while it appears that one document used by the state was not furnished to defendant prior to trial, defendant has not sufficiently established that he was prejudiced. This document, state's exhibit number 43, was an identification card from the Indiana Reformatory and contained defendant's fingerprints and picture. Defendant contends that because the card was not produced earlier he was deprived of the opportunity to bring in his own expert to examine the fingerprints. Nevertheless, defendant was aware prior to trial that the state intended to prosecute him as a habitual offender using prior felonies from Boone County and Marion County. Documentation that was provided to defendant contained defendant's fingerprints, and he could have employed an expert if defendant felt it were necessary. Defendant did not then and does not now contend that an expert examination of the fingerprints would have established that they were not defendant's. We therefore find that there was not sufficient prejudice to require reversal.

II.

During deliberations on the underlying charges of theft and burglary, the jury requested that the instructions be reread and that Officer Bradbury's testimony be replayed. Defe...