Crawford v. State , 49S05–1106–CR–370.

• Citation: 948 N.E.2d 1165
• Decision Date: 23 June 2011
• Docket Number: No. 49S05–1106–CR–370.,49S05–1106–CR–370.
• Parties: Lamar M. CRAWFORD, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

948 N.E.2d 1165

Lamar M. CRAWFORD, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 49S05–1106–CR–370.

Supreme Court of Indiana.

June 23, 2011.

Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A05–1006–CR–377

SULLIVAN, Justice.

In In re Subpoena to Crisis Connection, Inc., No. 19S05–1012–CR–678, 949 N.E.2d 789 (Ind.2011), another case handed down today, we hold that the three-step test for the discoverability of information outlined in State v. Cline ( In re WTHR–TV ), 693 N.E.2d 1, 6 (Ind.1998), is not reached when information is protected by an unqualified privilege unless a criminal defendant's constitutional rights would be violated by enforcing the privilege. Because no privilege is at issue in this case, we apply the three-step test and conclude that the defendant has not satisfied the requirements for the discoverability of the information he seeks.

Background

This appeal stems from the conviction of Lamar Crawford for a murder committed in April, 2009.

Prior to his trial, a television production company called Lucky Shift, Inc., filmed various aspects of Crawford's murder investigation and interviewed the people involved. This footage was combined into an episode of a nonfiction police show called “The Shift” that aired on September 30, 2009.

Crawford requested an order from the trial court directing Lucky Shift to produce certain footage it had relating to his murder investigation. Lucky Shift objected. The trial court ordered many items requested by Crawford be disclosed by Lucky Shift for an in camera review, but it denied three of Crawford's requests apparently because they were not particular enough. Appellant's App. 296–97. These three requests form the basis of this appeal.

The Court of Appeals affirmed the trial court's ruling that the three requests at issue were not sufficiently particular under the three-step test set forth in State v. Cline ( In re WTHR–TV ), 693 N.E.2d 1, 6 (Ind.1998). Crawford v. State, 946 N.E.2d 1221, 1225–28 (Ind.Ct.App.2011).

Crawford seeks, and we now grant, transfer, thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). In doing so, we repeat the test used to determine the discoverability of information not otherwise protected by privilege in criminal cases and consider specifically whether the requests in this case were particular enough to meet that test.¹

Discussion

We reiterate that although both this case and In re Subpoena to Crisis Connection involve requests for production to private third-parties, the primary difference between the two is that the information sought in this case is not protected from disclosure by a privilege. The requested information at issue here includes:

Request # 18: Footage of any and all statements of officers, agents, or affiliates of [Indianapolis Metropolitan Police Department (“IMPD”) ] or any reenactment thereof.

Request # 19: Footage of anyone interviewed or questioned, or any reenactment thereof, in connection with the investigation of the death of Gernell Jackson.

Request # 20: Any and all recorded footage, both aired and unaired, relating to the investigation by the [IMPD] of a murder that is the subject of the Season Two, Episode One, of The Shift, an Investigation Discovery program, which aired September 30, 2009.

Appellant's App. 250–51. On transfer, Crawford does not expressly challenge the ruling on Request # 20; instead, he focuses his arguments on Request # 18 and Request # 19. Pet. to Transfer 7 (“With respect to Request # 18 and Request # 19, the defense properly made all of the requisite showings....”). Our opinion will therefore focus on those two requests. ²

The Indiana Rules of Trial Procedure apply in criminal proceedings in the absence of a conflicting criminal rule. Ind.Crim. Rule 21. In In re WTHR–TV, we identified the primary trial rules relevant to criminal discovery. 693 N.E.2d at 5–6. We recognized that criminal defendants may discover information from both parties and nonparties, Ind. Trial Rule 34, subject to the limitations on discovery provided in Trial Rule 26(B)(1):

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

T.R. 26(B)(1). Under Trial Rule 34(B), the party seeking discovery must request the material with reasonable particularity: “The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity.” Under Trial Rule 26(C), a trial court may restrict discovery to protect a party or a nonparty from “annoyance, embarrassment, oppression, or undue burden or expense.”

Pursuant to the Trial Rules, we have held that the following three-step test should be used to determine the discoverability of information in criminal cases: (1) there must be sufficient designation of the items sought to be discovered (particularity); (2) the items requested must be material to the defense (relevance or materiality); and (3) if the first two requirements are met, the trial court must grant the request unless there is a showing of “paramount interest” in nondisclosure. In re WTHR–TV, 693 N.E.2d at 6 (citing Kindred v. State, 540 N.E.2d 1161, 1174 (Ind.1989)).³ The Court of Appeals concluded that the requests at issue failed to even make the first showing (particularity). Crawford, 946 N.E.2d at 1228. We agree.

As the first requirement of the three, the particularity showing serves a gatekeeping function to the discoverability of information. We require that an item be designated with reasonable particularity for several reasons. It enables the subpoenaed party to identify what is being sought and the trial court to determine whether there has been sufficient compliance with the request, In re WTHR–TV, 693 N.E.2d at 6 (citing Sexton v. State, 257 Ind. 556, 558, 276 N.E.2d 836, 838 (1972)), and it prohibits the requesting party from engaging in an impermissible “fishing expedition,” id. at 7. “[W]hat constitutes reasonable particularity ‘will depend on the facts of each individual case, the crime charged, the nature of the items sought to be discovered, the degree of discovery of other items of information, the nature of the defense, etc.’ ” Id. at 6–7 (quoting Dillard v. State, 257 Ind. 282, 291, 274 N.E.2d 387, 392 (1971)). In general, the particularity requirement demands something more precise than “ ‘give me everything related to the case.’ ” Id. at 8.

With respect to Request # 18 and Request # 19, Crawford argues that he “was, in effect, simply seeking footage of interviews of potential witnesses, either police or civilian [and] either known to [him] or unknown, who might have information pertinent to [his] defense.” Pet. to Transfer 7. Although we understand why Crawford might want this information, we agree with the lower courts that he has failed to state with reasonable particularity what he wants. He seeks “footage of any and all statements of [IMPD] officers, agents, or affiliates” and “footage of anyone interviewed or questioned ... in connection with the investigation of the death of [the murder victim].” Arguably, he requests something more particular than “give me everything related to the case,” but he is still basically asking for anything anyone has ever said to Lucky Shift with regard to this case. We see no real difference between the two. In each of the challenged requests, Crawford does not state with reasonable particularity what footage or statements or...