Davis v. State

• Decision Date: 23 July 1999
• Docket Number: No. 58A01-9807-CR-255.,58A01-9807-CR-255.
• Citation: 714 N.E.2d 717
• Parties: Charles DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

714 N.E.2d 717

Charles DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 58A01-9807-CR-255.

Court of Appeals of Indiana.

July 23, 1999.

Transfer Denied September 27, 1999.

Vicki L. Carmichael, Jeffersonville, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RATLIFF, Senior Judge

STATEMENT OF THE CASE

Charles Davis appeals his convictions of Aggravated Battery, a class B felony¹; Criminal Confinement with a Deadly Weapon, a class B felony²; Battery Resulting in Serious Bodily Injury, a class C felony³; and Criminal Recklessness Resulting in Serious Bodily Injury, a class C felony⁴. We affirm.

ISSUES

I. Whether Charles was tried and convicted of charges which were never filed against him.

II. Whether it was error to permit the victim who was named in the body of the information but not listed as a witness either on the information or on the State's witness list to testify over objection.

III. Whether the trial court erroneously instructed the jury regarding self-defense, and whether such instructions constitute reversible error.

FACTS

The facts most favorable to the verdict reveal that Charles and Lena Davis resided in an apartment complex in Rising Sun. On September 29, 1997, after returning to the apartment from meeting with his attorney regarding criminal charges which Lena had filed against him, Charles vented his anger towards Lena and told her he was going to have to do jail time because of her. Both then left the apartment. When Lena returned to the apartment, Charles was already there. He still was very angry and demanded that Lena return her wedding rings. Then, Charles beat Lena severely, striking her on the head and in the face with a .44 magnum handgun. Also, Charles tried to choke her and threw her against the walls and floor, smashed her face into the carpet and dragged her across the floor. Twice Lena tried to escape, but Charles prevented her from leaving. The beating lasted for at least two hours. By this time, it was the early morning hours of September 30th. A downstairs neighbor was awakened by the noise and called the police. When the police arrived about 1:30 a.m., Lena was screaming for help and begging Charles not to kill her. The officers broke into the apartment and observed Charles and Lena struggling over a handgun. The gun discharged, striking Lena in the leg.

Emergency medical personnel were called, and Lena was taken by helicopter to University Hospital in Cincinnati. Lena's face was severely damaged, and her nose was broken requiring surgery. She had significant blood loss, was in hemorrhagic shock, and would have died had she not received prompt medical attention.

Additional facts are stated in our discussion of the issues.

DISCUSSION AND DECISION

I. TRIAL AND CONVICTION ON UNFILED CHARGES

Charles contends he was tried and convicted of charges which were never filed against him. The essence of his argument is that the attempted amendment of the information was improper and that the amended information never was filed. We disagree.

In determining this issue, we must consider two separate but related matters. First, was it error for the trial court to permit the State to amend the information in a substantive manner by adding additional charges? Second, was the amended information ever filed against him?

Amendments to indictments or informations are governed by Ind.Code § 35-34-1-5. That part of the statute pertaining to matters of substance is subsection (b) which reads as follows:

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, at any time up to:

(1) thirty (30) days if the defendant is charged with a felony;

. . .

before the omnibus date. . . .

. . .

(d) Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare his defense.

Formerly, this statute contained a subsection (e) which provided: "Notwithstanding any other provision in this section, an indictment or information shall not be amended in any respect which changes the theory or theories of the prosecution as originally stated, or changes the identity of the offense charged. . . ." This subsection was repealed effective September 1, 1982.

The original information charging Charles with Battery Resulting in Serious Bodily Injury was filed on October 2, 1997. Initial hearing was held on October 7, 1997, and the omnibus date was set as November 20, 1997. On October 21, 1997, the State filed a motion to amend the information together with a proposed amended information adding the additional counts. On the same date, the trial court granted the State's motion to amend by written order which provided that "said Motion is hereby granted and the State is granted leave to amend the charging Information. . . ." (R. 22). The court's chronological case summary for that date recites: "Motion for leave to amend information and Order granting. Amended Information." (R. 2).

In determining whether or not it was proper to allow the amendment of the information, we must look both to the controlling statute and relevant case law. It seems clear that, if the proper procedures were followed, that Ind.Code § 35-34-1-5(b), subsequent to the 1982 repeal of former subsection (e), would permit substantive amendments. There is some confusion in case law, however. Some cases cling to the view that no amendment may be allowed which changes the theory of the prosecution or identity of the offense. See Wright v. State, 593 N.E.2d 1192, 1197 (Ind.1992),

cert. denied, 506 U.S. 1001, 113 S.Ct. 605, 121 L.Ed.2d 540; Hart v. State, 671 N.E.2d 420, 427 (Ind.Ct.App.1996). However, both Wright and Hart upheld the amendment of the charges because the substantial rights of the defendant had not been prejudiced. In Reynolds v. State, 536 N.E.2d 541, 543-44, (Ind.Ct.App.1989),

trans. denied, this court, while declaring it error to permit an amendment to change the theory of the prosecution from murder to felony murder, held it was not fundamental because the State could have dismissed and refiled the new charge within the statutory limitation period.

In a more recent case, this court again stated that an information may not be amended to change the theory of the case or the identity of the offense, but, held the information may be amended at any time to cure a defect if the substantial rights of the defendant are not prejudiced. Taylor v. State, 677 N.E.2d 56, 67 (Ind.Ct.App.1997), trans. denied. In determining whether the rights of the defendant have been prejudiced, factors to be considered are the availability of defenses, risk of double jeopardy, and the danger of misleading the defendant in preparing for trial. Id. In a similar vein, Wilkinson v. State, 670 N.E.2d 47, 48 (Ind.Ct. App.1996), trans. denied, instructs that the test of whether the State should be allowed to amend is whether the amendment affects the availability of a defense or the applicability of evidence which existed under the original information.

In State v. Gullion, 546 N.E.2d 121 (Ind. Ct.App.1989), this court held that the State could amend even after thirty (30) days prior to the omnibus date provided the defendant was given adequate notice and hearing on the amendment, and allowing a continuance, if requested, to allow the defendant to prepare his case. We said that requiring the State to dismiss and refile would exalt form over substance. Id. at 123. Thereafter, in Davis v. State, 580 N.E.2d 326 (Ind.Ct.App.1991), the amendment was not filed until twenty-nine (29) days before the omnibus date. Nevertheless, relying upon Gullion, we upheld the amendment. The court held that the defendant had been provided with an adequate opportunity to be heard, noting that notice of the amended information was sent to him nearly five months before the April 6 trial date and he did not object until April 8th. This court stated: "We do not read Gullion to require a trial court to set a hearing in every instance that an information is sought to be amended after thirty days prior to the omnibus date. . . . Rather, the requirement of an `opportunity to be heard' is satisfied when the defendant is given adequate time to object and request a hearing after proper notice." Id. at 328.

Again, in Todd v. State, 566 N.E.2d 67, 69 (Ind.Ct.App.1991), it was held that the trial court may allow an amendment of a substantive character under such terms as would preserve the defendant's rights to reasonable notice and opportunity to be heard and contest the amendment. The amendment in Todd changed the theory of the prosecution, but this court found the relevant version of the controlling statute no longer prohibited such a change.

In Haak v. State, 695 N.E.2d 944, 951-52 (Ind.1998), the omnibus date was in 1994 and the amendment in 1996. Our supreme court stated that if the amendment was of substance, or prejudicial to the defendant even as to form, it was impermissible under the statute. In footnote seven, the court pointed out the change in the statute, but said decisional law still prohibited changes in the theory of the case. However, the court held that because the defendant did not lose any defenses or evidence which would have been available to him, the amendment was not of substance and did not prejudice his substantial rights. The court stated further:

If the defense under the original information would be equally available after the amendment is made and

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