Eubank v. State

• Decision Date: 16 December 1983
• Docket Number: No. 482S159,482S159
• Citation: 456 N.E.2d 1012
• Parties: Bertram B. EUBANK, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1012

456 N.E.2d 1012

Bertram B. EUBANK, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 482S159.

Supreme Court of Indiana.

Dec. 16, 1983.

Merrill W. Otterman, Howard County Deputy Public Defender, Kokomo, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted, following a trial by jury, of Escape, a class C felony, Ind.Code Sec. 35-44-3-5 (Burns 1979), two counts of Kidnapping, a class A felony, Ind.Code Sec. 35-42-3-2 (Burns 1979), Armed Robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979), and Theft, a class D felony, Ind.Code Sec. 35-43-4-2 (Burns 1979), and sentenced to a total of 132 years imprisonment. He had also been charged as an habitual offender, but that charge was dismissed following the return of the verdict upon the other charges.

In this direct appeal he raises six (6) issues:

1. Whether the trial court erred in denying Defendant's motion to order the issuance of subpoenas for several witnesses held in custody;

2. Whether the trial court erred in denying Defendant's motion in limine by which he requested that the State be precluded from inquiring into his past criminal history in the event that he testified in his own behalf;

3. Whether the trial court erred in permitting a witness to testify, over Defendant's objections, to an escape by the Defendant, which occurred subsequent to the offenses being tried;

4. Whether the trial court erred in denying Defendant's motion for severance of offenses for trial;

5. Whether the trial court erred in denying Defendant's motion for a continuance made at the time of sentencing;

6. Whether the imposition of a 132 year sentence violated the Constitution of the State of Indiana or the United States Constitution.

The record disclosed that on September 25, 1979, Patrolman John Henderson of the Madison County Police Department was dispatched to the Michigan City State Prison Subsequently, the Defendant forced Mary Ann Yockey, a high school student who was driving her mother's automobile, to drive her car off the road. Defendant removed several objects from Henderson's squad car, placed them in the car Yockey had been driving, and told her to sit in Henderson's car. She complied, and he drove away in her car. He was later apprehended.

to transport the Defendant from the prison to Madison County. Henderson took custody of the Defendant who was restrained by a belly chain with attached handcuffs and leg chains and placed in the front passenger seat of Henderson's patrol car. Enroute to Madison County, the Defendant, free of his restraints, suddenly lunged toward Henderson, grabbed his service revolver, and ordered him to drive down a country road. The Defendant, threatening to shoot Henderson if he did not comply, ordered Henderson to stop the automobile, get out of the car, undress, and walk into a cornfield. Henderson did comply, and the Defendant then drove away in Henderson's squad car.

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ISSUE I

On October 19, 1981, the first day of trial, the Defendant presented a motion for subpoena of twelve witnesses who were inmates of the State Prison. Three of the persons thereby sought had been among ten previously subpoenaed upon Defendant's motion. The court conducted a hearing on the Defendant's second motion and, subsequently, denied it.

Defendant contends that the court's denial of his second motion denied him due process of law. He cites Washington v. Texas, (1967) 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, to support his right to present a defense: "Just as an accused has a right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law." Id. at 19, 87 S.Ct. at 1923, 18 L.Ed.2d at 1023.

We, of course, recognize Defendant's right to present a defense and to have compulsory process for obtaining witnesses; however, the right to compel the attendance of witnesses is not without limitation. See, e.g., Owens v. State, (1981) Ind., 427 N.E.2d 880, 882. For instance, federal courts, in applying Fed.R.Crim.P. 17(b) regarding the issuance of subpoenas for named witnesses when the defendant is an indigent, have held that the right to have a subpoena issued is not absolute, that the trial court has wide discretion to determine when a subpoena will be issued, and that an appellate court will not disturb the exercise of discretion unless exceptional circumstances compel it. U.S. v. Espinoza, 641 F.2d 153, 159 (4th Cir.1981) cert. den. 454 U.S. 841, 102 S.Ct. 153, 70 L.Ed.2d 125 (1981); U.S. v. Gilliss, 645 F.2d 1269, 1279 (8th Cir.1981); U.S. v. Micklus, 581 F.2d 612, 616 (7th Cir.1978); U.S. v. Martin, 567 F.2d 849, 852 (9th Cir.1977). In particular, a trial court need not grant a Rule 17(b) motion if the requested witness would provide only cumulative testimony. U.S. v. Espinoza, 641 F.2d 153, 159 (4th Cir.1981); U.S. v. Gallagher, 620 F.2d 797, 800 (10th Cir.1980) cert. den. 449 U.S. 878, 101 S.Ct. 224, 66 L.Ed.2d 100; U.S. v. Micklus, 581 F.2d 612, 616 (7th Cir.1978); U.S. v. Greene, 497 F.2d 1068, 1079 (7th Cir.1974) cert. den. 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); U.S. v. Panczko, 429 F.2d 683, 688 (7th Cir.1970) cert. den. 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252 (1970).

The Indiana Statute pertaining to subpoena of witnesses held in custody which was in effect at the time of this cause was Ind.Code Sec. 35-1-33-1 (Burns 1979) which provides:

"When it is necessary to procure the testimony of a person imprisoned in any penal facility on the trial of any issue upon an indictment or information, or upon any hearing before a grand jury, the court may order a subpoena to be issued, directed to the custodian of the facility, commanding him to bring the witness named in the subpoena before the court."

The statute first contemplates a showing by the moving party that the testimony is "necessary." We have held that the standard applicable to rulings upon a motion to produce a witness held in a penal institution is whether the Defendant has shown that the testimony of the incarcerated witness is material to the case. Owens v. State, (1981) Ind., 427 N.E.2d 880, 882. The statute next provides that the court "may" order a subpoena to be issued. We hold that the ruling on the propriety of a motion for subpoena for an incarcerated witness lies within the sound discretion of the trial court and that his ruling will not be disturbed absent a clear showing of abuse of that discretion.

During the hearing on Defendant's motion, Defendant's counsel first indicated that he was not sure as to what each of the proposed witnesses would testify and that ultimately some or none of them might be of assistance to the defense. Later, by an offer to prove, he stated that some of the proposed witnesses could testify as to Defendant's state of mind, which he claimed was pertinent to his insanity defense, and that some could testify regarding the conditions and environment of the Indiana State Prison and the treatment of the Defendant there, factors which bear upon his mental state. Other witnesses could, Defendant contended, testify that they had seen the Defendant mail money to John Henderson as a bribe to release him from his custody.

The Defendant failed to show that any of the proposed witnesses would provide new and essential testimony. In addition, at the trial, the Defendant called only seven of the ten incarcerated witnesses who had been subpoenaed pursuant to the first motion. One of those witnesses testified that Henderson had previously helped him escape after being paid $1000. He further testified that he was the intermediary who had arranged for Henderson to permit Defendant to escape. His testimony also included observations of prison conditions and the Defendant's mental state. Another witness testified that he had seen the Defendant mail money to someone named "Hendricks of Henderson or something like that." A third witness testified that he mailed money for the Defendant on two separate occasions to "John Henderson." Four other witnesses testified regarding prison conditions, Defendant's treatment in prison, his mental state and various personality changes which they had observed. Other witnesses, who were no longer in custody, also testified regarding prison conditions and Defendant's mental state.

We find no error in the court's denial of the second motion to subpoena witnesses held in custody. In denying the Defendant's motion, the trial judge noted that he had honored all prior requests and that this one came in the midst of voir dire examination of the prospective jurors. He further noted that the Defendant had not stated that the proposed witnesses had "some peculiarly new type of testimony that [was] essential." It is apparent that even if the subpoenas had been issued and the anticipated evidence presented, that evidence would have been merely cumulative and that the sum of the evidence, in all probability, would not have produced a different result. The trial court did not abuse its discretion by denying the Defendant's motion; no error or prejudice resulted, and the Defendant's constitutional rights were not infringed.

ISSUE II

The Defendant filed a motion in limine to preclude the State from inquiring into his past criminal record during cross examination, in the event that he should take the witness stand. He further sought to preclude the State from asking any questions referring to his prior convictions or disclosing allegations of prior convictions from the jury, until it had reached a verdict on the principal charges. The motion was overruled and denied. The Defendant did not testify in his own behalf but contends that the denial of his motion in limine impermissibly burdened...