Gutowski v. State, 3--875A186

Decision Date14 September 1976
Docket NumberNo. 3--875A186,3--875A186
Citation170 Ind.App. 615,354 N.E.2d 293
PartiesDavid GUTOWSKI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court

James E. Foster, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

A jury found David Gutowski guilty of aggravated assault and battery. IC 1971, 35--13--3--1 (Burns Code Ed.). On appeal, Gutowski raises the following issues for our review:

(1) Did the trial court err in ruling that the complaining witness need not answer interrogatories and in refusing to grant Gutowski's motion for additional time to file discovery motions?

(2) Did the trial court err in denying Gutowski's request for a bench warrant to secure the attendance of an absent witness?

(3) Did the trial court err in instructing the jury on the offense of aggravated assault and battery?

(4) Did the trial court err in allowing testimony regarding the propensity of the complaining witness to start fights?

(5) Did the trial court err in admitting a photograph of the wounds inflicted?

We find no reversible error, and affirm.

I. Discovery

Gutowski contends that he was denied pretrial discovery when the trial court ruled that the complaining witness need not answer interrogatories. He argues that he was forced by this ruling to use the more cumbersome and expensive technique of depositions. He also argues that his interrogatories were really depositions upon written questions and that, by statute, he had the right to take such interrogatories.

IC 1971, 35--1--31--8 (Burns Code Ed.) provides in part:

'A defendant, by leave of court or by written notice to the prosecuting attorney, may take the depositions of witnesses residing within or without the state, to be read on the trial; . . .'

This right to discovery is subject to the limited discretion of the trial court where there is a paramount state interest, the possibility of a fishing expedition, or the harassment of witnesses. Amaro v. State (1968), 251 Ind. 88, 239 N.E.2d 394; Reynolds v. State (1973), Ind.App., 292 N.E.2d 290. The trial court also has the inherent power to order various types of discovery:

'The rules of discovery applicable in civil proceedings in Indiana courts are not applicable as such in criminal proceedings. However, the techniques of discovery embodied in those rules will often be applicable in criminal proceedings and the trial court has the inherent power to implement such discovery techniques as are necessary to provide the defendant a full and fair hearing.' Antrobus v. State (1970), 253 Ind. 420, 423, 254 N.E.2d 873, 874 (our emphasis). See also Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536.

Clearly, a criminal defendant may waive any pretrial discovery rights by failing to exercise them or pursue them. Discovery in favor of a criminal defendant is not required by the constitutional guarantee of due process. Cicenia v. LaGay (1958), 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; Bernard v. State, supra.

In the present case, on March 6, 1974, the trial court entered the following order:

'The defendant is now granted until April 11, 1974 in which to complete discovery depositions to be taken of State's witnesses.'

Apparently the trial court set this time limitation because of the many continuances of hearing dates requested by Gutowski between December 1973, and March 1974. The trial court had the inherent power to issue such an order to prevent delay of the proceedings. See Antrobus v. State, supra, 253 Ind. at 436, 254 N.E.2d at 881. Gutowski's counsel was present in court when the trial court entered the order. He did not object or even suggest that the trial court exceeded its authority in issuing the order or that the time limitation in the order was unreasonable.

Gutowski did nothing until April 11, 1974, when he filed with the court a set of written interrogatories to be answered by the State's complaining witness. The State objected to the interrogatories on the ground that Indiana Rule of Procedure, Trial Rule 33, allows written interrogatories to be served only on parties. The trial court set April 30, 1974, as the date for arguments on the issue and granted the State and Gutowski until April 26, 1974, to submit 'any written memorandum they desire.' The State filed a written memorandum. On April 30, 1974, at the request of Gutowski, the hearing date was continued to May 14, 1974. Later, when Gutowski failed to appear at the hearing on May 14, and failed to submit any memorandum, the trial court ruled that the complaining witness need not answer the interrogatories.

We conclude that the court's ruling was not error under the facts of this case. By so holding, we do not intend to imply that depositions upon written questions are outside the scope of IC 1971, 35--1--31--8 (Burns Code Ed.). The language of this section is broad enough to include both oral and written depositions. Nor do we intend to imply that the technique of discovery by interrogatories submitted to a complaining witness is improper in a criminal case. The trial court has the inherent power to apply the techniques of discovery embodied in the civil rules and is not bound by the limiting language contained in those civil rules. In the proper case, discovery by written interrogatories served on non-parties may well be appropriate as a less coumbersome and less expensive technique than discovery by depositions.

Our holding is based on Gutowski's waiver of pretrial discovery by his failure to pursue his rights with any diligence. Gutowski filed the written interrogatories, but failed to appear to argue why the technique of discovery by written interrogatories would be appropriate and should be allowed. After the court's ruling on May, 14, two trial dates were set, and still Gutowski did nothing to suggest that he was at all interested in pretrial discovery. Finally, on September 30, 1974, the court set January 27, 1975, as the day of trial. Later, on October 9, 1974, Gutowski filed a motion to reconsider the May 14 ruling and argued for the first time that the written interrogatories were really depositions upon written questions. Even if we assume arguendo that the interrogatories were, in fact, depositions upon written questions, and if we assume that Gutowski was entitled to take such depositions by the provisions of IC 1971, 35--1--31--8 (Burns Code Ed.), we find no error in the court's overruling of the motion to reconsider. Gutowski was ordered to 'complete discovery depositions' by April 11, 1974. He did not complete his depositions within the time limitation set by the court. He did not object to the setting of the time limitation nor did he present to the court any arguments regarding why the time period should be extended. The motion to reconsider the May 14 ruling raised only the issue of the propriety of that ruling, and, given Gutowski's lack of diligence, we conclude that the May 14 ruling was not in error.

After the trial court overruled Gutowski's motion to reconsider on November 8, 1974, Gutowski requested 'additional time within which to file Motions for Discovery.' The record shows that the trial court was confronted only with a loosely worded oral motion. Gutowski did not indicate to the trial court, nor does he tell this Court on appeal, what type of discovery he desired, why such discovery would be material to his defense, what specific information he hoped to uncover, and how his lack of discovery would prejudice his defense. The trial court is not required to assume that an unidentified method of discovery of unidentified information would be beneficial to Gutowski's defense. Likewise, we cannot assume prejudice to the defense from a general allegation that Gutowski was forced to proceed to trail in a factual vacuum. Gutowski was not denied the right to discovery. He failed to comply with or object to the trial court's time limitation on discovery depositions. He failed to appear for argument. He failed to specify the type or the materiality of the discovery he would pursue between November 8, 1974, and January 27, 1975. And he has failed to specify to this Court how he was prejudiced.

We conclude that Gutowski has shown no revesible error on the discovery issues.

II. Bench Warrant

Gutowski contends that the trial court committed reversible error when it denied his request for a bench warrant to secure the attendance of an absent witness who had been subpoenaed by the State. Gutowski made this request before trial when he noticed that the witness was absent. The trial court did not rule on the request at that time, but stated: 'Well, let's see what the return says before we issue the warrant.' Gutowski did not renew his request for a warrant before the presentation of his evidence, and he did not request a continuance to subpoena the witness. He has not shown on appeal that the absent witness would, in fact, have testified in his favor. This issue has been waived.

III. Instruction

Gutowski contends that the trial court erred in instructing the jury on the offense of aggravated assault and battery. Gutowski did not properly object to the instruction at trial. Nonetheless, conviction on a charge which is not a properly includable offense is fundamental error, (see Young v. State (1967), 249 Ind. 286, 231 N.E.2d 797; Allison v. State (1973), Ind.App., 299 N.E.2d 618), and we must consider the merits of Gutowski's argument.

Gutowski was charged with assault and battery with intent to kill. The charging paper stated:

'. . . David Gutowski did then and there unlawfully feloniously and purposely, without malice, express or implied, but in a sudden heat, in a rude, insolent and angry manner unlawfully touch, strike, cut, stab and wound one C. TED WATTS with a certain knife, which he, the said DAVID GUTOWSKI, then and there had and held in his hands,...

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10 cases
  • O'Conner v. State
    • United States
    • Indiana Appellate Court
    • November 29, 1978
    ...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......
  • Tinnin v. State
    • United States
    • Indiana Supreme Court
    • February 5, 1981
    ...delaying the proceedings. Antrobus v. State, (1970) 253 Ind. 420, 254 N.E.2d 873; Gutowski v. State, (1976) 170 Ind.App. 615, 354 N.E.2d 293 (Garrard, J., and Hoffman, J., concurring in result). Defendant stresses the fact that a new attorney had just been appointed for him on August 1, 197......
  • Colburn v. State
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    ...a lesser included offense. Thomas v. State, (1970) 254 Ind. 600, 261 N.E.2d 588 (with two judges dissenting); Cf.: Gutowski v. State, (1976) Ind.App., 354 N.E.2d 293 (a stab wound like a bullet wound sufficiently charges great bodily harm).3 The information charged Colburn with first-degree......
  • Duling v. State, 1--376A41
    • United States
    • Indiana Appellate Court
    • September 14, 1976
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