Hergenrother v. State

• Decision Date: 01 September 1981
• Docket Number: No. 1-181A27,1-181A27
• Citation: 425 N.E.2d 225
• Parties: Charles R. HERGENROTHER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 225

425 N.E.2d 225

Charles R. HERGENROTHER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-181A27.

Court of Appeals of Indiana, First District.

Sept. 1, 1981.

Charles L. Berger, Evansville, for appellant.

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

ROBERTSON, Judge.

Charles R. Hergenrother appeals his conviction for reckless homicide, a Class D felony, for which he received a two year sentence.

We affirm.

The facts favorable to the State reveal that the defendant was driving a pick-up truck on Oakhill Road, a narrow two lane road in Vanderburgh County, on June 29, 1979, at approximately 6:30 P.M. It was light and the weather was clear. Hergenrother was driving north and was accompanied by two friends. They saw a van approaching from the north, going south, and recognized it as belonging to a friend, John Cravens. From this point on accounts vary, but all eyewitnesses' testimony, including the defendant's testimony, shows that Hergenrother intentionally swerved his truck into the oncoming lane. This was done as a greeting in accordance with a custom among local teenagers. Cars would weave across the centerline of the highway and occasionally pass each other on the wrong oncoming side as a greeting. The eyewitness' accounts vary about who weaved across the centerline first, about the distances involved, and about how many times the vehicles weaved back and forth. All the witnesses agree that Hergenrother's truck was across the centerline when it collided with Craven's van. As a result of the collision, Craven's girl friend, Beth Smith, received fatal injuries.

Subsequently a charge of reckless homicide was brought against the defendant. During pretrial discovery proceedings, the trial court ordered Hergenrother to produce an accident report for the State. The report had been compiled by an agent for Hergenrother's insurance company in preparation for civil litigation arising from the accident. Before trial, and at trial, Hergenrother sought to have an accident reconstruction expert called as a witness at the State's expense because of his indigency. This request was denied. The State, however, did put on an accident reconstruction expert who had examined the accident scene and gave his opinion that Hergenrother's vehicle was almost entirely in the oncoming lane when the accident occurred.

Hergenrother argues the trial court denied him due process and abused its discretion in requiring him to turn over his insurance company's report to the State; that the trial court abused its discretion in denying his request for an expert witness and therefore, also denied him due process of law; that the trial court erred in admitting the testimony of the State's expert witness because a sufficient foundation was not laid for it; that the trial court erred in giving final instructions; and that his conviction was not supported by sufficient evidence.

Turning to Hergenrother's allegation that the trial court erred in requiring him to produce the insurance company's report, we agree that this material should not have been subject to a discovery order. As the defendant points out, witness statements taken by a defendant, his agents, or his attorney, in anticipation of litigation are not subject to pre-trial discovery over timely work-product objections. Spears v. State, (1980) Ind., 403 N.E.2d 828; George v. State, (1979) Ind.App., 397 N.E.2d 1027. An erroneous discovery order does not require reversal unless the defendant has been prejudiced by the evidence produced. Spears v. State, supra; George v. State, supra. Hergenrother concedes he was not prejudiced by the discovery and the facts reveal that the State did not make use of the report to supply any missing element in its case, so there is no basis for reversal on this issue.

Hergenrother argues he was denied due process by the trial court's refusal to have the State bear the costs of an accident reconstruction expert; costs which he could not assume because of his indigency. He relies on Himes v. State, (1980) Ind., 403 N.E.2d 1377, to support his argument. In Himes, our supreme court set forth the following criteria for reviewing the issue of whether an indigent criminal defendant was entitled to expert assistance at public expense:

The subject has been treated in considerable detail at 34 A.L.R.3d 1256, and it appears that, absent a statute, a rule or due process requirements of fundamental fairness, an indigent defendant is not entitled to the employment at public expense of experts to assist his attorney in the preparation of his case. The entitlement to such assistance has been generally held to rest in the discretion of the trial court. The determination must be made in the context of the case and we are of the opinion that only a clear abuse of that discretion will loom as a denial of due process.

403 N.E.2d at 1378.

In Himes, the defendant failed to show that his use of the expert would be more than exploratory and the denial of his request was upheld. Hergenrother distinguishes his situation from the Himes case on the grounds that his expert had...