Johnson v. State

• Decision Date: 15 January 1979
• Docket Number: No. 3-278A32,3-278A32
• Parties: Louis Ralph JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1035

384 N.E.2d 1035

179 Ind.App. 28

Louis Ralph JOHNSON, Appellant, v. STATE of Indiana, Appellee.

No. 3-278A32.

Court of Appeals of Indiana, Third District.

Jan. 15, 1979.

Dawn Wellman, Cohen & Thiros, Merrillville, for appellant.

Theo. L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found Louis Ralph Johnson guilty of Assault and Battery with Intent to Kill. He was then sentenced to the Indiana Department of Corrections for a period of not less than two (2) nor more than fourteen (14) years. In his appeal to this Court, Johnson raises the following issue: ¹

Did the trial court err by denying Johnson's motion for a continuance to prepare for the testimony of the State's surprise expert witness?

We reverse and remand for a new trial.

I. Facts

The charge filed against Johnson stems from the November 27, 1976 shooting of Freddy Marie Burns, his fiancee. While Johnson was driving Burns home from a social function which the couple had attended that evening, a "lovers' quarrel" developed between the couple. At one point in their argument, Johnson requested that Burns return the engagement ring which he had given to her. Burns complied, but shortly thereafter the couple reconciled their differences and Burns took the ring back.

They had used Burns' automobile that evening, and she agreed that Johnson could take her car home so that he could use it to run various errands the next day. For her personal safety, Burns wanted to take the handgun which she kept in the glove compartment. Johnson had removed the handgun, however, and left it at his mother's house. He suggested that she could get the gun some other time, but at Burns' insistence, they proceeded to his mother's house to pick up the gun.

At his mother's home, Johnson retrieved the gun and returned to the car, where he cradled the gun on his lap. The couple then revived their discussion about their relationship. Johnson expressed concern over Burns' lack of diligence in finalizing her pending divorce. Burns was about to explain the reason for the delay when the handgun discharged, wounding her in the head. Johnson rushed her to the hospital, where he explained to police that the shooting was accidental. Burns later told police that Johnson had intentionally shot her.

Shortly after the State filed charges against Johnson, the trial court, Sua sponte, entered its discovery order which required the State to list all persons which it intended to call as witnesses at trial. According to the order, all discovery was to be completed by March 30, 1977.

Despite the trial court's order, the State on Thursday, August 18, 1977, added the name of Sergeant Kenneth Roberts, a firearms expert, to the list of witnesses who were to testify at trial. The following Monday, August 21, the trial began.

Johnson immediately made alternative motions to prohibit Roberts from testifying or for a continuance to prepare to meet the testimony of Roberts. Johnson also suggested as a "third alternative" that he at least have the opportunity to depose Roberts before he testified. When the State suggested that Roberts' deposition could be taken that evening, counsel for Johnson pointed out that the immediacy of the trial would prevent follow up discovery on the deposition evidence. Johnson's counsel also noted that the State's solution would not allow adequate time to analyze the deposition for possible impeachment purposes, and further indicated that her schedule was already crowded with trial-related matters.

The trial court denied Johnson's motions for a continuance and to prohibit the testimony of Kenneth Roberts. Instead, the court delayed the testimony of Roberts from August 23, to August 24 for the purpose of allowing Johnson to depose Roberts. During the evening of August 23, counsel for Johnson did depose Roberts.

Prior to Roberts' testimony on August 24, Johnson reasserted his motion for a continuance. Johnson argued that the late notice given to him by the State prevented him from obtaining an expert witness to rebut Roberts' testimony. The trial court took the motion under advisement until "we hear what the testimony of the witness (Roberts) is." ²

Roberts' testimony focused on the physical acts necessary to discharge the handgun. According to Roberts, a "single action" firing of the handgun required both that the handgun be cocked and that four pounds of pressure be exerted on the trigger. Roberts testified that a "double action" firing of the weapon required only that twelve pounds of pressure be applied to the trigger. Roberts' testimony emphasized that the handgun did not have a sensitive trigger, and it was Roberts' conclusion that the gun would not fire unless the trigger was pulled.

The only other testimony regarding whether the gun was accidentally or intentionally discharged came from Burns and Johnson. Burns testified that "Louis raised the gun and said I was lying and shot." According to Johnson, the gun began slipping in his lap. When he grabbed for it, the gun became entangled in his coat and he began to lose his grip on the handle. He then grasped the gun more firmly and jerked it free from his coat, threw his hand up in the air, and the gun discharged. Johnson testified that he was not aware that his finger was ever on the trigger, and he did not remember cocking the handgun prior to its discharge. On cross exam, Johnson testified: "From the statement of Mr. Roberts, I'm sure it was cocked." No testimony was offered to indicate whether the bullet which injured Burns came from a single or double action firing of the handgun.

II. Motions for a Continuance

Johnson contends that the trial court committed reversible error by its failure to grant his motions for a continuance. He asserts that the mid-trial opportunity to depose firearms expert Roberts which the trial court afforded him did not allow him adequate time to prepare to question the expert or to use the deposition intelligently at trial. Additionally, Johnson maintains that the denial of a continuance precluded him from obtaining an expert witness to rebut the testimony of Roberts. It is Johnson's contention that he was prejudiced by the damaging nature of Roberts' testimony.

The State maintains that the trial court did not abuse its discretion when it denied Johnson's motion for a continuance. Alternatively, the State argues that Johnson's request for a continuance was in effect satisfied by the trial court's one day delay of Roberts' testimony. The State also suggests that the presence of the gun in the prosecutor's office during the six months preceding the trial afforded Johnson ample opportunity to prepare for testimony regarding the weapon, expert or otherwise. Finally, the State contends that no prejudice inured to defendant because the "primary evidence" against Johnson was the testimony of Burns and not that of Roberts.

" The object of a trial is the discovery of the truth." State ex rel. Keller v. Criminal Ct. of Marion Cty. (1974), 262 Ind. 420, 423, 317 N.E.2d 433, 435. To facilitate the ascertainment of the truth, the trial court, with its inherent power to guide and control the proceedings, has the power to order, Sua sponte, pre-trial discovery between the parties to a criminal proceeding. Id.; Johns v. State (1968), 251 Ind. 172, 179, 240 N.E.2d 60, 64; Bernard v. State (1967), 248 Ind. 688, 691, 230 N.E.2d 536, 539.

Here, the trial court, Sua sponte, entered a reciprocal discovery order which included among its directives an order that the State list the names of all those persons it intended to call as witnesses at trial. Over four months after discovery was supposed to have been completed and only one workday prior to trial, the State amended its list of witnesses to include the name of firearms expert Kenneth Roberts.

Usually, when a defendant is confronted with a "surprise witness," the proper response is to move for a continuance. Siblisk v. State (1975),263 Ind. 651, 656, 336 N.E.2d 650, 653. A continuance is not the sole remedy available. Other remedies may be invoked where circumstances dictate a more appropriate solution. Butler v. State (1978) ³, Ind.App., 372 N.E.2d 190, 193; State v. Buza (1975), Ind.App., 324 N.E.2d 824, 825.

At the outset of trial, Johnson tendered three alternate remedies to the trial court. He first requested that Roberts not be permitted to testify. This remedy is usually invoked only when it is shown that the State has blatantly and deliberately refused to comply with the court's discovery order. Gregory v. State (1972), 259 Ind 295, 300, 286 N.E.2d 666, 670. But see State v. Buza, supra at 826. Here, the record reveals that the State's non-disclosure was the inadvertent consequence of a change in case assignments among the prosecutorial staff. Accordingly, it was within the trial court's discretion to deny Johnson this remedy.

Johnson also sought either a continuance or to "at least have the opportunity to depose that witness (Roberts) before Court." We note that since the State did not show that Johnson had no legitimate defense interest in deposing Roberts or that the State had a paramount interest to protect, Johnson had a right under our rules of procedure to take the deposition of Roberts for discovery purposes. Murphy v. State (1976), 265 Ind. 116, 352 N.E.2d 479, 481-82. Under Indiana's reciprocal discovery system, full discovery is also extended to the State. State ex rel. Keller v. Criminal Ct. of Marion Cty., supra. Pre-trial discovery merely regulates the timing of disclosures, and provides both sides in a criminal proceeding with the time and information to adequately prepare its case. Id. 317 N.E.2d at 437.

According to the reciprocal discovery order which the trial court entered, Johnson was required to disclose any defenses which he intended to offer at trial. The discovery order insured that by March 30, 1977, the State would be...