Johnson v. State

• Decision Date: 28 January 1971
• Docket Number: No. 769--S--162,769--S--162
• Parties: Melvin Allison JOHNSON, Omar Shabazz a/k/a Eldridge Morrison, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 57

266 N.E.2d 57

255 Ind. 589

Melvin Allison JOHNSON, Omar Shabazz a/k/a Eldridge Morrison, Appellants, v. STATE of Indiana, Appellee.

No. 769--S--162.

Supreme Court of Indiana.

Jan. 28, 1971.

Rehearing Denied March 12, 1971.

Robert G. Mann, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., R. Michael Bruney, Deputy Atty. Gen. of Indiana, for appellee.

ARTERBURN, Chief Justice.

This is an appeal from the Marion Criminal Court, Division One. Defendants were charged by affidavit with the crime of conspiracy to commit a felony, viz., second degree burglary. The case was tried by jury and each defendant was found guilty as charged.

The facts most favorable to the State indicate that on March 13, 1968, the defendant Melvin Allison Johnson made acquaintance with Allen R. Watkins who was doing special investigation for the Indianapolis Police Department and the Federal Bureau of Investigation of the Black Panther organization in Indianapolis. Pursuant to their meeting, which was at General Hospital in Indianapolis where Watkins was employed part-time, they had numerous conversations regarding racial relations in Indianapolis. Watkins joined the Panther organization and shortly thereafter met the defendant Omar Shabazz when target practicing with some of the organization's members.

Following a couple of preliminary meetings where plans were discussed, it was determined that the small group, including the defendants and Watkins, would meet on June 22, 1968, at a bar called the Nineteenth Hole. Those involved would bring their gloves and other equipment and then proceed to the Marine Armory. Arriving at the Marine Reserve Training Center, the men gained entrance into a building marked 'explosives.' Once inside, however, they discovered the building contained only paint and thinners. They went to another building, but heard voices and decided they had better not break in at that time. The next day, June 23, 1968, they decided to return to the Training Center where they again broke in, using their equipment. Upon gaining entrance into the building this time, they were confronted with officers of the Indianapolis Police Department and FBI agents. Defendant Shabazz and Watkins were immediately taken into custody, but defendant Johnson ran from the scene. He was apprehended shortly thereafter.

The appellants first argue on this appeal that they were denied a fair trial because their motions for discovery and for taking depositions of state's witnesses were denied.

In Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536, and in Antrobus v. State (1970), Ind., 254 N.E.2d 873, we established the principle that a defendant is generally entitled to a complete list of the names and addresses of state's witnesses. In the case before us, the defendant got such a list. It was held in the Bernard case that discovery in favor of the accused is not required by the constitutional guaranty of due process, but may be granted by the trial court, and in so doing it is the duty of the trial court to regulate the proceedings commensurate with the rights of both the State and the defendant. Burns' Indiana Stat.Anno. § 9--1610 (1956 Repl.) states that a defendant by 'leave of court' or by written notice to the prosecuting attorney, may take the depositions of witnesses to be used at the trial.

In Amaro v. State (1968), Ind., 239 N.E.2d 394, 397, Judge Lewis, speaking for this Court, stated:

'This result does not imply, however, that the Trial Court has no control over the exercise of the privilege granted the defendant. It is significant that the legislature did not state that the defendant shall be permitted the taking of depositions of any witness, but rather stated that he may, by leave of court or by notice to the prosecuting attorney, take the deposition of witnesses residing within or without the state. We believe that this distinction in the language provides, consistent with the traditions of the common law in this area, for a selective and discriminating control by the Trial Court. * * *'

The trial court in this case heard evidence and arguments of the parties involving the respective interests of the parties in the granting or the denial of the petition. Part of the testimony presented by the prosecuting attorney was that one or more of the witnesses had been threatened, had his tires slashed, and had been offered a bribe and a change of jobs if certain testimony was changed. In other words, harassment of witnesses as well as the possibility of a 'fishing expedition' are factors which a trial court may take into consideration in the granting or denial of a motion for discovery such as we have here. As stated previously, it is not an absolute and unconditional right. Both parties are entitled to the protection of the court in order that the evidence may be presented without coercion or threats.

'It is, of course, true that we are searching for the truth in any criminal case. However, there are balancing factors which must be taken into consideration in the operation of such a rule.' Noel v. State (1966), 247 Ind. 426, 431, 215 N.E.2d 539, 543.

We find the trial court did not err in denying the motions to take depositions of state's witnesses under the circumstances presented to the court in this case. The court had the right to consider the harassment and threats to which...