Kelley v. State, 1--1072A82

• Decision Date: 26 April 1973
• Docket Number: No. 1--1072A82,1--1072A82
• Parties: Frederick KELLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 372

295 N.E.2d 372

156 Ind.App. 134

Frederick KELLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1--1072A82.

Court of Appeals of Indiana, First District.

April 26, 1973.

William B. Ream, Bloomington, for appellant.

Theo. L. Sendak, Atty. Gen., Anthony J. Metz, III, Deputy Atty. Gen., for appellee.

LYBROOK, Judge.

Defendant-appellant (Kelley) was charged with the Sale of Dangerous Drugs. On June 21, 1971, he pleaded not guilty and requested a jury trial which was set for July 6, 1971.

On June 24, 1971, Kelley requested and was granted an order requiring the State to 'provide the defendant with a list of witnesses, now known to it, to be called by the State in this cause, . . .'

Kelley requested a psychiatric examination which was granted. After the doctor's reports were received, Kelley filed a petition to be committed to the custody of the Indiana Department of Mental Health. This was granted and he was confined in Madison State Hospital, from August 25, 1971, until November 24, 1971, when he was declared competent to stand trial. Trial was then reset for January 6, 1972 and again reset for March 1, 1972 after defendant moved for a continuance.

On March 1, 1972, just over eight months after the request, and on the morning of the first trial, the State provided defendant with the witness list.

The jury was empanelled and the State's first witness took the stand and was sworn. At this time Kelley objected to any testimony by the witness, on the grounds of surprise and because the State had not provided the witness list until the very morning of trial.

The trial judge concluded that while the State had not complied with the 'spirit' of the order, the objection would be overruled but defendant could either proceed to trial or request and be granted a continuance.

Defendant requested and was granted the continuance. Without further motion or objection, the court discharged the jury. The record shows that 'defendant's attorney stated, in response to inquiry by the Court, that defendant could not be prepared for continuation of the trial for a minimum of several days because he intended to depose at least two of the witnesses on the state's list of witnesses. Defendant's attorney later estimated he would need four (4) to six (6) weeks before resumption of trial.'

Trial was reset for April 24, 1972. On March 17, 1972, defendant filed a motion for dismissal and discharge on the grounds of double jeopardy. This was renewed by an identical motion on the trial date. Both were denied. Kelley was tried and convicted of the Sale of Dangerous Drugs.

This appeal results from the overruling of defendant's Motion to Correct Errors wherein he alleges: (1) 'That the trial court erred in overruling defendant's objection to testimony of the State's witness whose identity as a state witness was not made known to the defendant's counsel until March 1, 1972, the day of the trial.' (2) 'The court erred in placing the burden on the defendant to elect between continuing with the trial or asking for a continuance. This burden effectively denied the defendant of his right to a speedy trial and was a denial of his right to due process of law.' (3) 'That the trial court erred in refusing to grant defendant's motion for dismissal and discharge of the defendant after the trial on March 1, 1972, and the court's decision to try the cause again on April 25, 1972, resulted in the defendant being twice placed in jeopardy.'

Concerning defendant's first contention, the law is clear.

If the State fails to provide a list of witnesses, when ordered to do so by the court, the proper remedy is a continuance.

As the court held in Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60:

'There is no doubt that appellant, by failing to move for a continuance when the witnesses were called, failed to pursue his proper remedy.' (Emphasis added.)

See also, Spears v. State (1970), 253 Ind. 364, 254 N.E.2d 196; Dorsey v. State (1970), 254 Ind. 409, 260 N.E.2d 800; and Fair v. State (1969), 252 Ind. 494, 250 N.E.2d 744.

In the case at bar, defendant was granted a continuance. That being the proper remedy, no error was committed.

Kelley next maintains that he was saddled with an intolerable burden when the trial court offered him only the choice between a continuance or going ahead with trial and having to contend with the 'surprise' witnesses. He argues that this denied him his right to a speedy trial and to due process. His due process argument relies on Johns, supra, and a rather strained analogy to the alibi statute. Indiana cases on this point indicate that failure to produce a witness list is indeed a denial of due process. The proper remedy, however, is a continuance, which defendant, in the case at bar, received.

Kelley bases his argument that he was denied a speedy trial on the fact that he was...