Kleinrichert v. State, 3-572A2

• Decision Date: 09 February 1973
• Docket Number: No. 3-572A2,3-572A2
• Citation: 292 N.E.2d 277
• Parties: Jerome KLEINRICHERT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 277

292 N.E.2d 277

Jerome KLEINRICHERT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3-572A2.

Court of Appeals of Indiana, Third District.

Feb. 9, 1973.

Rehearing Denied March 14, 1973.

Robert S. McCain, Fort Wayne, for appellant.

Theodore L. Sendak, Atty.Gen., David H. Kreider, Deputy Atty.Gen., for appellee.

STATON, Judge.

STATEMENT ON THE APPEAL: Jerome Kleinrichert had been indicted for pandering. ¹ He was tried by court, found guilty and sentenced to the Indiana State Prison for a period of not less than one nor more than ten years and fined $1,000.00. This sentence was later reduced to three years on probation. Jerome Kleinrichert's Motion to Correct Errors presents four questions to be considered on appeal:

1. Did the trial court commit reversible error when it granted the State's oral and unverified motion for continuance on the day that the cause was set for trial?

2. Did the trial court commit reversible error when it failed to grant the Defendant's repeated request for the complete and unedited minutes of the grand jury?

3. Was there sufficient evidence to sustain the trial court's finding of guilty?

4. Did the trial court consider the indictment as evidence of guilt?

We find no errors after examining the above questions and affirm the trial court's judgment in our opinion which follows:

STATEMENT OF FACTS: It was Halloween. It was about 5:00 o'clock P.M. when the bus pulled into the station at Fort Wayne, Indiana and Inez Bonner arrived to meet Jerome Kleinrichert. He had promised to fix her up so that she could turn some tricks. Inez Bonner was a prostitute. After failing to locate Jerome Kleinrichert at the bus station, she took a cab over to the Travelodge and registered. Around 7:30 or 8:00 o'clock P.M. that evening she met Jerome Kleinrichert at the Cat's Meow, a local night club managed by Jerome Kleinrichert. Their arrangement was that she would turn over all the money that she received from her acts of prostitution to him, and he would provide her with a car, apartment and other incidentals. She was introduced to five men that evening who were taken to her room at the Travelodge. By the early hours of the following morning, November 1, 1969, she had collected One Hundred and Twenty-Five Dollars ($125.00) which she turned over to Jerome Kleinrichert.

The Allen County Grand Jury returned an indictment for pandering against Jerome Kleinrichert on March 3, 1970. He waived arraignment and pleaded not guilty. His trial was set for December 9, 1970, but the prosecuting attorney made an oral motion STATEMENT ON THE ISSUES: The four issues raised by Jerome Kleinrichert's Motion to Correct Errors are expressed as follows:

for a continuance. The State's principal witness against Jerome Kleinrichert had failed to appear. On March 30, 1970, Inez Bonner did appear for the State and Jerome Kleinrichert was found guilty of pandering by the trial court. He filed his motion to correct errors which raised the issues set forth below.

1. "THE TRIAL COURT HAD ABSOLUTELY NO AUTHORITY OR DISCRETION TO GRANT THE STATE OF INDIANA A CONTINUANCE ON THE DAY THE CAUSE WAS SET FOR TRIAL: FURTHER, THAT GRANTING THE STATE'S ORAL, UNVERIFIED MOTION WAS ABSOLUTELY REVERSIBLE ERROR.

2. "THE TRIAL COURT ERRED IN REFUSING APPELLANT DEFENDANT'S REPEATED REQUESTS FOR PRODUCTION OF A COMPLETE AND TRUE COPY OF THE MINUTES OF THE ALLEN COUNTY GRAND JURY, INSTEAD OF THE CUT AND CENSORED VERSION FURNISHED BY THE PROSECUTING ATTORNEY. APPELLANT-DEFENDANT WAS ENTITLED TO THE COMPLETE MINUTES FOR THE PURPOSES OF DISCOVERY, TO TEST THE CREDIBILITY OF THE STATE'S SOLE WITNESS AND TO OBTAIN EVIDENCE WHICH MIGHT BE FAVORABLE AND EXCULPATORY TO APPELLANT-DEFENDANT.

3. "THE DECISION OF THE TRIAL COURT IS NOT SUSTAINED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO LAW. SOME OF THE RULINGS CONCERNING TESTIMONY OF WITNESSES WERE HIGHLY PREJUDICIAL AND CONSTITUTE, AS A WHOLE REVERSIBLE ERROR.

4. "THE TRIAL COURT CANNOT CONSIDER THE FACT THAT A CITIZEN WAS INDICTED IN DETERMINING HIS INNOCENCE OR GUILT."

STATEMENT ON THE LAW

ISSUE ONE: Jerome Kleinrichert's first contention of error is that:

"THE TRIAL COURT HAD ABSOLUTELY NO AUTHORITY OR DISCRETION TO GRANT THE STATE OF INDIANA A CONTINUANCE ON THE DAY THE CAUSE WAS SET FOR TRIAL: FURTHER, THAT GRANTING THE STATE'S ORAL, UNVERIFIED MOTION WAS ABSOLUTELY REVERSIBLE ERROR."

The unequivocal expression of error quoted above from Jerome Kleinrichert's Brief relies upon the interpretation of two statutes and the application of Criminal Rule 4(D). We will first discuss the interpretation of the statutes and then the application of the rule.

Inez Bonner had received a subpoena ad testificandum as a State's witness. She was the State's sole witness against Jerome Kleinrichert. A letter sent to her prior to trial had apparently been returned unopened to the prosecutor's office. On the day of the trial, December 9, 1970, she failed to appear. The prosecuting attorney moved orally for a continuance which was granted by the trial court. Jerome Kleinrichert contends that the statutes require the prosecutor to file an affidavit stating whether certain conditions exist. He further contends that no oral motion can be made or considered by the trial court. He urges that the statutory requirement for a written affidavit is mandatory. His argument strongly suggests that all the vestiges of discretion which might otherwise be exercised by the trial judge in the absence of such a written affidavit by the prosecutor is non-existent. The statutes under consideration are: I.C. 1971, 35-1-26-1; Ind.Stat.Ann. § 9-1401 (Burns 1956) and I.C.1971, 35-1-26-2; Ind.Stat.Ann. § 9-1402 (Burns 1956) which read as follows:

"9-1401. Motion and affidavit of accused.--A motion by the defendant to postpone the trial on account of the absence of evidence can be made only on affidavit showing materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if the postponement be asked on account of an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring his testimony within a reasonable time. The affidavit must further show that the absence of such witness has not been procured by the act or connivance of the defendant, nor by others at his request, nor with his knowledge and consent, and what facts he believes the witness will testify to, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured. If, thereupon, the prosecuting attorney will admit that the witness, if present, will testify to the facts which the defendant in his affidavit for continuance alleges that he can prove by the absent witness, or if the evidence be written or documentary, that such documentary evidence exists, the trial shall not be postponed for that cause. The defendant shall file such affidavit for continuance at least five days before the date set for trial or shall sustain the burden of establishing to the satisfaction of the court, that the defendant is not at fault for failing to file such affidavit for continuance at an earlier date. If the motion for continuance is based upon the illness of the defendant or of a witness, the motion shall be accompanied by the oral testimony, in open court, or by the written statement of a physician or hospital official having the care or custody of such defendant or witness, presenting the nature of the illness and the probable duration of his incapacity to attend trial. Such written statement of the physician or hospital official shall be sworn to by such physician or hospital official before a notary public or other officer authorized to administer an oath. The court may appoint a physician who shall examine the defendant or the witness, and shall report to the court on the nature of the defendant's illness and the probable duration of his incapacity to attend trial. Compensation for such physician shall be provided by order of the court."

"9-1402. Application by prosecuting attorney--Discharge for delay in trial--Defendant in jail.--Whenever the prosecuting attorney desires to obtain a postponement of the trial of a criminal cause on account of the absence of any witness whose name is indorsed on the indictment or affidavit, such continuance shall be granted on his official statement in manner and form as specified in the preceding section; but the defendant may require the same to be in writing. If the defendant will admit that the witness will testify to the facts which the prosecutor states he expects to prove, or, if the evidence be documentary, that such documentary evidence exists, the trial shall not be postponed for that cause. And no defendant shall be detained in jail, without a trial, on an indictment or affidavit, for a continuous period embracing more than two terms after his arrest and commitment thereon; or if he was in jail at the time the indictment was found or affidavit filed, more than two terms after the term at which the indictment was found or the affidavit first filed; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such terms: Provided, however, That the prosecuting attorney shall make such statement for continuance at least five days before the date set for trial, or shall sustain the burden of establishing to the satisfaction of the court that he is not at faul for failing to file such affidavit at an earlier date." (Our emphasis)

The above statute clearly contemplates that the prosecutor's "... official statement ..." may be oral; however, the "... defendant may require the same to be in writing...." Criminal Rule 4(A) now provides that if the prosecutor does not make such statement ".. not later than ten days...