Kleinrichert v. State, 673S128

• Decision Date: 27 June 1973
• Docket Number: No. 673S128,673S128
• Parties: Jerome KLEINRICHERT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 822

297 N.E.2d 822

260 Ind. 537

Jerome KLEINRICHERT, Appellant, v. STATE of Indiana, Appellee.

No. 673S128.

Supreme Court of Indiana.

June 27, 1973.

Robert S. McCain, Fort Wayne, for appellant.

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

OPINION ON PETITION TO TRANSFER

HUNTER, Justice.

This is a criminal petition to transfer to this Court filed pursuant to Appellate Rule 11(B), Rules of Appellate Procedure. Jerome Kleinrichert was indicted for pandering by the Allen County Grand Jury on March 3, 1970. He was convicted and sentenced to the Indiana State Prison for a period of not less than one (1) nor more than ten (10) years and fined One Thousand Dollars ($1,000.00). The conviction was affirmed by the Court of Appeals for the Third District on February 9, 1973. Kleinrichert v. State (1973), Ind.App., 292 N.E.2d 277. Petitioner specifies the following as error:

(1) The trial court erred in granting the prosecuting attorney's oral motion for a continuance on the day the cause was set for trial.

(2) The trial court erred in denying petitioner's motion to produce evidence.

(3) There was insufficient evidence at trial to sustain his conviction.

(4) The trial court weighed the indictment as evidence of petitioner's guilt.

(5) Petitioner received an illegal sentence.

The State's sole witness against petitioner was a prostitute who failed to appear at trial on December 9, 1970. When the subpoenaed witness did not appear, the prosecuting attorney orally moved for a continuance. The trial court granted the motion. Petitioner contends that the trial court was without authority to grant the oral motion for a continuance. The relevant statutes at issue here are: IC 1971, 35--1--26--1, Ind.Stat.Ann. § 9--1401 (Burns, 1956); IC 1971, 35--1--26--2, Ind.Stat.Ann. § 9--1402 (Burns, 1956) which read in applicable part 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 there 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 . . ..'

'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. . . .' (Emphasis added.)

Petitioner urges that the above statutes mandate that the prosecutor's official statement be in writing. The Court of Appeals took the position that the statutes recognize that the prosecutor's motion may be oral. With this position we agree. The plain language of § 9--1402 authorizes such oral motion, '. . . but the defendant may require the same to be in writing.' The record of this case discloses no such request made by defendant-petitioner. At the time the motion for continuance was made, the court had before it a subpoena which had been personally served upon the prosecuting witness. The prosecutor stated that he had learned only the day before that a letter sent to the witness had been returned. He stated that Inez Bonner was the sole witness for the State and that she would testify to all essential elements of the crime charged; that without her testimony the State would be forced to dismiss the case. These facts are sufficient to satisfy the statutory requirements of § 9--1401 and § 9--1402.

Petitioner further contends that the decision of the trial court to grant the oral motion for continuance is in direct conflict with Art. 1, § 12 of the Constitution of the State of Indiana and Criminal Rule 4(D), Criminal Rules of Procedure. The constitutional guarantee of the right to a speedy trial is procedurally implemented by Criminal Rule 4(D) which provides:

'(D) Discharge for delay in trial--When may be refused--Extensions of time. If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.'

The original trial date set for this cause was December 9, 1970. Upon granting the motion for continuance, March 5, 1971, was the new date set for trial. The second trial date was within the ninety days provided for by Criminal Rule 4(D). We, therefore, find no error upon this issue.

Petitioner alleges error in that the trial court refused his requests for production of certain index cards in the possession of the prosecuting attorney. The prosecuting witness kept a card file containing the names, birthdays, fractions of one hundred dollars paid and the dates of visitation of her male customers. Three of these cards were entered into evidence at trial. Petitioner filed a broad motion to discover 'all records held by the State of Indiana, which reflect names and dates of acts of prostitution committed by the State's material witness Inez Bonner, which said records may also reflect amounts of money received for said acts of prostitution.' Petitioner's motion alleges that Jerome Kleinrichert '. . . has a special need for production of the prostitution records . . .' However, petitioner demonstrated no 'special need' for the production of the evidence. He did not lay any foundation to discover the evidence for impeachment purposes. The State resisted the petitioner's motion on the grounds that the bulk of the card file contained information unrelated to the prosecuting witness's direct testimony. The motion for the production of the evidence was properly denied by the trial court. However, the Court of Appeals, in treating this issue states:

'If Jerome Kleinrichert was not satisfied with (the cards he received at trial), he should have requested a hearing. Having failed to request a formal hearing, he has waived any error which may have resulted from the trial court's ruling on his motion.' 292 N.E.2d at 284. (Emphasis added.)

The Court of Appeals cites Yeary v. State (1971), Ind., 273 N.E.2d 96, for the above proposition. The facts of Yeary were materially different from the instant case. In Yeary, the appellant-defendant sought to discover a statement that the prosecuting witness had made to police, concerning an alleged rape. The court ordered the prosecution to produce the statement. The prosecution did not produce, alleging that the statement was not in its possession. This Court in Yeary stated:

'The appellant did not request a hearing on the existence of the...