Lahrman v. State

• Decision Date: 17 July 1984
• Docket Number: No. 4-883A275,4-883A275
• Citation: 465 N.E.2d 1162
• Parties: Donald LAHRMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1162

465 N.E.2d 1162

Donald LAHRMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-883A275.

Court of Appeals of Indiana Fourth District.

July 17, 1984.

Rehearing Denied Aug. 24, 1984.

Frederic L. Romero, Romero & Thonert, Auburn, for appellant.

Linley E. Pearson, Atty. Gen., L.E. Wheat, Deputy Atty. Gen., Indianapolis, Craig T. Benson, Pros. Atty., 85th Ind. Judicial Circuit, Angola, for appellee.

CONOVER, Presiding Judge.

Defendant-appellant Donald Lahrman (Lahrman) appeals his jury conviction of Arson, a Class B felony. IND.CODE 35-43-1-1(a).

We affirm.

ISSUES

The issues, restated and reordered, are as follows:

1. Whether Lahrman is entitled to a new trial because officials from fire and law enforcement agencies destroyed exculpatory evidence after the fire.

2. Whether the prosecutor was guilty of misconduct by offering an amended fire report not previously made known to Lahrman's attorney.

3. Whether it was error to permit the State to amend the information the first day of trial.

4. Whether the trial court erred in limiting the voir dire of prospective jurors.

5. Whether the trial court erred in directing a verdict for Lahrman on Class A felony arson, but permitting the trial to proceed on the lesser included offense of Class B felony arson.

6. Whether the trial court erred by allowing an investigative officer to remain in the courtroom after separation of witnesses was ordered.

7. Whether comments by the trial judge during the proceedings were prejudicial to the defendant.

8. Whether the evidence is sufficient to sustain the verdict.

FACTS

Lahrman owned North State Sales, a business located near Angola. He sold mobile homes, travel trailers, trailer supplies, paint, L.P. gas and other supplies for trailers. During a considerable period of time prior to January 5, 1982, Lahrman and visitors to the business noted the furnace was "booming" when it ignited. The furnace occasionally would ignite with such force it knocked pictures off the wall. On January 4, 1982, a repairman serviced many of the internal working parts in the furnace. He determined the furnace was working properly prior to leaving.

The morning of January 5, Lahrman and at least one other person detected a strong smell of propane gas in the building. Lahrman aired out the building prior to noon. At about 12:15 P.M., Lahrman left with three others for a business lunch. After leaving, he said he needed to go back into the building to make sure the rear door was locked. Lahrman was in the building for perhaps 3 minutes. The four then proceeded to lunch.

At 12:25 P.M. an explosion damaged the building, scattering debris in front of it and onto an adjoining highway. The resulting fire required more than an hour to extinguish. Lahrman returned to the property after being informed of the fire, but was taken to a hospital after he appeared to be having heart problems.

Under supervision of State Fire Marshall's employees, debris was removed from the building and the floor washed down the day after the fire. The building was secured for several days as an investigation was made.

Employees of a company experienced in arson investigations examined the furnace and the building. They determined the fire had not been caused by an explosion of propane gas ignited by the furnace. Barker Davie (Davie), an expert witness for the State, determined the explosion and fire had been caused by gasoline vapors from approximately 2 quarts of gasoline spread over the floor of the showroom.

At trial, the trial judge limited each side to 30 minutes for voir dire of prospective jurors over Lahrman's objection. The trial court also permitted the State to amend its information to allege Lahrman caused an explosion on the premises, rather than he caused an explosion of L.P. gas. In addition, the trial court allowed the State to introduce an amended version of the original fire department report, showing two firemen had been slightly burned while fighting the fire. Lahrman had not seen the amended report prior to trial. The trial court also allowed an investigative officer to assist the prosecutor during the entire trial, but did not require that officer to testify first even though the court had ordered separation of witnesses. Other relevant facts are included below.

DISCUSSION AND DECISION

I. Investigative Procedures

Lahrman argues the conviction must be reversed because exculpatory evidence was lost when North State's floor was cleared of debris and washed down the day after the explosion and fire. He also suggests Davie's testimony is not credible because it was not based on any study of materials in the removed rubble.

The State cites us to Rowan v. State, (1982) Ind., 431 N.E.2d 805, where the court rejected a similar contention:

It is clear that the negligent destruction or withholding of material evidence by the police or the prosecution may present grounds for reversal. A suppression by the prosecution of evidence favorable to an accused violates due process when the evidence is material either to guilt or punishment.

In the instant case, defendant is not able to point to any specific evidence which actually was destroyed or lost. He is not able to establish that any other relevant evidence exists. His speculations about what might have existed do not offset the deference which must be given to the expertise of police officers in conducting an investigation. Defendant has not shown how he was prejudiced by the manner of the police investigation. (Citations omitted.)

Id., 431 N.E.2d at 819-20. These principles also are applicable in this case. Lahrman presents nothing which demonstrates a significant possibility exculpatory evidence existed and was lost. On the contrary, Davie testified he believed the samples he studied were not affected by the clean-up operations. No error is demonstrated.

II. Prosecutorial Misconduct

Lahrman contends he was prejudiced when the prosecutor failed to disclose an amended fire department report during pre-trial discovery then offered the report as evidence at trial. The amended report contained statements of injuries to two firemen not included in the original report. Thus, the prosecution used the amended report as an evidentiary harpoon, such act constituting prosecutorial misconduct, Lahrman opines.

We review allegations of prosecutorial misconduct through a four-part test stated by our supreme court in Maldonado v. State, (1976) 265 Ind. 492, 498-99, 355 N.E.2d 843, 848, in the following language:

1. did the prosecutor engage in misconduct;

2. if so, was the defendant thereby placed in a position of grave peril to which he should not have been subjected;

3. whether grave peril exists is determined by the probable persuasive effect of the misconduct on the jury's decision, not by the degree of impropriety of the conduct;

4. although an isolated incident of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to prejudice the defendant, a reversal may still result.

See also, Gaines v. State, (1983) Ind.App., 456 N.E.2d 1058, 1062.

Assuming arguendo the prosecutor committed misconduct by failing to advise Lahrman of the amended report prior to trial, Lahrman was not thereby placed in a position of grave peril. The information specifically alleged two firemen were injured while fighting the fire, and Lahrman had deposed both prior to trial.

In similar circumstances our supreme court stated:

Appellant claims that a memorandum containing the substance of Reeves' testimony was subject to a defense discovery order and was intentionally concealed. The court erred in failing to strike Reeves' testimony, appellant contends.

This contention has no merit. While it is clear that the State is not permitted to conceal evidence and then surprise the defense with it at trial, no surprise can be claimed here since Reeves' name was on the State's list of witnesses and the defense deposed him to trial. (Citations omitted.)

Suggs v. State, (1981) Ind., 428 N.E.2d 226, 228. Further, the trial court entered judgment for Lahrman on the charge of Class A felony arson, the only charge involving injury. Applying the second and third prongs of the Maldonado test, there was no prosecutorial misconduct meriting reversal.

III. Amendment of the Information

Lahrman argues his substantial rights were prejudiced when the trial court the first day of trial allowed the State to amend the information and then gave Lahrman only an overnight continuance. The information in pertinent part originally charged Lahrman with "[c]reating circumstances which lead to an explosion of L.P. gas contained in the premises[.]" The amended information in pertinent part charged Lahrman with "[c]reating circumstances which lead to an explosion[.]"

Lahrman vigorously contends he was not able to prepare an adequate defense after the amendment because it went to a material aspect of the charge rather than a defect in form. Lahrman emphasizes the Information was not amended 30 days or more before the omnibus hearing, as required for substantive changes by IC 35-34-1-5(d). The State responds the reference to L.P. gas was surplusage, thus the amendment did not effect the substance of the charge, citing Pounds v. State, (1983) Ind., 443 N.E.2d 1193, and Owens v. State, (1975) 263 Ind. 487, 333 N.E.2d 745.

In Pounds the court found no error when the State was permitted after its case-in-chief to amend the charging instrument to allege use of a handgun rather than a knife. In Owens the court rejected a claim error occurred when the State was permitted the first day of trial to amend the charge to allege shooting of a revolver and bullets instead of shooting a shotgun and pellets.

This area is necessarily fact sensitive, however. Here, the State initially alleged Lahrman caused the explosion and fire by the specific means of L.P. gas in a business filled with many...