Long v. State

• Decision Date: 02 March 1982
• Docket Number: No. 2-881A273,2-881A273
• Parties: Richard R. LONG, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 875

431 N.E.2d 875

Richard R. LONG, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-881A273.

Court of Appeals of Indiana, Second District.

March 2, 1982.

Charles H. Ireland, North Manchester, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Richard R. Long was found guilty by a jury of theft and sentenced to a term of four (4) years imprisonment. On appeal Long argues the State's failure to disclose a written and signed statement made by him shortly after his arrest in response to a discovery order request, and then used by the State for impeachment purposes, denied him due process and a fair trial and precluded him from making a knowing, intelligent, and voluntary waiver of his right against self-incrimination. We agree and remand for a new trial.

On March 14, 1980 Long filed a motion for discovery requesting in part, "(a) ny written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgement of such statements." Neither the State's response (filed March 25, 1980) nor the State's supplemental response (filed January 15, 1981) made mention of Long's statement given to Officer West on February 20, 1980. To the contrary, the State's response affirmed that all such statements had been provided. Defense counsel was not aware of the existence of the statement until Long's cross-examination by the State on the second day of trial.

The Prosecuting Attorney was apparently advised of the existence of the statement by Officer West on the day prior to the trial. However, the Prosecuting Attorney did not inform Long or his counsel of the existence of the statement at that time. Rather, he waited until after Long had testified on direct examination and then used a portion of the statement to lay the foundation for impeachment of his testimony. Counsel moved for a continuance and a mistrial, citing the failure of the State to comply with the discovery order. The trial court denied the motion for mistrial, but granted Long a continuance to examine Officer West. On rebuttal, the State called Officer West to testify as to certain statements contained within the written statement. Long, in an attempt to rehabilitate himself, offered the statement into evidence and attempted to explain it.

The State denies the existence of prosecutorial abuse of discovery. We find the State's position totally untenable. Long's written and signed statement was in existence at the time Long specifically requested the State to produce it. That request imposed the obligation upon the Prosecuting Attorney to make at least reasonable effort to determine the existence of any such statement and then to make it available to Long.

"2.2 Prosecutor's performance of obligations.

(c) The prosecuting attorney should ensure that a flow of information is maintained between the various investigative personnel and his office sufficient to place within his possession or control all material and information relevant to the accused and the offense charged." ABA Standards, Discovery and Procedure Before Trial § 2.2(c) (Approved Draft, 1970).

"2.4 Material held by other governmental personnel.

Upon defense counsel's request and designation of material or information which would be discoverable if in the possession or control of the prosecuting attorney and which is in the possession or control of other governmental personnel, the prosecuting attorney shall use diligent good faith efforts to cause such material to be made available to defense counsel; and if the prosecuting attorney's efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel." ABA Standards, Discovery and Procedure Before Trial § 2.4 (Approved Draft, 1970).

In other words, the State may not avoid discovery by deliberately or even negligently failing to inform itself as to its case.

In this case, we assume lack of preparation was the operative factor until the Prosecuting Attorney was advised of the statement's existence on the day before trial. However, from that moment until the defense was advised of the statement's existence on the second day of trial, during Long's cross-examination, we are forced to conclude the State's disobedience was deliberate.

As we said in Deatrick v. State, (1979) Ind.App., 392 N.E.2d 498, 501: "(t)he judicial process is similarly tainted when the prosecution ignores a specific request by the defense." The United States Supreme Court in United States v. Agurs, (1976) 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, in summarizing a specific request for information, declared, "(w)hen the prosecutor receives a specific request, the failure to make a response is seldom, if ever, excusable." 427 U.S. at 106, 96 S.Ct. at 2399.

Finding prosecutorial abuse, we review the adequacy of the remedy provided by the trial court's action. A recess was taken to give Long's counsel the opportunity to talk with Officer West after the existence of the statement was acknowledged. However, Long's motion to exclude the officer's testimony and to exclude the statement from evidence was denied.

As a general rule, the appropriate remedy for failure to comply with a discovery request is a continuance. However, the prejudicial circumstances surrounding the abuse occasionally negate the continuance as an effective remedy. In addition, there are times when the misconduct is so flagrant it simply cannot be tolerated and consequently as a policy matter the continuance cannot be deemed an adequate remedy because it fails to serve as an adequate deterrent to the conduct.

Such is the situation here. The conduct of the State simply cannot be tolerated. By its affirmative deception it concealed a statement to which Long was absolutely entitled, regardless of whether Long should have known of its existence.

Furthermore, and equally as important, the State's conduct denied Long effective assistance of counsel. As our supreme court cautioned in Thorne v. State, 429 N.E.2d 644, (1981) "a willful or deliberate violation of disclosure requirements may not only impair the lawyer's ability to prepare properly for trial but, may also, substantially impair his ability to counsel his client properly and thus be regarded as a violation of the accused's right to counsel." Slip opinion at 6. The analogy is especially appropriate here. Long and his counsel had to make an important decision: whether Long should waive his constitutionally protected right against self-incrimination and testify on his own behalf. It is self-evident that an essential fact which must receive consideration in making the decision is the opportunity for defendant's impeachment. At the time Long's attorney had to counsel Long on the decision of whether or not to waive his constitutional right, he was denied access to vital information by the State's affirmative conduct which substantially impaired his...