Murphy v. State

• Citation: 352 N.E.2d 479,265 Ind. 116
• Decision Date: 10 August 1976
• Docket Number: No. 975S245,975S245
• Parties: Walter MURPHY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 479

352 N.E.2d 479

265 Ind. 116

Walter MURPHY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 975S245.

Supreme Court of Indiana.

Aug. 10, 1976.

Rehearing Denied Sept. 30, 1976.

Geoffrey A. Rivers, Muncie, for appellant

Theodore L. Sendak, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of robbery while armed ¹ and sentenced to imprisonment for a determinate period of thirteen (13) years. His motion to correct errors raised twenty-one issues, four of which have been expressly waived. By grouping of related issues, the remaining seventeen have been reduced to eleven distinct questions, two of which must be resolved in the defendant's favor and require that a new trial be ordered. One has been rendered moot, and we regard two others as unlikely to resurface upon the re-trial, leaving the following eight issues to be treated herein.

ISSUES

(1) Correctness of the trial court's denial of the defendant's motion to depose certain of the State's listed witnesses.

(2) Correctness of the court's action in giving an instruction relating to drug influence as a defense.

(3) Correctness of the trial court's ruling denying the defendant's motion for examination by a psychiatrist of his choice.

(4) Correctness of the trial court's denial of the defendant's petition for treatment as a drug abuser.

(5) Defendant's entitlement to a bifurcated trial.

(6) Did the trial court err in denying the defendant's motion to discover his statements made to the police at the time of his arrest?

(7) Sufficiency of the evidence upon the issue of the defendant's sanity.

(8) Constitutionality of the sentencing provisions of the statute under which the conviction was obtained.

ISSUE I

The defendant was arraigned on February 11, 1975, and trial was set for April 7, 1975. On March 21, 1975, leave for previously appointed pauper counsel to withdraw was granted and substitute pauper counsel appeared on March 26, 1975, and moved for a continuance of the trial date. Accordingly the trial was reset for April 28, 1975. On April 7, 1975, counsel filed a motion for an order authorizing the taking of depositions, at public expense, of certain of the State's listed witnesses. On April 22, 1975, the motion for depositions had not yet been ruled upon, and counsel moved for a further continuance of the trial date, whereupon the motion for the depositions was overruled, other pending motions were ruled upon, and the motion for a continuance was overruled.

Although arguments of counsel were heard upon the motion for depositions, the record does not reflect the State's objections or the court's reason for denial. Absent a showing that the defendant had no legitimate defense interest in support of his petition or that the State Ind. Code § 35--1--31--8 (Burns 1975) has been superceded by the Rules of Trial Procedure and recent decisions of this Court. Trial Rules 30 and 31 provide for the taking of depositions in civil cases, and these rules apply to criminal cases through Ind.R.Crim.P. 21. In Carroll v. State, (1975) Ind., 338 N.E.2d 264, we applied Ind.R.Tr.P. 32 relating to the use of depositions to a criminal case. The 'balancing' doctrine of State ex rel. Keller v. Criminal Court of Marion County, (1974) 262 Ind. 420, 317 N.E.2d 433, displaces the remainder of the statute. Thus, the trial rules, in conjunction with Carroll and Keller, are the basic law governing the taking of depositions in criminal cases.

had a paramount interest to protect, criminal defendants have a right under our statute and rules of procedure to discovery, including the taking of depositions from those persons listed as State's witnesses. Johnson v. State, (1971) 255 Ind. 589, 266 N.E.2d 57; Howard v. State, (1969) 251 Ind. 584, 244 N.E.2d 127; Amaro v. State, (1968) 251 Ind. 88, 239 N.E.2d 394; Nuckles v. State, (1968) 250 Ind. 399, 236 N.E.2d 818. See also Antrobus v. State, (1970) 253 Ind. 420, 254 N.E.2d 873; Bernard v. State, (1967) 248 Ind. 688, 230 N.E.2d 536.

In this case, there was no showing that the defendant's purpose was not bona fide or that there was any paramount interest of the State in non-disclosure. There was no showing of undue burden or expense and no move for any protective order. The petition appears to have been timely filed, under the circumstances of the case, and the record discloses no findings by the trial judge to warrant a denial.

The depositions could have been taken without having first obtained a court order, by written notice to the prosecutor. However, inasmuch as the defendant here was an indigent and the cost of such action would ultimately have had to have been paid from public funds, subject to the approval of the court, it was altogether appropriate for counsel to seek prior approval.

On appeal, the State contends that there was no legitimate reason for the defendant's motion and further that any error in the judge's ruling was harmless. The State does not show any basis for its claim, and although we recognize the distinct possibility that the requested discovery would have been unwarranted, there was nothing before the trial court to support that conclusion. The decision, therefore, was speculative and arbitrary. In essence, the State argues that because sufficient evidence to convict the defendant may be found in the testimony of witnesses whom the defendant did not seek to depose and that because there was eyewitness testimony, the defendant did not need depositions and was not harmed by the denial of his petition.

The harmless error doctrine is inapposite to this issue. As was said in Antrobus v. State, supra, relative to the right of a defendant to retrieve his own statement, previously given to the police:

'Neither does our rule require a defendant to show prior to his even seeing the statement that it would prove the innocence of the defendant. We do not see how a defendant could ever satisfy that requirement but in any case it is irrelevant because the issue here is under what conditions may a defendant inspect the statement to determine its possible use in cross examining and impeaching the credibility of the witness. Obviously it may have such a use without directly proving the innocence of the defendant.' 253 Ind. at 430, 254 N.E.2d at 878.

It is of no significance that there was eyewitness testimony. Amaro v. State, supra. Nor does it matter that the defendant's task of rebutting the State's evidence seems insurmountable. Frazier v. State, (1975) Ind., 335 N.E.2d 623. We simply cannot say that the inability to depose the

seven witnesses was harmless. The fact that there may have been other evidence sufficient to sustain the conviction in no way meets this problem. We cannot presume, as a matter of law, that no exculpatory or mitigating evidence would have surfaced from the depositions sought. Even if it were determined retrospectively that nothing in aid of his defense was discoverable, we could not discount the effect of a denial. Effective counseling is dependent upon knowledge of the facts, and it is essential that weaknesses as well as strengths be discovered and intelligently assessed.

ISSUE II

The defendant had entered pleas of not guilty and not guilty by reason of insanity. The insanity plea was based upon his claim that he was a heroin addict suffering withdrawal reaction. The withdrawal pains were said to render him unable to conform his behavior to the requirements of the law. The evidence of his addiction was uncontroverted, as was the fact that he had sought help for six days prior to the robbery from the community addiction services agency. The evidence is somewhat less clear regarding his claim of withdrawal reaction.

The following instruction was given over the defendant's objection that it was an incorrect statement of the law and that it was not applicable to the evidence in the case.

'It is not a defense that an accussed (sic) is under the influence of drugs at the time of an offense. A person who through the voluntary use of drugs not taken as medicine has the same responsibility as that of a person voluntarily intoxicated by drugs or liquior (sic). That is voluntary intoxication by drugs or liquior (sic) of the accussed (sic) does not mitigate the offense.'

The State cited two cases in support of this instruction: Davis v. State, (1968) 249 Ind. 373, 232 N.E.2d 867; and Sharp v. State, (1903) 161 Ind. 288, 68 N.E. 286. Neither of these cases states the rule in the absolute terms offered here.

In Snipes v. State, (1974) 261 Ind. 581, 307 N.E.2d 470, this Court was faced with a petition for transfer in which the trial court and the Court of Appeals approved an instruction similar to the one given in this case. We granted transfer and reversed, noting that the correct rule is as follows:

'Normally voluntary intoxication is not a defense in a criminal proceeding. In order for intoxication to relieve appellant from responsibility the crime charged must have involved specific intent and he must have been so intoxicated as to be incapable of entertaining the required specific intent.'

Snipes, supra, 261 Ind. at 583, 307 N.E.2d at 471, citing Elmer v. State, (1972) 259 Ind. 241, 286 N.E.2d 408. See also Stout v. State, (1974) 262 Ind. 538, 319 N.E.2d 123; Preston v. State, (1972) 259 Ind. 353, 287 N.E.2d 347.

Moreover, this instruction, by analogizing the 'influence' of drugs to intoxication, is inapplicable to the facts of the case. The defendant did not argue that addiction to heroin incapacitated him to such an extent that he could not form a specific intent to commit the crime charged. This ability is assumed to be present. The argument was at all times that the withdrawal reaction affected the defendant in such a way that he could not curb his intent or impulse to commit the crime in order to obtain funds to support his addiction. The ...