Ottinger v. State

• Decision Date: 21 November 1977
• Docket Number: No. 1-177A12,1-177A12
• Citation: 370 N.E.2d 912
• Parties: Paul Elmer OTTINGER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 912

370 N.E.2d 912

Paul Elmer OTTINGER, Appellant, v. STATE of Indiana, Appellee.

No. 1-177A12.

Court of Appeals of Indiana, First District.

Nov. 21, 1977.

Peyton & Giddings, Lebanon, for appellant.

Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

MEMORANDUM DECISION

Defendant-appellant, Paul Elmer Ottinger, appeals his conviction of second degree burglary ¹ and presents the following issues for review:

(1) Whether the trial court erred in refusing to allow Ottinger to call two witnesses disclosed to the State on the day of trial.

(2) Whether the trial court erred in sustaining the State's objection to Ottinger's questioning a witness during the defense case who had testified during the State's case in chief.

(3) Whether the trial court erred in overruling a motion for mistrial during cross-examination of Ottinger.

Ottinger was discovered inside Shepherd's Drive-In Restaurant in Lebanon at 2:00 a. m., on January 24, 1976, when the owner checked the premises. A window had been broken at the northwest corner of the building. Candy, strawberries, ice cream, whipped cream, and canceled checks were scattered throughout the establishment. When the police arrived to take Ottinger into custody, they discovered chewing gum and fifteen candy bars, identical to merchandise offered for sale by Shepherd's Drive-In, in Ottinger's pockets. A jury found Ottinger guilty of second degree burglary.

I.

In its Interrogatories to defendant the State asked for the names and addresses of persons Ottinger intended to call as witnesses. Ottinger answered: "None."

After the State rested its case in chief, the deputy prosecutor and defense counsel addressed the court out of the presence of the jury. The ensuing exchange revealed that defense counsel intended to call two witnesses; the State objected because the State had not been told about the proposed witnesses before the morning of trial. The State emphasized that it did not seek a continuance but again objected to the two persons being called as witnesses. The trial court refused the testimony.

Ottinger argues that the trial court should have granted a continuance for the benefit of the State rather than rejecting the testimony of the two proposed witnesses. Ottinger claims that, by its ruling, the trial court abused its discretion, pressured him to take the stand on his own behalf, ² and deprived him of his right to present a defense.

Ottinger's argument rests upon the premise that the appearance of Donna Ottinger (appellant's wife) and Teresa Woerner in defense counsel's office on the morning of trial amounted to newly discovered evidence. This premise is fallacious.

The record reveals that Ottinger's proposed witnesses would have testified that Ottinger was under the influence of alcohol "among other things," at the time he entered Shepherd's Drive-In Restaurant. Ottinger was well aware that he had been drinking before he entered the restaurant, and he was also aware of at least some of the persons who could so testify. Ottinger's testimony reveals his recollection that:

(a) He started drinking beer about 10:00 a. m. on January 23, 1976, and continued until 5:00 p. m.;

(b) When people arrived for "a little party," he joined them in drinking more beer and in drinking a pint of whiskey;

(c) The group at the "little party" also smoked marijuana and took barbituates.

Ottinger obviously had knowledge of the evidence rejected by the trial court. He had in excess of eight months to relate the information to his attorney and to prepare a defense incorporating that evidence. Although he answered the State's Interrogatories on March 29, 1976, by stating that he intended to present no witnesses, he had more than six months to amend that answer. Instead, Ottinger made no effort to notify the State concerning his change in plans until the morning of trial.

In State v. Buza (1975), Ind.App., 324 N.E.2d 824, the State submitted a second amended witness list on the day before trial. The trial court granted defendant's motion to strike the second amended list and allowed the State to present testimony only of the witnesses listed before the second amendment. The State argued on appeal that a continuance is the exclusive remedy when an attempt is made to call a surprise witness. This court disagreed with the State's contention, and held that stronger remedies may be employed when the circumstances demand.

In the present case, it was Ottinger's witnesses, not the State's witnesses, who were barred from testifying. Ottinger contends that he was denied his constitutional right to present a defense.

In Washington v. State of Texas (1967), 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, the defendant was not allowed to present testimony of a witness because a state statute made inadmissible the testimony of persons charged as principals, accomplices, or accessories in the same crime. The United States Supreme Court first determined that the right of an accused to have compulsory process for obtaining witnesses is a fundamental right incorporated in the due process clause of the Fourteenth Amendment. The Supreme Court then defined the more specific issue:

"We are thus called upon to decide whether the Sixth Amendment guarantees a defendant the right under any circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court." (Emphasis added). 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019.

Having considered the guidelines provided by Washington v. State of Texas, supra, we must now determine whether Ottinger was denied his right to present defense witnesses because of arbitrary procedural rules.

Both the United States Supreme Court and our Indiana Supreme Court have approved liberal discovery in criminal proceedings. Wardius v. Oregon (1973), 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82; Williams v. Florida (1970), 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446; State ex rel. Keller v. Criminal Court of Marion County (1974), 262 Ind. 420, 317 N.E.2d 433. The trial court has discretion in imposing sanctions regarding discovery. State v. Buza, supra.

We emphasize that we do not deal with a situation involving evidence which became known for the first time on the morning of trial, as Ottinger argues. Instead, our conclusion emanates from analysis of the situation revealed by the record. We find that the sanction imposed by the trial court was within its power. The trial court's ruling gives meaning to the procedures and purposes of pretrial discovery; any limitations which resulted upon Ottinger's right to present a defense were the product of his answer to the interrogatory and his apparent election not to amend that answer at any time before the morning of trial. Ottinger cites no cases which suggest violations of the Sixth Amendment of the United States Constitution or of Article 1, § 13, of the Indiana Constitution, by the trial court's ruling. The trial court did not err when it refused to allow the testimony of Donna Ottinger and Teresa Woerner.

Ottinger intertwines two ancillary arguments within this issue. Interrogatories to the State, filed February 4, 1976, asked whether the State had received any evidence which might be exculpatory. The State responded on February 26, 1976: "None." In May of 1976, Donna Ottinger went to the prosecutor's office to discuss the possible dissolution of her marriage to Paul Ottinger, appellant herein. During the consultation, she stated that her husband was intoxicated when he entered Shepherd's Drive-In Restaurant.

Ottinger argues that the State had a duty to supplement its answer to the interrogatory and disclose Donna Ottinger's statement, and cites as authority, Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

Conviction of second degree burglary requires the State to prove a breaking and entering of a building or structure other than a dwelling house with intent to commit a felony therein. Cook v. State (1972), 258 Ind. 667, 284 N.E.2d 81. A defendant may be intoxicated to the extent that he lacks the mental ability to form specific intent. Stout v. State (1974), 262 Ind. 538, 319 N.E.2d 123. Therefore, if Ottinger were sufficiently intoxicated to have been unable to form specific intent when he entered Shepherd's Drive-In Restaurant, evidence of such intoxication would amount to exculpatory evidence.

Brady v. Maryland, supra, is not germane to the facts revealed by the record. The State has a duty to disclose to a defendant any evidence which tends to exculpate him. This duty exists independent of any specific discovery proceedings or court order. Monserrate v. State (1976), Ind., 352 N.E.2d 721. Donna Ottinger's consultation in the prosecutor's office disclosed no information unknown to Ottinger. Therefore, allegations that the State suppressed evidence are spurious.

Finally, Ottinger argues that his witnesses should have been allowed to testify since the State was already aware of the facts to which Donna Ottinger and Teresa Woerner would have testified. The trial court heard from both attorneys before making its ruling.

The trial court has discretion in conducting its proceedings. We find no evidence of abuse of that discretion. While Ottinger disagrees with the trial court's view of the facts, the following statement in his brief reveals agreement with the trial court's reasoning:

"Certainly, a motion to strike witnesses is an appropriate remedy where the movant was misled by the opposing party's action and where there is no justification for submitting a late witness list."

We state again that the trial court did not err when it refused to allow the testimony of Donna Ottinger and Teresa Woerner.

II.

Officer Edward Watson testified as a witness for the State and was cross-examined by defense counsel. After the trial court rejected the testimony of Donna Ottinger and Teresa Woerner, defense counsel called...