Owen v. State

• Decision Date: 16 July 1980
• Docket Number: No. 3-679A159,3-679A159
• Parties: Diamond OWEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1249

406 N.E.2d 1249

Diamond OWEN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-679A159.

Court of Appeals of Indiana, Third District.

July 16, 1980.

Ronald V. Aungst, Valparaiso, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Jeff G. Fihn, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

Appellant Owen was tried by jury and was convicted upon two counts of conspiracy to deliver a controlled substance (phencyclidine) and one count of dealing in a controlled substance (heroin).

His appeal presents two issues: Was it error to summarily deny his motion to depose a police informant? Was the verdict contrary to law and the evidence in failing to determine that he was insane when the offenses were committed? A third issue challenging the denial of a pretrial motion for discharge has been waived since no argument concerning it was presented in the argument portion of appellant's brief. Indiana Rules of Procedure, Appellate Rule 8.3(A)(7).

We find the evidence was sufficient to support the verdict, but that the court erred in denying the discovery. Accordingly, we remand with instructions. For this reason we consider the insanity issue first.

At the outset we feel constrained to observe that counsel's argument may hardly be said to comply with the mandate of AR 8.3(A)(7) which requires citation to the parts of the record relied upon and "a clear showing of how the issues and contentions in support thereof relate to the particular facts of the case." Owen's argument merely asserts generalizations and conclusions about the evidence without citation to the transcript. We have, nevertheless, examined the merits of the argument. We find them unpersuasive.

Two points concerning appellate review of Owen's allegation are well settled. We will consider only whether the evidence favorable to the verdict was sufficient to support it. In making its determination of sanity, the jury may look to all the evidence bearing on the issue, including the opinions of lay witnesses and the facts and circumstances surrounding the offense. It is not bound by expert testimony on the subject. See, e. g., Morris v. State (1979), Ind., 384 N.E.2d 1022.

Here the evidence was adequate. Owen's activities were described and Officer Rogers, who observed Owen at the relevant times, gave his opinion of Owen's sanity. In addition, the state produced Owen's cellmate from jail who detailed conversations wherein Owen indicated he was feigning insanity as a defense. Considering all the facts and circumstances, the jury could properly have concluded that Owen was not insane.

We turn then to the question of pretrial discovery. A month before the scheduled trial date Owen filed his motion alleging that one Sheila Steele was a material witness and that he was unable to locate her but believed her whereabouts were known to the state. The motion sought discovery of where she was and a direction that Owen be permitted to take her deposition. The court summarily denied the motion without hearing that same day.

Owen asserts that this was an abuse of discretion and denied him the possibility of developing a defense of entrapment.

It appears from the evidence adduced at trial that Owen was apprehended as the result of undercover police activities by the Porter County Sheriff's Police designed to reveal violations of the law concerning controlled substances. Moreover, it appears that Sheila Steele was acting as a confidential informant to various law enforcement agencies and did originally introduce Officer Rogers to Owen at her home.

The state responds by contending that Owen has failed to establish an abuse of discretion. We disagree.

In Amaro v. State (1968), 251 Ind. 88, 239 N.E.2d 394 our Supreme Court established that while discovery in criminal cases is discretionary, the discretion is limited and discovery may be denied only where a paramount interest of the state is shown. See also Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536 (list of witnesses).

Moreover, as explained in Murphy v. State (1976), 265 Ind. 116, 352 N.E.2d 479, where we are considering discovery germane to the preparation and presentation of an accused's defense, we cannot presume that no exculpatory or mitigating evidence would have surfaced or that the trial would have followed the same...