Reynolds v. State, 3--672A8
| Decision Date | 14 February 1973 |
| Docket Number | No. 3--672A8,3--672A8 |
| Parties | Robin Lee REYNOLDS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Daniel A. Roby, Wyss, McCain, Mochamer, Roby, Ryan & Myers, Fort Wayne, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for plaintiff-appellee.
The primary issue presented by this appeal is whether a criminal defendant is entitled to depose a police officer who will testify as the chief witness for the prosecution.
Defendant-Robin Lee Reynolds was charged by affidavit with the possession of marijuana. The affidavit was orally amended to charge a misdemeanor. See: IC 1971, 16--6--8--10, Ind.Ann.Stat. § 35--3338 (Burns Cum.Supp.1972). Trial was to the court without the intervention of a jury. Defendant-Reynolds was found guilty and was ordered to pay the sum of $200, plus $38 as the costs of the action, and was ordered committed to the Allen County jail for 180 days of which 120 days were suspended. The timely motion to correct errors filed by Reynolds was overruled and this appeal followed.
The facts of the instant appeal most favorable to the finding of the trial court may be summarized from the evidence contained in the record before us as follows:
Robert Ross was a police officer for the City of Fort Wayne. Ross was sent by Jon W. Jones, a Sergeant in the narcotics section of the Vice Bureau of the Fort Wayne Police Department to the apartment of Reynolds 'to buy some marijuana to bring it back * * *.' Sergeant Jones testified that he had no prior knowledge of Reynolds' traffic in drugs.
On January 21, 1972, Ross went to the apartment of Reynolds. Ross told Reynolds that a friend of Reynolds in Ohio had given him Reynolds' name. Ross also told Reynolds that he wanted some marijuana because he was having sexual problems with his wife. Reynolds told Ross that he had no marijuana. Ross asked Reynolds if he would have some at a later date, and the two made an appointment for the following Tuesday when Ross was to come back with his wife.
On January 25, 1972, Ross returned to the apartment of Reynolds. His alleged wife was not with him. Ross told Reynolds that his wife 'didn't want to smoke with anyone else.' Ross again asked Reynolds to get some marijuana for him. Reynolds again had none, but left and was gone for about ten minutes. Reynolds returned with some marijuana in a plastic bag, and was thereupon arrested.
Prior to trial Reynolds filed his petition for leave of court to take the deposition of Robert Ross. The denial of said petition is the first error assigned and argued in this appeal.
The language of the petition in the case at bar is nearly identical to the petition which was denied by the trial court in Howard v. State (1969), 251 Ind. 584, 244 N.E.2d 127. In holding such denial to be reversible error, our Supreme Court relied on the holding of Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536, in making the following statement, at 586 of 251 Ind., at 128 of 244 N.E.2d:
In Amaro et al. v. State (1968), 251 Ind. 88, at 94, 239 N.E.2d 394, at 397, it is stated:
'The issue raised by the appellants is this: Does Burns' § 9--1610, supra, (Ind.Ann.Stat. (1956)) grant to criminal defendants the right to take depositions of potential witnesses without a showing that the witness will not be able to testify on trial, to be denied by the Trial Court only where a paramount interest of the State is shown? We think that within the confines of a limited discretion of the Trial Court to prevent 'fishing expeditions' or other abuses, the answer is yes.'
Of course, both Amaro and Howard recognize that discovery is subject to the limited discretion of the trial court where a paramount State interest is shown that such an order would unfairly hamper the prosecution or do a disservice to the public interest. Bernard v. State, supra. The possibility of harassment of witnesses or a 'fishing expedition' are factors to be considered in granting or denying a motion for discovery. Johnson v. State (1971), Ind., 266 N.E.2d 57, 59.
Here, there was no showing of a paramount State interest. There was not even a hint of a 'fishing expedition' nor harassment of witnesses. In preparing his case for trial, Reynolds sought to depose a police officer who was to be the chief witness for the prosecution. As in Howard v. State, supra, the trial court was presented with a reasonable...
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