Richard v. State, 277S141

• Decision Date: 22 November 1978
• Docket Number: No. 277S141,277S141
• Citation: 269 Ind. 607,382 N.E.2d 899
• Parties: Hilton RICHARD, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 899

382 N.E.2d 899

269 Ind. 607

Hilton RICHARD, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 277S141.

Supreme Court of Indiana.

Nov. 22, 1978.

Harriette Bailey Conn, Public Defender, Kyle M. Payne, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., for appellee.

PIVARNIK, Justice.

Appellant Richard was convicted by a jury in the LaPorte Superior Court of the second-degree murder of David Turner in October, 1971. His conviction was affirmed by this court. Richard v. State, (1975) 262 Ind. 534, 319 N.E.2d 118. Appellant filed a petition for post-conviction relief pursuant to Ind.R.P.C. 1 in the LaPorte Superior Court on July 21, 1975. This petition was denied by the trial court, after a hearing, on June 10, 1976. The present appeal follows.

Three issues are asserted in the present appeal: (1) that one of appellant's trial attorneys acted as a pro-tem judge in this case before his appointment as counsel; (2) that the trial court excluded alibi testimony in appellant's original trial, and; (3) that appellant was denied due process of law because of alleged failures of the prosecutor to turn over certain evidence to the defense.

I.

Appellant first argues that one of his trial attorneys, Mr. Kitowski, improperly acted as a pro-tem judge in this case before his appointment to represent appellant. As pro-tem judge, Kitowski had accepted the grand jury's indictment of appellant. This fact, it is now asserted, denied appellant effective assistance of counsel.

The issue raised here is not even an issue presentable under our post-conviction rules. The fact that attorney Kitowski had signed some perfunctory orders as a pro-tem judge in this case was well known to everyone at trial, as it appeared on the very record of the cause. Co-counsel Sweeney testified at the post-conviction hearing that he and everyone else were very much aware of this, and considered it unimportant, as Kitowski acted only in a perfunctory manner. Further, if anything, this fact would have been of benefit to the appellant rather than a detriment to him in Sweeney's view, since Kitowski was known as an experienced criminal lawyer in the Michigan City area. This issue was not raised in appellant's original appeal to this court, although it was then known to all parties. Thus, we fail to see any sort of newly discovered evidence here, and on the merits see no prejudice to appellant or reversible error arising from these facts.

II.

It is next argued that the trial court, in the original trial, erroneously excluded the alibi testimony of one Donald Nelson. The court ruled that appellant had failed to file statutory notice of alibi when this witness was presented.

The fact that the court, Sua sponte, struck this alibi testimony was not questioned by the appellant in any manner at the time it was done, nor at the time the court instructed the jury on it at the close of the trial. No objection was made by the defense in any manner as to that procedure. Attorney Sweeney testified at some length at the post-conviction hearing as to the determinations and strategy he worked out in the case with reference to the alibi used by the defense. No question was raised in the original Motion to Correct Errors, nor on appeal to this court in 1974. This was a matter well within the knowledge of the parties at that time and was an appealable issue at that time. It therefore is not an issue available to appellant in a post-conviction motion. Incidentally, Sweeney's tactical decision was based on the fact that appellant had given him two different stories for his alibi, and that the alibi witness testified as to Sunday night, April 18, rather than Saturday night, April 17, as the night that he spent at the YMCA with appellant. On April 18, the appellant was in jail for this charge and could not have been at the YMCA. Again, we fail to see any claim cognizable under our post-conviction rules here, and on the merits find no prejudice to appellant or reversible error arising from these facts.

III.

The third, and most serious question raised in this case is a claim that the prosecutor wrongfully withheld evidence from appellant before trial. Appellant asserts that certain exculpatory statements of an on-the-scene witness, Charles Thomas, were suppressed, along with the whereabouts of another potential witness, Andrew White. Neither of these men testified at trial. Thomas has never testified at any stage of this case, though White testified at the post-conviction hearing.

Initially, it must be recognized that the underlying legal question in this case concerns the scope of the prosecutor's duty to disclose evidence, under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. All cases in this area are now governed by the recent United States Supreme Court opinion in United States v. Agurs, (1976) 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342. Like many areas of constitutional criminal procedure, the duty of disclosure has been developing by a case by case approach in recent years. In Brady v. Maryland, (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the duty was stated to be of constitutional dimension, as a matter of due process and the right to a fair trial. See also White v. State, (1975) 263 Ind. 302, 330 N.E.2d 84; Fair v. State, (1969) 252 Ind. 494, 250 N.E.2d 744. There are many types of fact situations in which this duty comes into question, however, arising out of differences in prosecutorial conduct, defense requests, and the kind of information requested or withheld. Agurs reviews all these types of cases by type and sets the due process review standards for each, thus injecting a principled and orderly process of analysis for what was formerly unsettled. Before turning to a specific discussion of the present case, then, it is appropriate to understand the various standards applicable to review of omitted evidence under Agurs.

United States v. Agurs outlines three types of cases in which the prosecutorial duty of disclosure comes into question: (1) cases in which undisclosed evidence demonstrates that the prosecution's case includes Perjury ; (2) cases in which the defense has made a Pre-trial request for specific evidence, and; (3) cases in which evidence was not disclosed but where there was only a General request for discovery by the defense or no request at all. On review, the test applicable to determining the materiality of the omitted evidence is dependent on which of the three types of cases is at hand. Agurs, supra, 427 U.S. at 103-7, 96 S.Ct. at 2397-99, 49 L.Ed.2d at 349-52.

The first type of case, involving prosecutorial use of perjury, was recognized by this court's opinions in Biggerstaff v. State, (1977) Ind.,361 N.E.2d 895, 899, and Birkla v. State, (1975) 263 Ind. 37, 42, 323 N.E.2d 645, 648, Cert. denied, (1975) 423 U.S. 853, 96 S.Ct. 99, 46 L.Ed.2d 77. A conviction obtained by the knowing use of perjured testimony is fundamentally unfair and a corruption of the truth-seeking function of the trial process, Agurs, supra, 427 U.S. at 103-4, 96 S.Ct. at 2397, 49 L.Ed.2d at 349-50, and this rule includes known false testimony relating to the credibility of a state's witness, Birkla, supra. See also Donnelly v. DeChristoforo, (1974) 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431; Giglio v. United States, (1972) 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Miller v. Pate, (1967) 386 U.S. 1, 82 S.Ct. 785, 17 L.Ed.2d 690; Napue v. Illinois, (1959) 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Alcorta v. Texas, (1957) 355 U.S. 23, 78 S.Ct. 103, 2 L.Ed.2d 9; Pyle v. Kansas, (1942) 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Mooney v. Holohan, (1935)294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. The standard of review to be applied to these cases is that the conviction "must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs, Supra, 427 U.S. at 103-4, 96 S.Ct. at 2397, 49 L.Ed.2d at 349-50. This is thus a strict standard of materiality and the highest level of scrutiny imposed in this area of law, made in view of the inherent dangers that perjury poses to our system of justice.

The second type of case in which the prosecutorial duty of disclosure comes into question is characterized by a pre-trial request by the defense for specific evidence. The case of Brady v. Maryland, (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, presented this situation, since it involved a specific request by defense counsel for the extra-judicial statements made by defendant's accomplice. See Agurs, supra, 427 U.S. at 104-6, 96 S.Ct. at 2397-99, 49 L.Ed.2d at 350-51; Birkla, supra, 263 Ind. at 42, 323 N.E.2d at 648. When such a request has been made, and requested evidence favorable to the accused is suppressed, a medium level of review is applied: the conviction will be reversed if the evidence "might have affected the outcome of the trial." Agurs, supra, 427 U.S. at 104, 96 S.Ct. at 2398, 49 L.Ed.2d at 350. Prosecutorial failure to honor requests for evidence, for which a substantial basis for claiming materiality exists, is thus "seldom, if ever" excusable. The relatively high level of appellate scrutiny given to the omitted evidence in these cases is based on the fact that the prosecutor is able to assess materiality when he knows precisely the object of his consideration. White v. Maggio, (5th Cir. 1977) 556 F.2d 1352, 1357. Thus, in order to invoke this level of review, the defendant must show that his pre-trial request, "gave the prosecutor notice of exactly what the defense desired." Agurs, supra, 427 U.S. at 106, 96 S.Ct. at 2398-99, 49 L.Ed.2d at 351.

The third class of cases discussed by Agurs arise when there has been either a general request for discovery, or no request at all. These type of cases would thus include "Keller Discovery" in this state, under the...