Stark v. State

• Decision Date: 20 February 1986
• Docket Number: No. 684S246,684S246
• Parties: Frank STARK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 43

489 N.E.2d 43

Frank STARK, Appellant, v. STATE of Indiana, Appellee.

No. 684S246.

Supreme Court of Indiana.

Feb. 20, 1986.

Thomas J. Herr, Saul I. Ruman & Associates, Hammond, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hanson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was found guilty in a jury trial of Robbery, a Class A felony, and Confinement, a Class B felony. The court imposed concurrent sentences of forty (40) years and fifteen (15) years on the respective convictions.

The facts are: On December 6, 1982, Dennis Michael McCoy, a home builder and real estate broker in Dyer, Indiana, drove to 2547 Castlewood in Dyer to show one of his houses to a potential buyer. When he arrived at approximately 2:00 p.m., he found two men waiting. One of the men was appellant, who introduced himself as Jon Scalzetti.

McCoy proceeded to take the two men through the house. As he was showing them the kitchen, the accomplice pulled out a handgun and held it to McCoy's head. The two men took McCoy's wallet, gold watch, leather coat and $1,300 in cash.

Appellant led McCoy downstairs where he attempted to handcuff him with his back to a steel support beam. Because the handcuffs were too small for McCoy's wrists, appellant instructed him to turn around. Appellant managed to handcuff McCoy with his arms around the steel beam. He asked McCoy for the code number of his automatic teller machine card. McCoy could not remember the number but nonetheless ventured a guess.

Appellant then left. He returned about twenty minutes later and accused McCoy of lying to him about the code number. The two men finally left, with McCoy still handcuffed in the basement. He was freed by Dyer police officers about two hours later.

Detective Rick Barnes of the Dyer Police Department contacted David Crawford, the head of security for the Calumet National Bank, to obtain the photographs taken by the automatic camera in the bank machine at the Schererville branch between the hours of 2:00 and 4:00 p.m. on the day of the robbery. Detective Barnes showed the photographs to McCoy and his secretary, Connie Poole, who had seen appellant in McCoy's office. Both selected the same photograph. McCoy and Poole again selected a photograph of appellant from an array subsequently shown to them by Detective Barnes.

Appellant contends the trial court erred in admitting into evidence State's Exhibit No. 1, a photograph depicting bruises on McCoy's wrists. He argues the exhibit should have been excluded because the prosecution intentionally violated the trial court's discovery order.

The photograph was offered during direct examination of McCoy. Appellant's objection was made on the ground that he had no knowledge of the existence of the photograph until that moment. The deputy prosecutor responded that he had learned of the existence of the year-old photograph only the previous week and had received a print on the day before the trial. He further explained to the court that he had failed to immediately provide the photograph to defense counsel for inspection because defense counsel had been in court the entire day.

A trial court has wide discretion in ruling on violations of its discovery order. The trial judge is in the best position to determine what harm, if any, evolved and what the proper remedy should be. Carson v. State (1979), 271 Ind. 203, 391 N.E.2d 600. Exclusion may be required where the violation is grossly misleading or demonstrates bad faith; however, an order compelling disclosure and a continuance are generally the appropriate remedies. Hurley v. State (1983), Ind., 446 N.E.2d 1326.

We do not agree with appellant's assertion that the circumstances described above clearly demonstrate bad faith. Failure to alternatively request a continuance upon moving to exclude evidence, where a continuance may be the appropriate remedy, constitutes a waiver of any alleged error pertaining to noncompliance with the court's discovery order. Boyd v. State (1985), Ind., 485 N.E.2d 126; Sparks v. State (1979), 271 Ind. 419, 393 N.E.2d 151. Appellant did not so move, and has not alleged on appeal that a continuance to meet the evidence would not have been sufficient.

Even assuming arguendo the prosecution intentionally violated the discovery order, appellant has failed to show substantial prejudice. See Hurley, supra. His argument that he was unprepared to rebut any evidence of bodily injury, which is necessary to elevate the offense of robbery to a Class A felony, is unavailing. The element of causing bodily injury was clearly set out in the charging information. The photograph merely demonstrated the injury described by three witnesses. We find no abuse of discretion in the admission of the exhibit.

Appellant contends the trial court erroneously admitted State's Exhibit No. 3, a folder containing a number of photographs shown to McCoy by Detective Barnes. He argues the photographs were impermissible mug shots.

The court examined the exhibit and determined that because the photographs had "no name, no identification number, no indication of prior arrest" they did not fall within the "classic definition" of mug shots. The court's assessment, as well as its determination that the photographs were not unduly prejudicial, was correct. The photographs contain no markings or writings that would indicate they were taken by the police. Lawrence v. State (1980), 274 Ind. 468, 412 N.E.2d 236. The exhibit had evidential value in relation to other photographs admitted and to the issue of the pretrial identification of appellant. The court did not err in admitting the exhibit.

Appellant alleges error in the admission of State's Exhibit No. 5, a set of photographs, one of which depicted appellant, taken by an automatic camera in the automatic teller machine. He contends the foundation laid was insufficient to permit admission of the exhibit.

Under the "silent witness theory," a photograph may be admissible as substantive evidence, with no requirement that a witness testify that the photograph is an accurate representation, because the photograph speaks for itself. Torres v. State (1982), Ind., 442 N.E.2d 1021; Bergner v. State (1979), Ind.App., 397 N.E.2d 1012. The foundational requirements for admission of photographs under this theory are not absolute, in that the context in which each photograph is taken and its use at trial will differ; nevertheless, a strong showing of the photograph's competency and authenticity must be established. Torres, supra. Whether a sufficiently strong foundation has been laid is left to the sound discretion of the trial court. Bergner, supra.

Crawford testified that the automatic camera is activated when a bank customer inserts the card into the teller machine and that while in a completed transaction there would be a total of three photographs taken, there was only one photograph of appellant because the teller machine would not complete his attempted withdrawal due to the improper code number. He pointed out that the date, the time of the transaction and the number of the transaction were imprinted on the film and that the transaction number on the photograph of appellant corresponded exactly to the transaction number on the teller machine audit tape. Crawford also testified that the photographs were taken by the automatic camera at the Schererville branch, based on his identification of the branch code number on the film and of the area behind the persons depicted.

Such testimony was sufficient to establish the competency and authenticity of the photographs. The trial court did not abuse its discretion in admitting the exhibit.

Appellant alleges further error in the admission of State's Exhibit No. 6, an audit tape from the automatic teller machine. He claims that such a machine-created original...