State ex rel. Grammer v. Tippecanoe Circuit Court

• Decision Date: 11 July 1978
• Docket Number: No. 478S74,478S74
• Citation: 268 Ind. 650,377 N.E.2d 1359
• Parties: STATE of Indiana on the relation of Gilbert E. GRAMMER, Jr., Relator, v. The TIPPECANOE CIRCUIT COURT and Warren B. Thompson, as Judge of Said Court, Respondents.
• Court: Indiana Supreme Court

Page 1359

377 N.E.2d 1359

268 Ind. 650

STATE of Indiana on the relation of Gilbert E. GRAMMER, Jr., Relator, v. The TIPPECANOE CIRCUIT COURT and Warren B. Thompson, as

Judge of Said Court, Respondents.

No. 478S74.

Supreme Court of Indiana.

July 11, 1978.

John H. Meyers, George J. Heid, Lafayette, Theodore L. Sendak, Atty. Gen., Indianapolis, for relator.

Warren B. Thompson, James A. Kizer, Pros. Atty., Lafayette, for respondents.

OPINION ON ORIGINAL ACTION

HUNTER, Justice.

This matter is before us on an action for writ of prohibition and writ of mandate concerning criminal discovery techniques. Gilbert Grammer, Jr., was charged by information with second-degree murder on September 14, 1977.

The discovery matters began with a routine Motion for Pre-Trial Discovery filed by the defendant and a routine Response to Discovery filed by the prosecuting attorney. The response included a list of witnesses, a list of the physical evidence obtained by the state, copies of police reports, and a copy of defendant's statement.

Defendant then filed extensive Interrogatories to be answered by the prosecuting attorney on October 17, 1977. The state has never answered these interrogatories but did file a belated Motion for Protective Order which was granted on February 15, 1978. The defendant also filed a Request for Admissions on November 30, 1977. This Request was denied by the trial court as not applicable to criminal cases.

Defendant now contends that it was error for the trial court to grant the protective order because it was filed three months after the deadline for filing objections to interrogatories as set out in Indiana Rule of Trial Procedure 33. He also contends that Ind.R.Tr.P. 36 does apply to Criminal cases. The defendant is obviously arguing for extremely radical pretrial discovery in criminal cases which has never been previously allowed either in this state or under the federal rules.

It is true that there has recently been an expansion of criminal discovery practices. This Court has established that the trial court has the inherent power, within certain limitations, to order various types of discovery in criminal cases, Antrobus v. State (1970) 253 Ind. 420, 254 N.E.2d 873; Bernard v. State, (1967) 248 Ind. 688, 230 N.E.2d 536; Ind.R.Crim.P. 21.

It is also clear, however, that discovery in favor of a criminal defendant is not required by the constitutional guarantee of due process. Wardius v. Oregon, (1973) 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82; Bernard v. State, supra. Therefore, one of the paramount factors in criminal discovery in this state is the discretion of the trial court in ordering disclosures and balancing the discovery privileges between the parties, State ex rel. Keller v. Criminal Court of Marion County, (1974) 262 Ind. 420, 317 N.E.2d 433.

The use of depositions and motions to produce has been upheld in criminal cases under appropriate circumstances, Murphy v. State, (1976) Ind., 352 N.E.2d 479; Carroll v. State, (1975) 263 Ind. 696, 338 N.E.2d 264; State ex rel. Keller, supra.

The use of interrogatories in criminal proceedings was not brought up until 1976 in Gutowski v. State, (1976) Ind.App., 354 N.E.2d 293. Gutowski had filed written interrogatories to be answered by the complaining witness. The trial court ruled that the witness need not answer the interrogatories and the Court of Appeals upheld this. However, the court pointed out that its holding was based on Gutowski's waiver of pretrial discovery by his failure to pursue his rights with diligence. The court made no clear general ruling on the use of interrogatories in criminal cases.

In considering the use of interrogatories in the present case, it is necessary to keep in mind the different purposes to be served by discovery in civil and criminal cases. A primary purpose of civil discovery is a narrowing of the issues and interrogatories are often used for this purpose. Interrogatories are seldom employed as a complete discovery device but are usually used in preparation for more detailed requests. However, in a criminal case, the charging information must be very specific. It is required to state "the nature and elements of the crime charged in plain and concise language." Ind.Code. § 35-3.1-1-2(a)(4) (Burns 1975). Since a criminal case starts in such a specific manner, it is not necessary in most instances to use the overbroad device of interrogatories to narrow the issues.

Furthermore, while interrogatories are a relatively inexpensive discovery device, they have been recognized as cumbersome and not suitable for complicated factual situations. Repetitious interrogatories are the most abused of all discovery devices and often become tools for harassment. Costanzi v. Ryan, (1978) Ind.App., 370 N.E.2d 1333; 2 HARVEY: INDIANA PRACTICE 682.

In considering the use of any discovery device the trial court must keep in mind the goals of facilitating the administration of criminal justice and promoting the orderly ascertainment of the truth. As the United States Supreme Court has said, "increasing the evidence available to both parties, enhances the fairness of the adversary system." Wardius, supra, at 412 U.S. 474, 93 S.Ct. 2211.

It appears to us that the use of interrogatories in criminal trials will not usually advance either of these goals. At the time a criminal charge is filed, the prosecution ordinarily knows or can readily ascertain the evidence available to it. This evidence is usually reported in written form and can be made available to the defense with a minimum of effort. In the overwhelming number of cases, production of these materials is sufficient to satisfy the goals of discovery. Most significantly, except in rare cases, the only person who definitely knows the truth of the charge is the accused. Therefore, the most valuable source of information belongs exclusively to the defense after counsel is appointed.

In the case at bar the extensive use of interrogatories approaches or equals the ridiculous. The defendant had already been given an adequate response to discovery including a list of the state's witnesses, copies of police reports and a copy of defendant's statement. The use of repetitious questions directed to the prosecutor is not only inefficient but is unreasonable and oppressive. The questions could all have been more appropriately and efficiently asked of the defendant himself or of the specific witnesses.

We are setting out the interrogatories in toto to indicate the absurdity of the defendant's requests:

"Interrogatory No. 1: State the conduct of the defendant that gave rise to his initial arrest.

Interrogatory No. 2: If the defendant's arrest was made without a warrant, state exigent circumstances justifying not obtaining a warrant?

Interrogatory No. 3: State when and where and by what law enforcement officer or officers the defendant was arrested.

Interrogatory No. 4: What length of time elapsed between the defendant's arrest and his first appearance before a magistrate?

Interrogatory No. 5: Before what magistrate was the defendant first taken after his arrest?

Interrogatory No. 6: When, where and by whom was the defendant advised of his constitutional rights?

Interrogatory No. 7: With reference to the answer to int. 6, name every person who was present at the time or times the defendant was advised of his constitutional rights.

Interrogatory No. 8: With reference to the answer to int. 6, state specifically what rights the defendant was advised-of on each occasion the rights were given.

Interrogatory No. 9: With reference to the answer to int. 6, did the defendant ever acknowledge he was advised of his rights, and, if so, how and when was the acknowledgment made and to whom?

Interrogatory No. 10: State whether the defendant ever waived any of his constitutional rights.

Interrogatory No. 11: With reference to the answer to int. 10, if the defendant did waive his rights, state specifically what rights were waived?

Interrogatory No. 12: With reference to the answer to int. 10, if the defendant did waive his rights, state specifically how and when the waiver was made and with whom.

Interrogatory No. 13: State whether the defendant was ever personally searched.

Interrogatory No. 14: With reference to the answer to int. 13, if the defendant was personally searched, what evidence was seized as a result of that search?

Interrogatory No. 15: State whether the defendant's residence was ever searched.

Interrogatory No. 16: With reference to the answer to int. 15, if the defendant's residence was searched, what evidence was seized as a result of that search or searches?

Interrogatory No. 17: With reference to the answer to int. 15, if the defendant's residence was searched, state when, where and by whom the search was effectuated.

Interrogatory No. 18: With reference to the answer to int. 15, if the defendant's residence was searched, state whether the search or searches was made with benefit of a warrant, or the defendant's consent, state the exigent circumstances that justified a search without obtaining a warrant or consent, if no warrant or consent was obtained.

a. If a search warrant was obtained, state when and by whom it was obtained.

b. If a search warrant was obtained, state the grounds that justified the search warrant's issuance.

c. If the search was based upon consent, state the individuals that gave the consent; state to whom, when and where such consent was given; describe any document purporting to contain such consent; and state the person who was present when the consent was given.

Interrogatory No. 19: State when, if ever, the defendant first demanded presence or assistance of counsel, and state what he was told and what was done and by whom in response to that demand for counsel.

Interrogatory No. 20: State the nature and contents of any statement or confession made by the defendant after he was taken into custody, besides that statement described in the report...