State ex rel. Keller v. Criminal Court of Marion County, Division IV

• Decision Date: 15 October 1974
• Docket Number: Nos. 774S131 and 774S132,s. 774S131 and 774S132
• Citation: 44 Ind.Dec. 117,262 Ind. 420,317 N.E.2d 433
• Parties: STATE of Indiana on the relation of Otis E. KELLER a/k/a Otis Kelly, Relator, v. CRIMINAL COURT OF MARION COUNTY, DIVISION IV, and the Honorable John B. Wilson, Jr., as Judge of said Court, Respondents. STATE of Indiana on the relation of Noble R. PEARCY, Prosecuting Attorney of the 19th Judicial Circuit, Relator, v. The CRIMINAL COURT OF MARION COUNTY, DIVISION FOUR, and the Honorable John B. Wilson, Judge of the Criminal Court of Marion County, Division Four, Respondents.
• Court: Indiana Supreme Court

Page 433

317 N.E.2d 433

262 Ind. 420

STATE of Indiana on the relation of Otis E. KELLER a/k/a

Otis Kelly, Relator, v. CRIMINAL COURT OF MARION COUNTY, DIVISION IV, and the

Honorable John B. Wilson, Jr., as Judge of said

Court, Respondents.

STATE of Indiana on the relation of Noble R. PEARCY, Prosecuting Attorney of the 19th Judicial Circuit, Relator, v. The CRIMINAL COURT OF MARION COUNTY, DIVISION FOUR, and the

Honorable John B. Wilson, Judge of the Criminal

Court of Marion County, Division Four,

Respondents.

Nos. 774S131 and 774S132.

Supreme Court of Indiana.

Oct. 15, 1974.

Craig Eldon Pinkus, William Levy, Indianapolis, for relator State of Indiana ex rel. Keller.

Richard L. Milan, John B. Wilson, Jr., Judge, Marion County Crim. Court, Division Four, Indianapolis, for respondents.

Noble R. Pearcy, Pros. Atty., Nineteenth Judicial Circuit, John R. Barney, Jr., David B. Hughes, Deputy Pros. Attys., Indianapolis, for relator State of Indiana ex rel. Pearcy.

ARTERBURN, Chief Justice.

We have consolidated for consideration these two petitions for Writs of Prohibition since they arise out of a single criminal trial. In an action titled 'State of Indiana vs. Otis E. Keller a/k/a Otis Kelly,' the Honorable John B. Wilson, Judge of the Marion Criminal Court, Division Four, issued a wide-ranging discovery order. This order required substantially full pretrial discovery by both the prosecution and the defendant. The order, if not complied with, was to be enforced by the Court's inherent powers. The prosecutor and the defendant filed separate petitions for writs of prohibition to be directed against certain of the discovery items sought from each of them. We deny both petitions and affirm the discovery order.

I.

The State was ordered to produce the following:

1. The names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements and a list of memoranda reporting or summarizing their oral statements.

2. Any written or recorded statements and the substance of any oral statements made by the accused or by a co-defendant, and a list of witnesses to the making and acknowledgment of such statements.

3. A transcript of those portions of grand jury minutes containing testimony of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.

4. Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons.

5. Any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused.

6. Any record of prior criminal convictions which may be used for impeachment of the persons whom the State intends to call as witnesses at the hearing or trial.

With the exception of names and addresses of prospective witnesses, the State objects to being compelled to disclose this information on the general ground that the discovery order is beyond the traditional scope of criminal discovery in Indiana. To assert that a court's action is non-traditional is not a sound argument. The question is, does the Court rationally have the power to do what it did? Most discovery cases that have come to this Court for review have been those in which a defendant has been the party asking for discovery. Cherry v. State (1972), Ind., 280 N.E.2d 818; Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387; Antrobus v. State (1970), 253 Ind. 420, 254 N.E.2d 873; Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536. Our role has been to define standards with which to judge the exercise of the trial court's discretionary denial of the motion. However, in this case the court granted motions for discovery in a completely balanced order against each side. A trial court may, sua sponte, affirmatively order discovery. We have specifically so held: 'Discovery may be provided for by statute, court rule or granted by the inherent power of the trial court.' Bernard, supra, 230 N.E.2d at 539; Accord, Antrobus, supra, 254 N.E.2d at 874. The object of a trial is the discovery of the truth. A trial judge has the responsibility to direct the trial in a manner which facilitates the ascertainment of that truth. The power to order discovery is 'grounded in the inherent power of the trial court to guide and control the proceedings.' Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60, 64. When a trial judge orders discovery, the party so ordered must do more than point out that the order is unusual or innovative. The State suggests that in respect to supplying relevant grand jury minutes of witnesses who are to testify at trial the expense would be so enormous as to make the ordering of these an abuse of the trial court's discretion. Yet, there are no data offered in support of this claim. Of course, the judge may consider expense as one of the factors applicable to the exercise of his discretion. Nevertheless, criminal discovery is designed to improve the efficiency of the criminal justice system. The idea of a trial as a sport or game is not only a reflection on the judicial process, but it is wasteful of human intelligence and technique. The discovery order was within the discretionary power of the trial judge to guide and control the trial in the best interests of justice. No proof was offered or presented in this case in opposition to the order. There is no showing of an abuse of discretion.

II.

The Defendant was subject to the following rules of discovery:

'(a) The person of the accused. Upon written motion by the State and subject to constitutional limitations, the Court may require the accused, among other things, to:

(i) Appear in a line-up;

(ii) Speak for identification by witnesses to an offense;

(iii) Be fingerprinted;

(iv) Pose for photographs not involving reenactment of a scene;

(v) Try on articles of clothing;

(vi) Permit the taking of specimens of material from under his fingernails;

(vii) Permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof;

(viii) Provide a sample of his handwriting; and

(ix) Submit to a reasonable physical or medical inspection of this body.

(b) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present. Provision may be made for appearances for such purpose in an order admitting the accused to bail or providing for his release.

(c) Medical and scientific reports. Subject to constitutional limitations, the trial court shall, on written motion, require that the State be informed of, and permitted to inspect and copy or photograph, any report or results, or testimony relative thereto, of physical or mental examinations or of scientific tests, experiments or comparisons, or any other reports or statements of experts which defense counsel has in his possession or control, except that those portions of reports containing statements made by the defendant may be withheld if defense counsel does not intend to use any of the material contained in the report at a hearing or trial.

(d) Defenses. Subject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at a hearing or trial and shall furnish the State with the following material and information within his possession and control:

(i) The names and last known addresses of persons he intends to call as witnesses together with their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements, any record of prior criminal convictions known to him; and

(ii) Any books, papers, documents, photographs, or tangible objects he intends to use as evidence or for impeachment at a hearing or trial.'

The provisions for full disclosure on behalf of both the State and the defendant are not something new. Beginning in 1964, the American Bar Association has drafted standards for criminal discovery which have an even greater scope than those presented in this case. In October, 1971, Illinois adopted rules of discovery as broad as the rules before us in this case. Since 1972, Arizona has been operating effectively with a set of discovery rules based on the A.B.A. standards. All of these rules require disclosure of defenses, names of witnesses, reports and statements of witnesses, examinations, exhibits and other matters relevant to the trial, insofar as they do not violate constitutional limitations. Persons working under these rules and informed as to their operation state publically that full disclosure results in the elimination of many trials since each side is well-informed as to its position and may look realistically at the probable results of a trial. 56 Judicature 279 (February, 1973). More recently, amendments to the Federal Rules of Procedure were adopted for the federal system. 42 L.W. 4553--56. These amended federal rules require disclosure comparable to the A.B.A. standards and those presented for our decision here.

The defendant, however, claims that to compel the disclosure of his witnesses or the type of his defense violates a constitutional right U.S. Constitution, Fifth Amendment. The United States Supreme Court has set to rest this argument. Wardius v. Oregon (1973), 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82; Williams v. Florida (1970), 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446.

The Williams Court had before it the constitutionality of an alibi-statute. Such statutes, common in many jurisdictions, require a defendant to...