Summerlin v. State, No. 1070S257

Docket NºNo. 1070S257
Citation256 Ind. 652, 271 N.E.2d 411
Case DateJuly 19, 1971
CourtSupreme Court of Indiana

Page 411

271 N.E.2d 411
256 Ind. 652
Austin SUMMERLIN, Appellant,
v.
STATE of Indiana, Appellee.
No. 1070S257.
Supreme Court of Indiana.
July 19, 1971.

[256 Ind. 655]

Page 412

Henry A. Pictor, Rising Sun, for appellant.

Theodore L. Sendak, Atty. Gen., David H. Kreider, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal by Austin Summerlin, appellant, who was charged by affidavit with assault with intent to kill, pursuant to IC 1971, 35--13--2--1 (Ind.Ann.Stat. § 10--401a (1970 Supp.)). Upon pleas of not guilty and not guilty by reason of insanity at the time of the alleged offense, trial was had before a jury and appellant was convicted of assault and battery with intent to kill. Following conviction, appellant was sentenced to the Indiana State Prison for a period of two (2) to fourteen (14) years.

Appellant presents five issues for review. First, he asserts an unreasonable limitation of character witnesses. Before the defense introduced any witnesses other than the accused, the trial court limited the number of character witnesses to be called by the defense to five. Appellant claims character was of great importance to the issue of permeditated malice, and that the limitation to only five (5) character witnesses, when he was prepared to call ten, was an abuse of discretion. We cannot agree.

[256 Ind. 656] 'It has long been the law in this State that the number of witnesses who may be called to prove a single issue of fact is within the sound discretion of the trial court and, while such discretion may be reviewed, the exclusion of such evidence will not constitute reversible error unless a clear abuse of discretion is shown. Chappel v. State, 1926, 197 Ind. 272, 276, 150 N.E. 769; Butler v. State, 1884, 97 Ind. 378. See also Annotation, 21 A.L.R. 1(a), at page 335; Annotation, 48 A.L.R. 1(a), at page 948.

Professor Wigmore in § 1908, p. 580, Vol. 6, 3d Ed., Wigmore on Evidence, states the rule as follows:

'The value of character-evidence, impeaching or sustaining a party or a witness, is commonly much exaggerated (ante, §§ 920, 1611). Its comparative futility in the ordinary case, and its tendency to degenerate into a mere exhibition of petty local jealousies and animosities, of no real probative service, have induced the Courts to concede unanimously that the number of character-witnesses may without disadvantage be limited, as the trial Court may prescribe." Dobbs v. State (1957), 237 Ind. 119, 121--122, 143 N.E.2d 99, 100--101.

Appellant does not deny that limitation lies within the discretion of the trial court. In the instant case, appellant knew beforehand the number of character witnesses he was to be allowed, and there was only one witness in rebuttal. The trial court can, and in many cases should, at its discretion, limit the number of character witnesses to be presented. A parade of character witnesses

Page 413

on either side might divert the jury from the main issues of the case and allow the trial to result in a trial of character instead of a trial on the facts. Even admitting, arguendo, that, as appellant alleges, premeditated malice is a material issue, there is no showing that the limitation in this case prejudiced appellant in any way. Any further presentation of witnesses appears cumulative. It is the content and quality of testimony which is important, not the number of witnesses. The trial court did not abuse its discretion in so limiting the number of character witnesses.

Appellant asks that we establish guidelines in this area, but such an undertaking is not practical. The circumstances of [256 Ind. 657] each case may vary extensively. The importance of character will depend on the particular circumstances of each case. The trial court is in the best position to decide this issue, and the defendant is protected from abuse by the right of review. It would be unwise to handcuff the trial court with some rigid rule or formula.

Appellant next claims error in the trial court's refusal to allow defense counsel to inspect the notes and records of a state witness, Doctor Fong, which the witness used to refresh his memory, while on the stand.

'While there is some authority to the contrary, it is also the well-settled rule that the opposing party or counsel has the right, on proper demand, to inspect and use for purposes of cross-examination any paper or memorandum which is used by a witness while on the stand for the purpose of refreshing his memory upon the matters as to which he is testifying, and which in fact does tend to refresh his memory.' 125 A.L.R. 194, 195.

Professor Wigmore agrees with the majority rule:

'On a general principle, that has in view the risk of imposition and false aids, against which the opponent is entitled to the means of protection, the writing must be shown to him on request. Furthermore, as by his opportunity of inspection the opponent is guarded against imposition clearly apparent, so by cross-examination based on the paper he may further detect circumstances not appearing on the surface, and may expose all that detracts from the weight of the testimony.' Wigmore on Evidence § 762 p. 108, Vol. III, 3d ed.

The basis for the trial court's refusal was that these were the confidential notes of the doctor. It is the well established rule, and we need not cite any authority, that the doctor-patient privilege belongs to the patient only which he may waive. Also, the privilege extends only to those things of a confidential nature. Baker v. Whitaker (1962), 133 Ind.App. 347, 182 N.E.2d 442. The right of the doctor-patient privilege was not recognized at common law but is statutory. Collins v. Bair (1971), Ind., 268 N.E.2d [256 Ind. 658] 95; Stayner v. Nye (1949), 227 Ind. 231, 85 N.E.2d 496; Myers v. State (1922), 192 Ind. 592, 137 N.E. 547; IC 1971, 34--1--14--5 (Ind.Ann.Stat. § 2--1714 (1968 Repl.)). The purpose of such privilege is to encourage free and open communication between doctor and patient in order to attain the necessary information for adequate treatment. The purpose of the privilege is not the suppression of truth. Collins v. Bair, supra; Penn Mutual Life Insurance Co. v. Wiler (1884), 100 Ind. 92. IC 1971, 35--5--2--2 (Ind.Ann.St. § 9--1702 (1956 Repl.)) reads in part:

'* * * When an insanity defense is pleaded, the court shall appoint two (2), or three (3), competent disinterested physicians to examine the defendant, and to testify at the trial * * *'.

See also Brattain v. State (1945), 223 Ind. 489, 61 N.E.2d 462; and Noelke v. State (1938), 214 Ind. 427, 15 N.E.2d 950. The statute indicates that defendant makes his mental condition a justiciable issue in a criminal proceeding and thus waives any privilege concerning his mental condition.

Page 414

See Collins v. Bair, supra, and Brattain v. State, supra. Although Doctor Fong was a state witness and not one of the court appointed psychiatrists, his examination was in conjunction with the court appointed examination. That no privilege is contemplated in this situation is self-evident. Since there is no choice or privilege afforded defendant, justice requires he be given the fullest opportunity to cross-examine.

This reasoning logically extends of notes and records referred to on the stand. Such memoranda should be available for investigation upon request in order to provide defendant the full opportunity to defend himself and confront the witnesses agaisnt him. See Morris v. United States (5th Cir. 1906), 149 F. 123. In Falcone v. New Jersey Bell Telephone (1967), 98 N.J.Super. 138, 236 A.2d 394, appeal denied, 51 N.J. 190, 238 A.2d 475, the trial court's refusal to permit plaintiff's counsel to examine certain records or notes of defendant's expert medical witness, which had been used to refresh his recollection while testifying, was held to be [256 Ind. 659] erroneous. If the memoranda used in the instant case were considered privileged or confidential as 'work product', this privilege or confidentiality was waived when they were used on the stand. Therefore, since the mental examination was ordered by the court, the examination was not for treatment, and the memoranda were not otherwise privileged or confidential, it was error to deny defense counsel the opportunity to examine the notes and records used by Doctor Fong to refresh his memory while on the stand.

However, it does not appear that appellant was prejudiced by the error, and therefore the cause cannot be reversed upon this issue. In order to be reversible, the error must prejudice the substantial rights of the defendant. If the rejection of the request does not so prejudice the defendant, the error is harmless. Micks v. State (1967), 249 Ind. 278, 230 N.E.2d 298; Farley v. State (1962), 243 Ind. 445, 185 N.E.2d 414; Stice v. State (1950), 228 Ind. 144, 89 N.E.2d 915; Henry v. State (1925), 196 Ind. 14, 146 N.E. 822. In Leach v. State (1912), 177 Ind. 234, 238, 97 N.E. 792, 794, this Court was faced with a situation similar to the one in the instant case:

'It is claimed by appellant that the court, over the objection of appellant, permitted one Meagher, a witness for the...

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33 practice notes
  • Shultz v. State, No. 2-980
    • United States
    • March 16, 1981
    ...is in issue waives the physician-patient privilege. Green v. State (1971), 257 Ind. 244, 274 N.E.2d 267; Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 411 (when defendant makes mental condition justiciable issue in criminal proceeding, he waives any privilege); see also K. Olson, A Lo......
  • Com. v. O'Brien
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 10, 1995
    ...refresh recollection prior to deposition amounted to waiver of attorney-client privilege and work product protection); Summerlin v. State, 256 Ind. 652, 659, 271 N.E.2d 411 (1971) (work product protection of memorandum waived when used to refresh recollection of testifying witness); Herrman......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...Hunt v. State (1973), Ind., 296 N.E.2d 116, 120; Bonds v. State (1972), 258 Ind. 241, 280 N.E.2d 313, 315--316; Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 411, 416; Barker v. State (1957), 238 Ind. 271, 277--278, 150 N.E.2d 680; Culp v. State (1943), 222 Ind. 202, 206, 52 N.E.2d 48......
  • Collins v. State, No. 3--1273A176
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1975
    ...resulting from his acts. At the time of Collins' trial, delay chargeable to him caused the period to run anew. Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 3 Of significance in the latter regard is the mandate that an accused denied speedy trial must be discharged rather then merely ......
  • Request a trial to view additional results
33 cases
  • Shultz v. State, No. 2-980
    • United States
    • March 16, 1981
    ...is in issue waives the physician-patient privilege. Green v. State (1971), 257 Ind. 244, 274 N.E.2d 267; Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 411 (when defendant makes mental condition justiciable issue in criminal proceeding, he waives any privilege); see also K. Olson, A Lo......
  • Com. v. O'Brien
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 10, 1995
    ...refresh recollection prior to deposition amounted to waiver of attorney-client privilege and work product protection); Summerlin v. State, 256 Ind. 652, 659, 271 N.E.2d 411 (1971) (work product protection of memorandum waived when used to refresh recollection of testifying witness); Herrman......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...Hunt v. State (1973), Ind., 296 N.E.2d 116, 120; Bonds v. State (1972), 258 Ind. 241, 280 N.E.2d 313, 315--316; Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 411, 416; Barker v. State (1957), 238 Ind. 271, 277--278, 150 N.E.2d 680; Culp v. State (1943), 222 Ind. 202, 206, 52 N.E.2d 48......
  • Collins v. State, No. 3--1273A176
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1975
    ...resulting from his acts. At the time of Collins' trial, delay chargeable to him caused the period to run anew. Summerlin v. State (1971), 256 Ind. 652, 271 N.E.2d 3 Of significance in the latter regard is the mandate that an accused denied speedy trial must be discharged rather then merely ......
  • Request a trial to view additional results

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