Summerlin v. State, 1070S257
| Citation | 256 Ind. 652,271 N.E.2d 411 |
| Decision Date | 19 July 1971 |
| Docket Number | No. 1070S257,1070S257 |
| Parties | Austin SUMMERLIN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Henry A. Pictor, Rising Sun, for appellant.
Theodore L. Sendak, Atty. Gen., David H. Kreider, Deputy Atty. Gen., Indianapolis, for appellee.
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.
'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:
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 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 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:
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 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. 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 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 state, to refresh her memory from a memorandum without a proper showing that it was one which the law permitted to be used for that purpose, and also that the court refused to require said witness to deliver said memorandum to counsel for appellant for examination when she was testifying as a witness. Complaint is made by appellant of these rulings of the court, and they are urged as grounds for reversal. * * *
Assuming that said rulings were made as claimed, and conceding without deciding that they were erroneous, they furnish no ground for reversal, for the reason that, if the part of the testimony of said witness which depended upon said memorandum were eliminated, the verdict of the jury is clearly and fully sustained by the remaining testimony of said witness and the other evidence * * *.'
Thus, if, after excluding the testimony of the witness dependent on the memoranda, the verdict could be sustained by the remaining...
To continue reading
Request your trial
-
Com. v. O'Brien
...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); Herrmann v. Gen......
-
Shultz v. State
...condition 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. O......
-
Shack v. State
...been caused by his own acts. When a defendant causes a delay during the six month period the time begins to run anew. Summerlin v. State (1971), Ind., 271 N.E.2d 411. In the case at bar, appellant filed a motion for dismissal and discharge on October 17, 1969, and moved that the trial date ......
-
Collins v. State
...delay 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 411.3 Of significance in the latter regard is the mandate that an accused denied speedy trial must be discharged rather th......