Upshaw v. State

• Decision Date: 10 August 1976
• Docket Number: No. 3--375A51,3--375A51
• Citation: 352 N.E.2d 102,170 Ind.App. 206
• Parties: Othello UPSHAW and Barron Reeves, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 102

352 N.E.2d 102

170 Ind.App. 206

Othello UPSHAW and Barron Reeves, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3--375A51.

Court of Appeals of Indiana, Third District.

Aug. 10, 1976.

Paul Giorgi, Jr., P.C., and Nicholas J. Schiralli, Merrillville, for appellants.

Theo. L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Reeves and Upshaw were tried together for the robbery of the Father and Son Shoe Store in Gary, Indiana. They were found guilty of the robbery by a jury and both were sentenced to the custody of the Indiana Department of Corrections for a period of not less than ten (10) nor more than twenty-five (25) years. The basic issue presented by Reeves and Upshaw in their joint appeal to this Court is whether they were denied a fair trial because the State failed to comply with a pre-trial discovery order. We affirm.

Both Reeves and Upshaw were granted permission by the trial court to take depositions of the State's witnesses. These witnesses failed to appear for their depositions, and Reeves secured from the trial court this protective order on June 4, 1974:

'It is now ordered by the Court that no witness will be allowed to testify until the defendant has an opportunity to depose said witness.'

During the four month period that elapsed from the time of the above protective order to the trial on October 2, 1974, several of the State's witnesses were deposed and deposition dates for State's witnesses James Wilson and Willie Pennington were set for September 30, 1974. Although both of these witnesses failed to appear for depositions on September 30th, trial was commenced on October 2, 1974 without a defense motion for a continuance. On the evening of October 2, 1974, Reeves and Upshaw's defense counsel deposed Wilson and Pennington. The next day, the State presented testimony by both Wilson and Pennington, and Reeves and Upshaw's defense counsel thoroughly cross-examined these witnesses. At no time during the trial, did Reeves and Upshaw object to the testimony of Wilson and Pennington on the ground that the trial court should enforce its protective order barring their testimony. Reeves and Upshaw did not seek a continuance to allow for further trial preparation after deposing Wilson and Pennington.

By statute in Indiana and under Indiana case law, a criminal defendant has a general right to take depositions of the State's winesses. Amaro v. State (1968), 251 Ind. 88, 239 N.E.2d 394; Reynolds v. State (1973), Ind.App., 292 N.E.2d 290; see State ex rel. Keller v. Criminal Court (1974), Ind., 317 N.E.2d 433; IC 1971, 35--1--31--8 (Burns Code Ed.). The trial court has the inherent power to protect the discovery process by imposing sanctions such as a protective order barring testimony. Keel v. State (1975), Ind.App., 333 N.E.2d 328; see Chatman v. State (1975), Inc., 334 N.E.2d 673; State v. Buza (1975), Ind.App., 324 N.E.2d 824. Generally, the proper remedy for failure of the State to comply with a pre-trial discovery order is either an order compelling compliance, Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387, or a continuance. Dorsey v. State (1970), 254 Ind. 409, 260 N.E.2d 800; Buchanan v. State (1975), Ind.App., 336 N.E.2d 654. Under most circumstances, failure to seek a continuance waives any error resulting from the State's non-compliance with the discovery order. Owens v. State (1975), Ind., 333 N.E.2d 745; Buchanan v. State, supra.

However, under some circumstances the failure to seek a continuance will not defeat relief on appeal. If the State's failure to comply with the pre-trial discovery order was an apparent blatant disregard of the court's discovery order and resulted in a denial of a fair trial to the defendant, the defendant's conviction will be reversed on appeal regardless of the defendant's failure to seek a continuance. Dorsey v. State (1970), 254 Ind. 409, 260 N.E.2d 800; Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60. As the Supreme Court of Indiana explained in Johns v. State, supra, 251 Ind. at 180, 240 N.E.2d at 65:

'There is no doubt that appellant, by failing to move for a continuance when the witnesses were called, failed to pursue his proper remedy. However, this Court cannot and should not, look with equanimity upon a blatant disregard of a court's order by the State in a criminal proceeding, particularly where the defendant's life is at stake. Had the State, prior to trial, sought a rehearing on defendant's motion, or made a good showing of inability to comply with the order, it would not now be in a position of having deliberately disobeyed the order of the trial court. We agree with appellant's counsel in their argument that it is fundamentally a denial of due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States to lead a defendant to believe that he has been afforded the right of discovery, and then permit the State of Indiana, in violation of an order of court, to present, during its case in chief, surprise witnesses whose testimony substantially added to the weight of the State's case.'

In Gregory v. State (1972), 259 Ind. 295, 300, 286 N.E.2d 666, 670, the Supreme Court of Indiana explained that the reversal in Johns v. State, supra, was imposed as a sanction against the State, '. . . both for the blatant disregard for the court's order to disclose the names of witnesses and for improper issuance of the search warrant.'

In Dorsey v. State, supra, defendant did request a continuance upon failure of State's witnesses to appear for depositions, but the trial court overruled the defendant's motion for continuance. The Supreme Court of Indiana reversed the trial court for failing to grant the continuance...