White v. State, No. 874S167

• Docket Nº: No. 874S167
• Citation: 330 N.E.2d 84, 263 Ind. 302, 47 Ind.Dec. 490
• Case Date: June 26, 1975
• Court: Supreme Court of Indiana

Page 84

330 N.E.2d 84 263 Ind. 302 Anthony WHITE, Appellant,
v.
STATE of Indiana, Appellee. No. 874S167. Supreme Court of Indiana. June 26, 1975.
Rehearing Denied Sept. 16, 1975.

[263 Ind. 303]

Page 85

Richard Kammen, Bowman & Kammen, Richard D. Gilroy, Mullin, Foley & Gilroy, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

Anthony White appeals his conviction on charges of kidnapping and commission of rape while armed [263 Ind. 304] with a deadly weapon. He was sentenced to consecutive terms of life imprisonment and twenty (20) years. Appellant White presents six (6) issues for our consideration. Appellant does not challenge the sufficiency of the evidence; consequently, we will omit a recitation of the facts of the incident which led to his conviction.

I.

Appellant believes that it was reversible error for the trial court to overrule Appellant's pre-trial Motion For Production of Exculpatory Evidence. Appellant rightly points out that in a criminal case the prosecution has a duty to reveal sua sponte any exculpatory evidence in its possession, and that a failure to do so is a violation of the due process clause of the Fourteenth Amendment. Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Fair v. State (1969), 252 Ind. 494, 250 N.E.2d 744. Appellant, however, nowhere asserts nor attempts to prove that exculpatory evidence existed. Appellant's argument is that the trial judge should have granted the motion and the state then could have affirmed that it had no exculpatory evidence. Since Brady, supra, places an affirmative duty on the state to disclose exculpatory evidence, Appellant's suggested procedure is redundant and superfluous. Therefore, it is not error for a trial court to deny such a motion unless it is specific and the evidence is shown to have existed.

Page 86

II.

After the jury had been sworn but prior to the commencement of testimony, the Court granted a request by Appellant for production of grand jury testimony of alibi witnesses. Defense counsel had an opportunity to read these transcripts, and then-made the following motion for a continuance:

'Yes, Your Honor. I have read this transcript. There are some substantial differences between what we had thought was the testimony and what was the testimony in the grand jury, and I think I need to investigate it. For that reason, [263 Ind. 305] the defendant is moving to continue this case for about a week and a half.'

The denial of this oral motion for continuance is the Appellant's second ground for review.

Appellant bases his argument on the case law which holds that the trial court must grant a continuance in order for counsel to have adequate time for preparation and investigation. Calvert v. State (1968), 251 Ind. 119, 239 N.E.2d 697; Phillips v. Grim (1962), 243 Ind. 161, 183 N.E.2d 597; see Hoy v. State (1974), 225 Ind. 428, 75 N.E.2d 915. It is equally well-settled that a motion for continuance based on a nonstatutory ground is addressed to the discretion of the trial court. Blevins v. State (1973), Ind., 291 N.E.2d 84; Calvert, supra; Jay v. State (1965), 246 Ind. 534, 206 N.E.2d 128. In order to demonstrate an abuse of this discretion the record must reveal that the defendant was prejudiced by the failure to grant the continuance. King v. State (1973), Ind., 296 N.E.2d 113; Souerdike v. State (1952), 230 Ind. 192, 102 N.E.2d 367; Detrick v. State (1932), 204 Ind. 26, 182 N.E. 706. Appellant has not set out in his Brief the alleged 'substantial differences' between the grand jury testimony and either the expected trial testimony or the actual trial testimony of the alibi witnesses; nor how he was harmed by these putative differences.

The grand jury testimony at issue was that of one Rosalie Wilson, the main alibi witness called by Appellant. Her grand jury testimony was used by the state on cross-examination. This grand jury testimony appeared to contradict in minor details some of Mrs. Wilson's testimony on direct examination. Defense counsel conducted a re-direct examination designed to rehabilitate the main thrust of Mrs. Wilson's testimony which was that Appellant was with her at the time of the alleged crime. We note that defense counsel received and read the grand jury testimony on...