White v. State

Decision Date26 June 1975
Docket NumberNo. 874S167,874S167
Citation330 N.E.2d 84,263 Ind. 302,47 Ind.Dec. 490
PartiesAnthony WHITE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

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 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.

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, 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 February 20, 1974, and called Mrs. Wilson to the stand on the next day. Without a showing of the specific manner in which a longer time for investigation would have avoided harm to the Appellant, we can only conclude that Appellant's defense was as effective without a continuance as it would have been had a continuance been granted. Consequently, no abuse of discretion on the part of the trial court has been shown.

III.

Appellant claims that he was prejudiced because the trial court refused to allow defense counsel to verbally supplement the court's voir dire. Counsel does not suggest what his verbal supplement could have produced that could not have been achieved through the written questions which the trial judge permitted both sides to submit as a supplemental to the court's conduct of the voir dire. Rule T.R. 47(A) provides simply that in the event the court conducts the voir dire 'the court shall permit the parties or their attorneys to supplement the examination by further inquiry.' This passage can not be read to require a particular form; such as, verbal questioning. A trial judge has wide discretion in arranging and conducting a proper voir dire. Robinson v. State (1973), Ind., 297 N.E.2d 409. Rather than abusing that discretion, the trial judge in this case was seeking to avoid the practice, condemned by this court in Robinson, supra, of lawyers trying their cases on voir dire. The trial judge properly assumed an active role in the voir dire proceedings and exercised this broad discretionary power to restrict interrogation to proper matters by regulating the form as well as the substance of the interrogation.

IV.

Appellant's next specification of error is the denial by the trial court of Appellant's request for additional peremptory challenges in light of the fact that Appellant and his co-defendant could not mutually join in the peremptory challenges allotted by law. IC 1971, 35--1--30--2 (Burns' Ind.Stat.Ann. § 9--1502 (1956 Repl.)). This issue was treated recently in Martin v. State (1974), Ind., 317 N.E.2d 430, wherein we upheld the statute requiring co-defendants to join in their challenges. We said:

'We are convinced therefore that the legislative decision to limit the number of peremptory challenges in the manner described was dictated by a need to fashion an efficient and expeditious jury selection process and to at the same time produce a jury neither prosecution nor defense minded. These needs are peculiarly magnified in the case in which more than one defendant is to be tried. It cannot be said that the disparate treatment of this statute is without a reasonable basis.'

Martin, supra, 317 N.E.2d at 432.

V.

When the trial court denied the motion for additional peremptory challenges, Appellant requested a severance. This request also was denied, and Appellant cites this denial as error. The granting of separate trials is covered by IC 1971, 35--3.1--1--11 (Burns' Ind.Stat.Ann. § 9--913 (1974 Supp.)) which provides, in pertinent part, that:

'(b) Whenever two (2) or more defendants have been joined for trial in the same indictment or information and one or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving...

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