Willner v. State
| Decision Date | 13 April 1993 |
| Docket Number | No. 82A04-9012-CR-604,82A04-9012-CR-604 |
| Citation | 612 N.E.2d 162 |
| Parties | Robert Lee WILLNER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Terry Noffsinger, Noffsinger, Price, Bradley and Shively, Evansville, for appellant.
Linley E. Pearson, Atty. Gen. of Indiana and Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
Robert Willner was convicted by a jury of bribery, a class C felony, 1 for advising a contractor that to obtain a particular contract with Vanderburgh County, the contractor would have to hire Willner's son for $1500. Willner was sentenced to two years of unsupervised probation, fined $1500, ordered to perform 200 hours of community service, removed from the Vanderburgh Board of County Commissioners and barred from holding public office for five (5) years. Willner claimed--among other things--that the Information failed to allege facts showing the charge was filed within the time required by the applicable statute of limitations. We agreed with Willner and reversed. Willner v. State (1992), Ind.App., 588 N.E.2d 581.
The State sought transfer. Our supreme court agreed with the State, vacated our opinion and remanded the case to us for consideration of the other issues raised by Willner. Willner v. State (1992), Ind., 602 N.E.2d 507. Willner raised nine issues in his brief, two of which were resolved by the supreme court. We restate Willner's remaining claimed errors as whether: (1) the trial court erred in failing to appoint a special prosecutor and in quashing the deposition of the prosecutor; (2) the trial court erred in limiting the testimony of one of Willner's witnesses; (3) the trial court erred in allowing a State's witness to give opinion testimony; (4) the evidence is insufficient to support his conviction; and (5) he was entitled to a new trial because of newly discovered evidence.
We find the trial court did not commit reversible error and affirm Willner's conviction.
The Vanderburgh County Commission is a county executive board of three elected commissioners who oversee county government. The county commissioners also serve as the county drainage board which supervises the maintenance of drainage ditches and approved drainage plans. The drainage board reviews ditch maintenance projects which have been recommended by the county surveyor. If a project is approved, the county surveyor solicits bids, examines the bids received, and makes a recommendation to the drainage board. All projects over $5000 must be advertised. For projects less than $5000, the county surveyor directly solicits three sealed bids. The final decision regarding the awarding of a bid rests with the drainage board.
In 1982, David Guillaum was the Vanderburgh county deputy surveyor and Fred Blumenauer was an assistant engineer for the City of Evansville. Guillaum and Blumenauer did each other favors. Blumenauer formed a company to perform ditch maintenance for the county. In the spring of 1982, Blumenauer and Guillaum determined that the Henry Ditch required maintenance, specifically, a number of large trees had grown in the ditch and needed to be removed. Blumenauer wanted the contract to remove the trees.
Guillaum then advised Willner of the Henry Ditch project and that Blumenauer wanted the contract. Willner advised Guillaum that if Blumenauer wanted to get the contract, Willner's son Bobby, a college student, would have to be hired by Blumenauer to work on the project. Guillaum advised Blumenauer of Willner's terms and stated that Willner wanted $1500. Blumenauer met with Willner and agreed to the $1500 payment. Blumenauer was later awarded a contract to clean the ditch for less than $5000, thus avoiding the advertising requirement for larger projects.
Once the bid was awarded, Blumenauer spoke with Bobby Willner about working on the project. Bobby refused the job. When Blumenauer informed Willner of his son's response, Willner allegedly said: R. 342. Willner then recommended his son's friend, Drew Bryant, for the project. Blumenauer hired Bryant, but then fired him after Bryant had worked only a few hours because Bryant was not doing the work correctly. Although Bobby Willner never worked on the Henry Ditch project and Drew Bryant worked only a few hours, Blumenauer drew a cashier's check for $1000 payable to Bobby Willner and Drew Bryant. He also allegedly gave the boys $400 in cash, shorting the agreed bribe by $100.
In 1986, Blumenauer got into difficulties--serious criminal charges--in Indiana and Ohio. He decided to make a deal with the Vanderburgh prosecutor in an attempt to lessen his sentences in both states. Blumenauer told of the 1982 bribe and was granted use immunity. Guillaum was also granted use immunity. A series of cases then developed in Evansville involving the mayor, the county surveyor, and the instant case.
According to Willner, the "dark thread which is weaved throughout the fabric of this case is the inability of the defendant to obtain information about the facts which could help his case." Willner's Brief at 25. The information sought had to do with the credibility of the State's primary witness, Blumenauer, a convicted thief, forger, extortionist and child exploiter. Id.
Specifically, Willner claims that the trial court committed reversible error in denying his Motion for Appointment of a Special Prosecutor and in granting the State's Motion to Quash the deposition subpoena of the prosecutor, Robert Pigman, because the prosecutor was a necessary witness for the defense. Willner claims he was denied access to information necessary to impeach the State's key witnesses.
The appointment of a special prosecutor is governed by Ind.Code 33-14-1-6 which provides in pertinent part:
(b) A circuit or superior court judge: (4) may appoint a special prosecutor if:
(A) an elected public official who is a defendant in a criminal proceeding, files a verified petition requesting a special prosecutor within ten (10) days after the date of the initial hearing; and
(B) the court finds that the appointment of a special prosecutor is in the best interests of justice.
The motion was not filed within ten (10) days. However, the parties stipulated and the trial court agreed to consider the motion. Thus, the defense merely had to show that it "was in the best interest of justice" to appoint a special prosecutor. Willner claims he met his burden because he showed that the prosecutor, due to his investigative conduct, possessed non-privileged information material to this case which was not available from any other source.
The information Willner refers to is: (1) the basis for which the witnesses (Blumenauer and Guillaum) first decided to cooperate with the State; and (2) the terms of the initial bargain between Blumenauer and the State. The trial court did not agree with Willner because this information was available from other sources--Blumenauer and Guillaum. Willner was able to depose both witnesses and then extensively cross-examined each at trial. The information Willner required clearly was available from other sources. Therefore, it is equally clear that the prosecutor was not a necessary witness and there was no need to depose him. In addition, the State must disclose to a criminal defendant, on request, any material that is exculpatory or affects the credibility of a witness that is known to the prosecutor. Fadell v. State (1983), 450 N.E.2d 109, 115 citing Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Here, assuming Willner requested such information, if either Blumenauer or Guillaum testified falsely as to the content of the conversations between them and the prosecutor, the prosecutor had the duty to disclose that fact. Since he did not, we must assume that there was nothing in those conversations that may have further impaired these witnesses' credibility. See also Richard v. State (1978), 269 Ind. 607, 382 N.E.2d 899, 613, cert. denied, 440 U.S. 965, 99 S.Ct. 1515, 59 L.Ed.2d 781 citing United States v. Agurs (1976), 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342.
Willner also did not show how the prosecutor acted improperly by taking part in the investigation, in talking with potential witnesses and in offering immunity to these witnesses. Willner failed to met his burden--he did not show it was "in the best interests of justice" to appoint a special prosecutor. The trial court did not err in refusing to appoint a special prosecutor or in denying the attempt to depose the prosecutor.
Willner claims the trial court committed reversible error when it limited the testimony of Referee Magistrate Rita Mangini, the former Franklin County, Ohio, prosecutor responsible for the prosecution of Blumenauer, on charges of illegal use of a minor in nudity oriented materials, pandering sexually-oriented material to a juvenile, gross sexual imposition and endangering children. Willner wished to introduce testimony regarding the plea negotiations between the two prosecutors. He claims this information was needed to impeach the credibility of Blumenauer. The State claimed this testimony was irrelevant. The trial court stated:
I think that this witness can testify as to what the final plea agreement was entered into by Mr. Blumenauer in the State of Ohio, what the charges were, what penalty he received. Anything else concerning that transaction--but not the negotiations leading up to that plea agreement.
R. 609. The trial court also stated that "[t]he jury is entitled to know the agreement that became the basis of his [Blumenauer's] plea, in the State of Indiana, but preliminary negotiations leading up to that plea [are] not relevant...." R. 608. Willner claims that by limiting...
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