OPINION
This case might very well be illustrative of the old maxim, "penny wise and pound foolish,"
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with regard to whether an indigent defendant should be afforded public funds with which to retain an expert witness. - Appellant-defendant John Beau champ appeals his conviction for Battery Resulting In Serious Bodily Injury,
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a class B felony, challenging the denial of his access to medical experts and the trial court's determination that several witnesses called by the State could testify. Beauchamp also urges that certain evidence was improperly admitted because the State had violated the trial court's
FACTS 3
The facts most favorable to the verdict are that on August 6, 1998, eleven-month-old Chance Chilton was brought to the Methodist Hospital emergency room in Indianapolis with a skull fracture. Chanee's mother, Suzanne Tolbert, as well as Beau-champ, her boyfriend, told the hospital physician that they were at home when they heard a thump in the baby's room followed by erying. While Tolbert's mother informed the doctor of her suspicion that the child had been abused, no report was made because Tolbert and Beau-champ's version of the events was consistent with the injuries that Chanee sustained that day.
Thereafter, on September 6, 1998, Seott Alexander, an Emergency Medical Technician with the local fire department, was dispatched to Tolbert's residence following a report that an infant was not breathing. When Alexander arrived, he observed another paramedic rendering treatment to Chanee.
Beauchamp initially told Alexander that the baby had just stopped breathing. However, Beauchamp then explained to other paramedics that Chanee had hit his head on a desk in the bedroom. As various medical personnel attempted to stabilize Chanee's head, Alexander felt the back of the baby's head and observed that it was soft and mushy. Chanee was then placed on a backboard and transported to Wishard Hospital in Indianapolis.
When the police interviewed Beau-champ, he told them that he had picked Chanee up from his erib and tripped over a beanbag chair. Beauchamp then indicated that he fell forward and Chanee hit the back of his head on a desk. At one point, an officer with the Johnson County Sheriffs Department requested Beauchamp to demonstrate how the incident had occurred. Beauchamp indicated that when he fell, Chanee's head was resting on his chest. Beauchamp then stated, however, that he had prevented Chance from hitting his head during the fall. Each time Beau-champ demonstrated to the officer how the incident occurred, his version of the events differed.
After Chanee arrived at Wishard Hospital, a CT sean was performed. The test revealed fractures to the skull and Chanee's brain density appeared abnormal and unusually dark. It was also discovered that Chanee had a subdural hematoma over the surface of the brain near the top of his skull and his brain was swollen. Moreover, it was discovered that Chance had sustained a number of spinal injuries.
Chanee eventually underwent surgery to have a blood clot removed and pressure relieved from the skull. However, Chanee died from his injuries and an autopsy was performed. - Blood was found inside Chanee's eyes and both optic nerves were swollen. The results of the autopsy revealed that Chanee died from blunt force injuries that had been inflicted upon his head and spine. The injuries were determined to be severe enough to cause brain swelling and brain death. It was ultimately concluded that the force necessary to cause such injuries was greater than a two-story fall and could have resulted from slamming Chance into a wall. Thus,
Beauchamp was arrested on September 21, 1998, and charged with battery as a class B felony, involuntary manslaughter as a class C felony, and reckless homicide as a class C felony. Prior to trial, Beau-champ filed a number of motions with the trial court requesting public funds that would enable him to retain expert witnesses to testify on his behalf. While Beauchamp had initially retained private counsel to represent him in this case from the time that the charges had been filed and members of his family had paid nearly $12,000 in legal fees, 4 as of November 23, 1999, Appellant's App. p. 234, his appellate counsel at oral argument before this court acknowledged that his trial lawyers ultimately undertook pro bono representation of Beauchamp.
In each of the motions requesting expert witness fees, Beauchamp maintained that he was indigent and argued that such funds were necessary because the evidence to be adduced at trial was complex and pointed out that the State had identified thirteen physicians that it intended to call at trial. Beauchamp alleged that the case called for extensive review and analysis of medical records, literature and concepts that were far beyond the purview of legal counsel. Thus, he argued that expert assistance was required and would be used for the purpose of advising defense counsel of the evidence that would be offered by the State and to aid in the preparation of appropriate cross-examination in specialized areas of medicine. In each instance, although the trial court determined that Beauchamp was indigent, it concluded that he failed to show that such experts were necessary. The trial court entered an order on October 14, 1999, denying three of Beauchamp's requests for expert witness funds. However, the trial court also noted that it had approved an appropriation of $3500 on December 19, 2000, to be paid to Beauchamp's counsel representing the costs incurred in taking the depositions of six witnesses. After that date, Beauchamp obtained a loan from family members in the amount of $7500 that was "primarily used to engage the services of an expert witness, Dr. Jan Leestma." Appellant's App. p. 488. After filing yet another request for funds, the trial court denied that motion on June 18, 2001. It found that Beauchamp's family had expended a total of approximately $25,000 for his defense. Appellant's App. p. 488. Notwithstanding such findings, the judge approved an al-lowancee of $1500 to Beauchamp for the "purpose of utilizing an expert in framing questions to [one of the physicians]" in that same June 18 order. Appellant's App. p. 441. In all other respects, his requests for funding were denied.
At some point during the trial that commenced on July 17, 2001, the court allowed Dr. Mary Edwards-Brown to testify for the State during its case-in-chief. It was revealed that Beauchamp had retained Dr. Edwards-Brown and consulted with her at some point during the discovery process regarding various defense strategies and
Also during the trial, the court permitted Dr. Thomas Luerssen to testify as a rebuttal witness for the State. The trial court had issued a pretrial discovery order essentially requiring both parties to disclose the names and addresses of expert witnesses, as well as reports or summaries of their expected testimony. At some point prior to trial, Beauchamp's counsel had deposed Dr. Luerssen regarding the injuries that Chance had sustained. Dr. Luerssen essentially formed no opinion as to how Chanee was injured. It was Beau-champ's theory of defense that Chanee's death was the result of the injuries he sustained in August, in addition to those that occurred on September 6. Thereafter, during rebuttal testimony that Dr. Luers-sen presented at trial, he offered opinions that were new and substantially different from those he had provided in the deposition. Specifically, Dr. Luerssen was of the opinion that Chanee's injuries could not have been caused by a fall from a erib and that they had likely been intentionally inflicted. Even though the State had listed Dr. Luerssen as a potential witnesses, it had not provided any reports or summaries of his expected testimony to Beau-champ's counsel that differed from the deposition testimony.
The State also attempted to introduce certain photographs of Chanee at trial that had not been supplied to Beauchamp's counsel until the fifth day of the trial-a clear violation of the discovery order. Those photographs showed Chanee playing on a slide and swinging on park equipment at a family gathering just prior to the fatal injuries. Even though the trial court initially exeluded some of the photos from evidence because of the State's discovery violation, it later reasoned that the pictures could be offered because one of Beauchamp's defense witnesses, Jessica Miller, had "opened the door" when she testified in narrative form that they had put Chanee "on swings and took pictures and everything." Tr. p. 2289-40.
Beauchamp's jury trial concluded on July 26, 2001, and he was convicted on the battery charge. Thereafter, Beauchamp was sentenced to a twenty-year term of imprisonment and he now appeals.
Because we reverse on the issue regarding the admission of the rebuttal testimony that was offered by the State, inasmuch as it failed to disclose the substance of the testimony prior to trial, the propriety of Beauchamp's sentence need not be addressed. However, we choose to discuss the remaining issues that Beauchamp raises, given the likelihood that those questions might again surface in the event of a retrial.
DISCUSSION AND DECISION
I. Indigenecy-Hiring Export Witness
Beauchamp first contends that the trial court erred in requiring him to show, in open court, his need for expert funds as well as demonstrating how he intended to use those experts. Specifically, Beau-champ argues that such a requirement violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and the Privileges and Immunities Clause under Article I, Section 23 of the Indiana Constitution because such a directive places an indigent defendant in a position not otherwise occupied by those defendants who are not indigent. Thus, Beauchamp maintains that the hearings the trial court conducted regarding his need for the experts amounted to invid
A. Federal Claim
In addressing Beauchamp's federal claim that the equal protection clause has been violated, we first note that the guarantee of equal protection is a right to be free from invidious discrimination in statutory classifications or other governmental activity. Harris v. McRae,
Additionally, when confronting an equal protection challenge, this court must first determine which level of scrutiny applies: the traditional "rational basis" analysis or the more stringent "strict serutiny" test. In general, the strict serutiny analysis applies only if the classification "impermissi-bly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." Mass. Bd. of Retirement v. Murgia,
Turning to the cireumstances here, our supreme court has determined that a defendant is first required to show that he is indigent and secondly, that he show a "need" for the expert in open court before public funds will be allotted to him. Scott v. State,
Here, Beauchamp complains that requiring an indigent defendant to "reveal defense theories, trial strategies, investigations, and possibly inculpatory evidence in an open hearing subject to prosecutorial cross-examination and objection before a trial court will grant funds for expert assistance," Appellant's Br. p. 8, amounts to discrimination that is based solely upon economic status and bears no reasonable or substantial relationship to inherent characteristics of the class of those indigents who are accused of committing crimes. Therefore, Beauchamp points out that it is only the indigent defendants who must reveal confidential trial strategy and possible theories of defense to the court and the prosecution.
The rational basis here justifying the requirements in Sceoft is rooted in the State's compelling interest in ensuring that public funds are not spent needlessly, wastefully or extravagantly. An indigent defendant is required to show a need for the funds that he seeks and, through this
B. State Claim
In a related argument, Beauchamp contends that the requirements set forth in Scott violate the Privileges and Immunities Clause under our State Constitution. In essence, Beauchamp urges that the disparate treatment between indigent defendants and those who can afford their own experts is arbitrary and capricious and, therefore, must be declared unconstitutional.
Article I, § 23 of the Indiana Constitution provides that "the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." The purpose of the equal privileges and immunities clause is, to prevent the distribution of extraordinary benefits or burdens to any group. State v. Price,
There are two considerations as to whether unequal privileges or immunities to differing classes should apply and be declared a violation of the Indiana Constitution. First, the disparate treatment accorded by the legislation must be reasonably related to the inherent characteristics that distinguish the unequally treated classes. Collins v. Day,
With respect to the first component, our supreme court in Collins determined that the basis for the classification must inhere in the subject matter.
The second prong required for a statute to pass muster under our constitution is that the disparate treatment must be applied equally and evenly to all those within the classification. As the Collins court observed, "any privileged classification must be open to any and all persons who share the inherent characteristics which distinguish and justify the classification, with the special treatment accorded to any particular classification extended equally to all such persons." Id. at 79. Legislative classification becomes a judicial question only where the lines drawn appear arbitrary or manifestly unreasonable. So long as the classification is based upon substantial distinctions with reference to the subject matter, we will not substitute our judgment for that of the legislature; nor will we inquire into the legislative motives prompting such classification. Id. at 80.
Here, the requirements set forth in Scott apply to any defendant who seeks public funds to hire an expert witness. Put another way, the Scott provisions that
II. Denial of Funds To Hire Expert Witnesses
Beauchamp also argues that his conviction must be reversed because the trial court erred in denying his motion for funds to hire expert witnesses that were necessary for trial. Specifically, Beau-champ maintains that the trial court abused its discretion in denying his requests because he demonstrated indigence and a need for expert witnesses. Moreover, Beauchamp urges that he adequately demonstrated how he would use such expert assistance at trial.
In addressing this claim, we note that the appointment of experts for indigent defendants is left to the trial court's sound discretion. Jones v. State,
Issues which the trial court should consider in determining whether a defendant is entitled to funds for an expert include (1) whether defense counsel already possesses the skills to cross-exam-ime the expert adequately or could prepare to do so by studying published writings, (2) whether the purpose of the expert is exploratory only, Hough v. State, (1990), Ind.,560 N.E.2d 511 , 516; and (8) whether the nature of the expert testimony involves precise physical measurements and chemical testing, the results of which were not subject to dispute. Schultz v. State, (1986), Ind.,497 N.E.2d 581 , 533-34.
Harrison v. State,
Beauchamp then notes that in his first three motions for funds to hire expert witnesses, assistance was necessary because he was charged with a class B felony, that the case involved the death of a child, that the evidence to be adduced at trial was going to be complex and the State had listed numerous medical professionals on its witness list. Appellant's App. p. 98, 131, 184. In light of the complexities of the case, Beauchamp requested the assistance of a forensic pathologist, ophthalmologist, and a pediatric neurologist or neurosurgeon. Appellant's App. p. 98, 131, 134. After a hearing on those motions, the trial court denied Beau-champ's request, determining that he failed to show that his counsel would be unable to adequately cross-examine the State's witnesses without the assistance of experts. Beauchamp filed a fourth motion on May 22, 2000, where he noted that the State had identified thirteen physicians as anticipated witnesses. Appellant's App. p. 419. Therefore, Beauchamp asserted in his request for funds that: (1) the case called for the extensive review and analysis of medical records, literature and concepts far beyond the purview of lawyers; (2) the charges are serious; and that (8) the issues of timing, causation, and mechanism/feasibility of injury are seminal and all hinge largely on medical testimony. Appellant's App. p. 419-20. He went on to precisely state that expert assistance would be used for the purpose of advising defense counsel regarding evidence and opinions of the State's witnesses, to aid defense counsel in investigating the matter and to assist him in preparing appropriate cross-examination in specialized areas of medicine. Appellant's App. p. 420. Not, withstanding these assertions, the trial court again denied Beauchamp's request, ruling that "medical testimony will be significant in this case, although the Defendant makes no assertions that he otherwise experienced difficulty with the subject matter in taking the depositions of the State's expert witnesses." - Appellant's App. p. 487.
Beauchamp contends that because the State's case hinged only upon the inferences that could be drawn from the testimony of six medical doctors with various specialties, the assistance of qualified experts was required to review the records and testimony, to aid in eross examination and to testify to the medical evidence. Thus, Beauchamp maintains that it was unjust, unfair and unrealistic to require his legal counsel to learn the specialties of various areas of medicine in order to present an adequate and effective defense. Appellant's Br. p. 24. In short, Beau-champ urges that because his counsel sufficiently demonstrated his need for expert assistance and indicated the type of assistance that was needed as well as how defense counsel expected to use those experts, his requests for funding should have been granted.
We must reject the State's contention that Beauchamp failed to establish even "a threshold showing of need" for expert witnesses. Appellee's Br. p. 15. In our view, it is apparent that Beauchamp successfully satisfied the requirement of showing legiti
By the same token, it is apparent from our review of the record that Beauchamp indeed established the necessity requirements of Scott for an outlay of expert witness funds at an earlier juncture as determined by the trial court-one month later. The trial judge likely realized this and, in our view, Beauchamp was called upon to jump an insurmountable hurdle with respect to his request for expert witnesses. That is, defense counsel was asked to prove a need for those witnesses in light of his own lack of expertise. Naturally, such a burden cannot and should not have to be met. Although Beauchamp may have been ultimately awarded access to a medical advisor by approving $1500 in public funds shortly before the trial commenced, he was not afforded the benefit of his own expert witness, despite the showing he made under Scott. Again, while the trial court determined that Beauchamp was able to pay for part of his defense, the record shows that he could not pay for most of the costs including those charged by the experts as well as attorney's fees in light of his indigency.
We certainly recognize and appreciate a trial court's desire and duty to protect the public treasury. However, in cireum-stances such as the ones presented here today, it is certainly possible to be "penny wise and pound foolish"-given the tremendous expense of taxpayer dollars in bringing this cause to trial. Thus, we would urge the trial court to reconsider its ruling with regard to this issue in the event of a retrial.
TIL - Testimony of Dr. Edwards-Brown
Beauchamp next asserts that the trial court erred in permitting Dr. Mary Edwards-Brown to testify at trial during the State's case-in-chief because she had previously been retained and consulted by Beauchamp's counsel. Inasmuch as Dr. Edwards-Brown was permitted to testify for the State after she was contacted, consulted and retained by Beauchamp's counsel, he claims that the cause must be reversed because the provisions of Indiana Trial Rule 26 were violated.
TR. 26(B)(4)(b) provides that:
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(B) or upon a showing of exceptional cireumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
In support of his argument, Beauchamp points to R.R. Donnelley & Sons Co. v. North Texas Steel Co., Inc.,
Prior to trial, Associated hired an expert witness, Raymond Tide, to review the case and provide consultative services with respect to Associated's liability in the case. Associated and Frazier eventually settled their differences with RR. Donnelley, leaving only North Texas at trial. Prior to settlement, however, Associated supplied a copy of Tide's opinion to R.R. Donnelley, North Texas and Frazier.
When the trial commenced, North Texas called Tide to testify as to his opinions concerning the cause of the rack's collapse. Tide testified that the welds were not the primary cause of the collapse and contradicted the testimony of R.R. Donnelley's expert, Kenneth Wood. R.R. Donnelley objected to the admission of this testimony based upon an affidavit of Associated's counsel, which averred that Tide had been hired as a consultative expert for the purpose of reviewing file materials, to render an opinion regarding the collapse of the racks, and to discuss the merits of the claims.
On appeal, we determined that Tide's testimony should have been excluded on two different grounds. On one basis, relevant to this appeal, we determined that the trial court violated T.R. 26(B)(4)(b) by admitting Tide's testimony at trial because Tide was a consulting expert who had been retained by Associated in preparation for trial 5 We noted that the discovery of a consulting expert in this State is not permitted absent "a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." Id. at 181. Therefore, we determined that permitting Tide to testify had the effect of subverting the very purpose behind T.R. 26.
In this case, Beauchamp points out that a meeting took place on July 10, 2000, between Dr. Edwards-Brown and his defense counsel. Appellant's App. p. 402. During that forty-five minute consultation, the two discussed the medical records and films of Chanee and how they related to Beauchamp's trial strategy. Hypothetical scenarios were also discussed that revealed certain defense strategies. Appellant's App. p. 402. Subsequent to the meeting, Dr. Edwards-Brown generated a bill, sent it to Beauchamp's counsel and payment was tendered for her services. Tr. p. 1408.
In light of these circumstances, Beau-champ points out that several other individuals in Dr. Edwards-Brown's office could have performed substantially the same services that she provided to the prosecution and points to her testimony acknowledging that another staff member in the office actually read the initial medi
Although the State maintains that the trial court had granted a motion in limine instructing Dr. Edwards-Brown not to reveal that she had consulted with Beau-champ's counsel or to refer to any statements or information she had received from defense counsel, the spirit behind preventing such a practice exercised by the State in these cireumstances is to "reinforce each litigant's motivation to aggressively develop his own side of any given case by retaining and relying on his own expert." Reeves v. Boyd & Sons, Inc.,
IV. Rebuttal Testimony of Dr. Luerssen
- Beauchamp next complains that the rebuttal testimony of Dr. Thomas Luers-sen should not have been admitted because he proffered opinions at trial that were different from his pretrial deposition testimony that had not been supplied to Beau-champ in violation of TR. 26 and the pretrial discovery order. Thus, Beauchamp contends that he was denied a fair trial because the State waited to call Dr. Luers-sen as a rebuttal witness when the evidence showed it was aware of his newly formed opinions that had not been provided to him.
In addressing this contention, we note that the trial court typically enjoys broad discretion in ruling on violations of discovery and we will reverse only if the court has abused its discretion. Palmer v. State,
In support of his argument that he is entitled to a reversal on this issue, Beau-champ first sets forth the following provisions of TR. 26(BE)(1):
A party is under a duty seasonably to supplement his response with respect to any question directly addressed to:
(a) the identity and location of persons having knowledge of discoverable matters, and
(b) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
Additionally, Beauchamp points to the trial court's standing discovery order to disclose:
(a) The names and last known addresses of persons whom the State may call as witnesses (including rebuttal or expert witnesses who can be reasonably anticipated), together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements and a list of memoranda reporting or summarizing their oral statements, and, if no statements were taken, a summary of their testimony.
Appellant's App. p. 82.
Here, Beauchamp notes that his trial counsel deposed Dr. Luerssen eleven months prior to trial with the anticipation that he would elicit certain opinions with respect to the injuries that Chanee sustained. At that deposition, Dr. Luerssen testified that he was unable to form an opinion as to the relationship between the injuries Chance received in August and those that were sustained in September. Defense counsel also extended Dr. Luers-sen the opportunity to offer any other information concerning Chance, to which he declared that he had not formed any additional opinions.
However, when Dr. Luerssen was called as a rebuttal witness by the State, he offered opinions that substantially differed from those he provided in his deposition. Dr. Luerssen acknowledged at trial that he had reviewed "some of the records in the case" and was "familiar with some of the things that happened in [the] case." Tr. p. 2480-81. On the other hand, Dr. Luerssen stated in his deposition that he had not had the opportunity to review any chart notes from the hospital and had no knowledge of "what level the skull fractures from the August confinement at Methodist [Hospital] were." Appellant's Supp.App. p. 6. Moreover, the State did not provide any subject matter or reports to Beau-champ prior to trial. Instead, Beauchamp was only provided with Dr. Luerssen's name and a vitae sheet. It was only during the rebuttal testimony offered by Dr. Luerssen that Beauchamp learned that he had formed new opinions regarding the case and that his opinion as to Chanee's injuries would be elicited at trial.
In his testimony, Dr. Luerssen declared that Beauchamp's explanation for Chanee's injuries, combined with a compression fracture of the spine was not compatible. Tr. p. 2445. Dr. Luerssen also could not agree with the proposition that all the injuries Chance suffered could have been caused by falling out of a crib onto a box. Tr. p. 2448-49, 2452. To the contrary, he stated that a child falling from a height of "gay four feet" would not sustain the types of fractures that Chance had sustained. Tr. p. 2484. In the end, Dr. Luerssen was of the opinion that Chanee's injuries were
In reviewing this testimony, it is quite apparent here that Dr. Luerssen was a known and anticipated expert rebuttal witness by the State. Moreover, the State was certainly aware that Dr. Luerssen was prepared to offer such new opinions even though they had not been provided to Beauchamp. This conduct violated the trial court's standing discovery order. Moreover, the State's actions here were in violation of the requirement under TR. 26(E)(1) that the parties supplement the substance of their expert's testimony in a timely fashion.
The State responds that Beauchamp "could have requested a continuance if he had been concerned about Dr. Luerssen's testimony," Appellee's Br. p. 19, and points to Hill v. State,
Here, the remedy of a continuance would likewise be futile because Beau-champ had already offered the testimony of Dr. Luerssen establishing that he had not formed any opinion with respect to Chanee's injuries. Until the State had introduced the damaging rebuttal testimony, Beauchamp could continue presenting his defense that the injuries occurring to Chanee in both August and September of 1998 had contributed to the death. Thereafter, this testimony that was not disclosed to Beauchamp substantially impeded the likelihood of proceeding with that defense. Therefore, we cannot perceive of any plausible way that Beauchamp might be able to extricate himself from this dilemma. We would also note that in the event that continuances could routinely be granted in cireumstances such as these, a defendant would never be able to plan a defense strategy.
It is quite apparent to us that the State engaged in a bit of "rope-a-doping" here-a term commonly used in the sport of boxing. In such instances, one fighter pretends to be trapped against the ropes while his opponent wears himself out throwing punches. Here, the State lies in wait as Beauchamp offers his defense and then goes on the offensive with the undisclosed, damaging testimony of Dr. Luers-sen. Given the prejudicial impact of the testimony as a result of the violation of the discovery order as well as the provisions of TR. 26(E)(1), we are compelled to conclude that the trial court's decision to allow Dr. Luerssen to offer his new and undisclosed opinions as to how Chance was injured amounted to reversible error. Thus, Beauchamp is entitled to a new trial on this issue.
V. Admission of Photographs
Although issue IV discussed above merits a reversal, we nevertheless address Beauchamp's argument that the trial court erred in permitting the State to offer certain photographs of Chance into evidence that were material to the defense but had not been provided to him until the fifth day of trial in the event that a similar issue
Before proceeding to the merits of this argument, we note that the admission and exclusion of evidence is within the trial court's discretion and the ruling will be reversed on appeal only for an abuse of discretion. Dunlap v. State,
The photographs here depicted Chance playing on a slide and swinging on some playground equipment on the day that Beauchamp allegedly caused the injuries that resulted in Chanee's death. Those photos were evidence that Chanee was in fine health, contrary to the defense that Beauchamp had advanced at trial The State's neglect in not supplying the photos in a timely fashion served to undermine Beauchamp's defense that Chanee's health began to deteriorate in August and progressed into September, thus rendering him more susceptible to internal bleeding and spinal fractures. Tr. p. 1799-1800. To be sure, it is apparent that Beauchamp was attempting to convey to the jury that Chanee was in a state of malaise and was physically ill at the September 6 party. The timing of Chanee's injuries was crucial to Beauchamp's defense, Tr. p. 1798-94, and because those injuries were complex, the photographs were material and favorable to his defense.
While the State did not dispute that the photos were in their possession for quite some time, it argued that it did not realize that they were relevant. Tr. p. 2188. As we determined in Turney v. State, however, even the "inadvertent" suppression of evidence by the State may be error.
We note, however, that the State's failure to disclose the photographs in a timely fashion did not prejudice Beauchamp. As explained below in further detail in issue VI, Jessica Miller acknowledged that Chanee was playful, having fun on a swing-set and was out running around at the September party. Therefore, her testimony suggesting that Chance appeared to be in good health on the day he was admitted to the hospital served to render any error on the part of the State in failing to disclose the photographs harmless. See Badelle v. State,
VI. Opening the Door For Admission of Photographs
In a related issue, Beauchamp urges that the trial court erred in determining that he had "opened the door" for the admission of a number of photographs that had previously been excluded. In particular, Beauchamp contends that Miller's statement that "we put [Chanee] on swings and took pictures and everything," constituted an unintended and unanticipated response to one of defense counsel's questions. Appellant's Br. p. 39. Therefore, because there was no intent to place the photos at issue, Beauchamp maintains that the trial court erred in determining that the door had been opened for the admission of the photographs.
This court has determined that when a defendant interjects an issue in a trial, he opens the door to otherwise inadmissible evidence. Tawdul v. State,
Here, Beauchamp's counsel had not posed a question to Miller before she interjected that photos of Chance had been taken at the family party. Miller testified that when she first arrived at the family picnic, she observed some of the people cooking food and others taking a walk in the woods. Following Beauchamp's counsel's response of "okay," Tr. p. 2240, Miller immediately continued, stating that "at the beginning ... Chanee wouldn't go to anyone else and then he eventually came to me before we put him on the swings and took pictures of him and everything." Tr. p. 2240.
We fail to see how defense counsel's statement of "okay" served to interject the photographs into issue as argued by the State. However, even though the trial court may have erroneously determined that Beauchamp opened the door with re
CONCLUSION
In light of our disposition of the issues set forth above, we conclude that permitting Dr. Luerssen to testify as a rebuttal witness for the State amounted to reversible error. The record establishes that the opinions and substance of that testimony were known to the State before trial and had not been supplied to Beauchamp. Moreover, Dr. Luerssen's opinions differed remarkably from those he presented during his pretrial deposition testimony regarding Chanee's injuries, thereby undermining Beauchamp's defense and resulting in substantial prejudice to him.
We also note that requiring Beauchamp to show, in open court, his need for expert witness funds as well as demonstrating how he intended to use those experts, is not a violation of the Equal Protection Clause under the Fourteenth Amendment or the Equal Privileges and Immunities Clause under the Indiana Constitution. However, the record demonstrates that Beauchamp satisfied the requirements of Scott, where he established a legitimate need for his own expert witnesses and how they might benefit his defense.
Additionally, we conclude that Dr. Edwards-Brown should not have been permitted to testify for the State because she had previously met with Beauchamp's counsel to discuss various theories and defense strategies that would be presented at trial Also, Beauchamp established that the photographs of Chance playing at the family reunion were relevant and material to his defense, and the State's argument that they were "inadvertently suppressed" must fail. However, such error was harmless, inasmuch as a defense witness acknowledged that Chanee was playing and appeared to be healthy at the family party just prior to his admission at the hospital. Finally, while the evidence did not support the trial court's conclusion that a defense witness "opened the door" for the admission of photographs that had been previously excluded from the evidence, that ruling did not prejudice Beauchamp and was, therefore, harmless.
Reversed and remanded for a new trial.
Notes
. Robert Burton, The Anatomy of Melancholy (1621).
. Ind.Code § 35-42-2-1(a)(4).
. - This court heard oral argument at Indianapolis on April 17, 2003 in the Indiana Supreme Court chambers. We were joined by a number of Carmel High School students and a group of international students from the Indiana University School of Law-Indianapolis. We appreciate counsel for their able presentations in the presence of so many who were witnessing our appellate process for the first time.
. Beauchamp indicated in a "Statement of Income, Expenses and Assets" filed with the court on June 19, 2000, that he was a self-employed subcontractor with a weekly take-home pay in the amount of $350. Appellant's App. p. 271. His total monthly expenses amounted to $1371, and the only asset he listed was under the category of "vehicles," which was a 1987 Ford F150, valued at $50. Appellant's App. p. 272.
. Inasmuch as Associated was no longer an adverse party when Tide was called by North Texas to testify, RR. Donnelley & Sons may be distinguished from the case at bar on this basis.
. This case was abrogated on other grounds in Hicks v. State,
. Brady v. Maryland,