*1 556 trial court his record.
We find no reversible error is, therefore, affirmed. JJ., Prentice, DeBruler, J.,
Arterburn, Hunter C. concur. Reported in E.
Note. — v. State Indiana. Hollis Marvin Sexton January 4, 1972.] Filed 670S128. [No. Muncie, appellant. Chiappetta,
Donald D. for Sendak, Attorney General, Bruney, Theodore L. R. Michael Attorney Deputy General, appellee. for appeal an is from conviction for first J. This DeBruler, by jury degree in trial the Delaware Circuit Court. murder imprisonment. life Appellant sentenced deny- first contention court erred ing petition for Quirk,
statement made to Officers Thomas and Johnson the night of his arrest. *2 818, (1968),
In 399, Nuckles v. State 250 E. 2d Ind. 236 N. pre-trial we held that the defendant had a the to take deposition of certain officers order to obtain concerning evidence the confes defendant’s sion to officers. The information was “essential those preparation to the adequate of an defense is a substantial right of the 250 is in defendant.” Ind. at 402. It interest the parties permit all prior of to a criminal defendant to obtain copies to trial of his written statements to the instead using of expensive taking the procedure and cumbersome of depositions in order to obtain the identical If the information. writing, confession was never reduced to then the defendant may deposition have to resort process approved to the Although Nuckles. 688, Bernard (1967), 248 Ind. 536, E. 2d basic the case on criminal Indiana, discovery of witnesses, dealt with lists of it cited State v. Johnson heavily in (1958), and relied 28 N. J. explicitly 145 A. which held that a criminal defendant pre-trial discovery can obtain of his own statements to police: the opportunity prepare “The need for an to to deal with a defendant’s statement an be must evident. If voluntariness is issue, may the content of revealing. the confession be explore thoroughly Counsel would need time to the truth of therein, inquire
the factual ascertations to whether it con- anything tains more than the State knew at the time when apprehended, defendant was and to consider whether the negates supports content itself or the claim defendant’s inspection may equally involuntariness. Pretrial be neces- sary statement. though freely gave even defendant concedes he the impact This so because the of the statement guilt may upon the absence of claim were revealed revealed upon stated, turn how facts upon the are or exculpatory facts may which a defendant interrogator to the or would have been inquiry complete. if had In murder cases in guilt expression disputed, manner or which is not may palliative additional circumstances have the omission significance upon jury’s deter- because of their influence may punishment. to confession contain mination as prejudicial which counsel should not be Or the and as material exscinded which should be required a de- to make hurried may possible in the situations cision courtroom. The adversary a trial multiplied. approach to The virtue presen- precisely fair opportunity lies in the for a full and tation, exami- had a unilateral and hence where the State has defendant, enabled, as feas- as far nation a he should a ible, policeman’s confession. explore completeness fairness of prepare story in the development of the prosecutor’s or signifi- may foregoing, speak be the “In the what inspection. a counsel for pretrial The fact is that cance of defendant does not know or cannot he needs be sure whether n say inspection no answer until he has had it. It is If remember’ what he a defendant ‘must said. actually furnish remember, does harm the State cannot knows, every lawyer not copy. do But as witnesses precision And when their or detail. recall statements likely sway attends one considers emotional which *3 particularly mur- wholly voluntary of crime, confession of der, ‘must remember’.” it is idle to assert that a defendant J. at 137-138. N. 387, 282, 2d (1971), 274 N. E. In Dillard v. 257 Ind. major opinion out the three this Court in a set unanimous determin by the trial court in factors to be considered ing of a to obtain criminal defendant designation discovery: (1) be There must a sufficient sought set The motion must of the items to discovered. be by by item inspected individual or forth the to either items be category, category item and with reasonable and describe each designated particularity. An with “reasonable item has been identify item or particularity” if it enables sought category enables the trial court determine compliance this order. has sufficient with there whether particularity” request set out “reasonable Whether case, the crime of each individual depend on the facts will sought discovered, items be charged, of the nature information, discovery the nature degree of other items of supra; State, Howard v. State defense, Dillard v. etc. of the 584, 244 N. E. (1969), 251 Ind. sought as follows: out the items motion set police in this action did talk to day That the “2. July, 1965. the 17th on or about
officers conversation, was said which in the course of “3. death, certain made the defendant subsequent to his wife’s being officers, police officers said to the statements Earl Quirk Thomas. Johnson, and David Michael comments, police offi- a result of these That as them, form made notes which took the cers, a statement more of or one by the defendant.” made inspected item to be out and describes the sets this We believe Dillard: “This As said in particularity. with reasonable against strictly the defend- not be construed requirement must pretrial maximize so as to be administered ant but should system judicial flow which benefits and the Criminal Justice: thereupon. ABA Minimum Standards 2d at 392. Before Trial.” 274 E. Discovery Procedure must material to to be discovered (2) The item to the defense material considered It should be the defense. might preparation “beneficial appears if it State, State, supra; Dillard v. Bernard v. case.” defense of own to the supra. The Dillard self-evident, V. would seem statement posture of this case the evidence was supra. In the State, appellant showed that killed special importance. evidence cutting a.m., July 1965, in at 12:10 her throat his wife immediately Appellant was arrested and tavern. a crowded police. to the On October a statement shortly thereafter incompetent declared to stand 1965, appellant *4 Hospital. He returned for Beatty was Memorial and sent attorney appointed February 13, and an was on trial February Appellant’s motion on represent him alleged: committed to Maximum the defendant by Beatty Memorial order of
Security of Norman Division subsequent this Court committal, by- to said was treated use of electro-shock. during “6. That treatment, the course of said defendant sixty-five (65) received some electro-shock treatments. “7. That as a treatments, result of these electro-shock memory concerning has no of the incidents his death, immediately wife’s preceding those his wife’s death prior and for some months to that time. “8. That as memory, a result impos- loss of it is attorney for adequately sible defense defendant’s prepare for the the defendant and examination of witnesses dur- ing the provided trial of this unless copy cause he is awith of said by statements made the defendant.” appellee response The made no to this motion so assume allegations they clearly true, are show the appellant’s pre-trial to the defense of the confession. appellant’s An attorney additional reason needed discovery ap- statements to the was that pellant’s insanity sole defense was and the contents of his shortly killing might statements made after the furnish im- portant regard. evidence in that
(3) requirements If above two are satisfied the trial grant discovery court must unless the State makes a sufficient showing paramount interest, any, of its if in non-disclosure. State, supra; Bernard State, supra. Dillard v. respond did not motion and paramount
therefore made no effort to show interest non-disclosure of the item to be discovered. requirements appellant’s these three pre- Under motion for his own statement made to the within killing granted. an should have hour of Appellant’s second contention is that the trial court erred in denying pre-trial discovery appellant’s motion for of a dia- gram police department of the scene of the killing shortly alleged: after the event. motion *5 represents, Defender, “1. he as Public one That Marvin charged Degree Sexton, is with crime of First Hollis who the captioned Murder in above the action. appointed represent Hollis “2. he was Marvin February 17, on 1969. Sexton investigate he had in or reason to “3. That no interest February prior to this case alleged place, the incident took the time the That at “4. ‘Rocky’s up set and Showboat’ was known as certain manner. establishment arranged in a changed time, establishment has the That since “5. through gone and has least two times at hands and owners remodeling occasions. on both extensive investigative procedures part of this the That as “6. affiant, pre- are unknown to this officers who incident diagram of the establishment. pared a scale presently diagram in hands the of the That said “7. Prosecuting Attorney or his of the 46th Judicial Circuit staff. way ascertaining no defense counsel has “8. That arrangement as lay-out ‘Rocky’s known establishment and alleged incident took the time at Showboat’
place. paramount interest of of Indiana That no furnishing and injured the disclosure of would copy diagram.” defendant, of a again principles developed apply the To resolve this issue we designated Appellant’s request the item with above. particularity clear reasonable and made paramount in- to show a made no effort item. the motion should have non-disclosure therefore terest granted. by appellant the other issues raised because doWe not reach Judgment likely they on re-trial of case. arise this are not trial. remanded for new reversed and JJ., concur; J.,
Given, Prentice, Arterburn, Hunter C. opinion. part dissents
Opinion Dissenting
in Part.
Judge
I cannot concur with
DeBruler’s
Arterburn,
C. J.
part
opinion
statement
the second and last
of his
for the
that,
appears
compelling opposing
reason
it
parties
that we are
produce,
party,
products”
for the use of the other
“work
prepared by
party
party’s
use, namely
for a
exclusive
dia-
grams,
drawings.
measurements, and
If we hold in this case
done,
opens
that can
up
party
get
then
*6
any
into files and
produced by
take
work and effort
another
party.
ways
Please remember that this should work both
to be
just and the state
or other should have the same
to ask
products”
for the “work
prepared
the defendant for the use
of his defense.
Reported in
Note. — Clifton Willie Dickerson Indiana. January 5, Rehearing 770S148. Filed denied
[No. February 23, 1972.]