*1 420 analysis and lack agree not, however,
I do May rel. ex of State weight given by majority case my judgment 145, N. E. 855. Hall v. fully appeal and directly point case on with the this case is on does supports appellants’ position Article § Assembly power General upon of the create a limitation following a tie vote vacancy municipal office create a therefore, is, 48-1246, case in Burns’ and that as did § today. holding I, our direct with the Ives case and conflict therefore, Hall cases to be irreconcilable the Ives and conceive overruling today opinion to be the the effect of our Hall case. holder, municipal who office incumbent
In the event an consequently for not a candidate to continue office following vote, voted, the termi- a tie holds over whom no one brought by the election of a term about nation of his can be special purpose. in a election for that successor called N. E. Reported Note. — of Indiana. and Codalata
Antrobus rehearing petition February filed.] 1970. No Filed 169S6. [No. *3 George Popcheff, Graf, T. Frederick J. Indianapolis, both of appellants. for Sendak, Attorney General, Jahr, Dep-
Theodore L. Aaron T. uty Attorney General, appellee. appeal is an
DeBruler, J. This from the conviction of Degree Burglary appellants First both in a trial without jury County 1. in the Marion Criminal Court charged
Appellants and one Ronald Schoolcraft with were breaking Marjorie removing-a into the Trivett and home.of containing $5,000.00. Marjorie testified concern- Trivett safe entering ing breaking, and theft of safe but was not identify any so she could not of the a witness to the offense offering burglars. only at the trial The witness evidence accomplice way appellants crime was the tied Appellants were indicted for the offense Ronald Schoolcraft. along granted upon but their were with Schoolcraft motion separate trial. denying allege that the trial court erred
Appellants first discovery respects: (I) appellants’ attempted in two The requesting appellants’ appellee motion trial court denied produce pre-trial certain case made grand jury police, and to the the witness Schoolcraft purpose impeachment of cross examination for the of the appellants’ pre-trial peti- (II) trial witness. The court denied psychiatric for a tion examination competency in order to
Schoolcraft determine his as a witness. PROCEDURES DISCOVERY I. CURRENT discovery proceedings applicable in civil rules of proceed applicable in criminal are not as such Indiana courts techniques discovery ings. However, embodied applicable pro in criminal rules will often those ceedings power trial has the inherent discovery techniques necessary pro implement such as are State hearing. Bernard a full and fair vide the defendant 536; (1968), E. 2d Johns 248 Ind. 230 N. 172, 240 N. E. 2d by trial courts in deal- guiding principle followed to be discovery was set down in ing criminal the area of *4 Bernard v. request by State, supra. case involved a a That of names of witnesses to be for a list defendant criminal deny holding to against it was error such him. used said: this Court a motion that a list of witnesses would have been self-evident “It is appellant’s of case. We do not preparation
beneficial in the
require
lay
that the State
bare its case in advance of
trial
nor
the criminal defendant be allowed a
fishing expedition,
objections
however these
do not
arise
requested
when a list
of witnesses
and the State fails
paramount
to
a
show
interest
(Emphasis
non-disclosure.”
added.)
paramount interest in non purpose disclosure. . . . The justice the Bernard doctrine is to insure and fairness in proceedings criminal not and it is axiomatic that an accused is justly fairly tried when compelled his counsel is to maneuver in a factual jus- vacuum. Nor is fairness and gained tice enhanced through when convictions are surprise, prosecution misleading (Emphasis the defense.” added.) 240 2d N. E. 60. (1968), In Amaro v. State 239 N. 2dE. support principle right used the defendant’s pretrial depositions take witnesses court saying . . “. the denial was not within the discretion of the paramount trial in that the failed to show inter- est nor did the trial its court on own motion make such a finding.” See also Nuckles v. State E. N. principle
We believe that relied on the above cases provides appellants’ allegations the basis for the review of the of error. OF DISCOVERY PRE-TRIAL
II. STATEMENTS denying issue is whether the trial court The first erred in requesting appellee produce pre-trial motion appellants’ police this case made and the *5 grand jury by Schoolcraft, purpose the witness for the impeachment cross examination and of the witness. We will question concerning first discuss the statements made to the police.
A. MADE TO STATEMENTS POLICE examining length, After cross appel- witness at some require lants “any made a motion produce to to and all written statements witness ... aid the defense in examining cross the witness.” The trial court denied this saying up judges motion change it was not to trial the law in this area. following exchange
On re-cross place examination the took appellants’ attorney: between the witness and “Q. Schoolcraft, you Mr. when talked to some detectives case, you sign did about this statement for them ? Sir,
A. I talked to the F.B.I. before I ever did talk to investigators, myself up, my I ever before did clear past. Q. my Well, you, Schoolcraft, question you Mr. have involving made a written statement this about case . .
Codalata and Antrobus .
A. That’s correct sir.
Q. Marge ... Trivett. Who has the written state- ment? A. I made a written statement.
Q. Who has the written statement? Who took the written ?
Statements
A. did, Mr. Stout sir.
Q. Mr. Stout. Was there one or more than one? A. too, Atwell sir, was there present. was Q. right, All was there one statement or more than one you? statement taken from Sir,
A. I don’t know.
Q. many you sign? How did signed everything I did, A. on statements that I had sir. Q. signed you you Did read them before them? Yes, sir, my I rights.
A. was advised of constitutional right, the defendants time at
MR. ORR: All record, for the and Antrobus Codalata Honor, their motions renew Your wit- copies of the written given to Detec- has said has been ness Atwell.” tives Stout appellants’ motion response State to the There no motion. produce and the trial denied the *6 connecting crime appellants with the The sole evidence accomplice, Schoolcraft. charged the was police had the appellants until after were not arrested from Schoolcraft. received information crime the past, dope in the had used The witness testified that he had charge,” under had been “pre-mental a been arrested on days of Gen- thirty psychiatric ward in the observation for jail, in had at- Hospital, attempted while the eral suicide had being knife, police used as a a tacked a officer with prior cases, pending had two in nineteen arson, not burglary for and had still and one convictions he was indicted for which been sentenced for the crime jointly appellants. he had The witness also admitted against previously appellant another case Codalata in testified guilty. appellant In this context it is where was found great inspecting appellants interest in the obvious that had possible pre-trial in cross witness’ statements for use examina- impeachment. tion and principles Bernard that under the of the case
holdWe court, appellee absence of was error for the trial deny showing non-disclosure, ap- paramount interest by pellants’ requesting production appellee motion police pre-trial statements made officers for witness’ impeachment purpose of cross-examination and of the witness. adopted many general jurisdictions rule has been This (1957), 657, Jencks v. U. United States. S. 353 U. S. 1007, 1103, adopted 1 L. 2d 77 Ct. Ed. S. rule judiciary. federal Later the Jencks rule entire was substan-
427 tially 3500, incorporated pro 18 in Title U. S. C. which now § obtaining such statements. State v. vides federal rule for 37, (1963), 83; People Ashton 95 Ariz. 386 P. 2d v. Estrada 713, (1960), 641; 54 2d Cal. 355 P. 2d State v. Hutchins 100, (1957), 342; v. Neiman 51 People Del. (1964), 138 A. 2d 393, 8; People 30 Ill. 2d 197 N. E. 2d (1933), Salimone 265 486, 594; Mich. 251 N. (1917), W. v. Bachman 41 Nev. 197, 733; State v. Hunt (1958), 168 P. 25 N. J. 138 2dA. Rosario 1; People (1961), N. Y. 2d 9 881; E.N. (1965), Commonwealth v. Smith 219; Pa. 208 A. 2d Pruitt v. State App. 187, Tex. Cr. 355 S. W. 2d respect right With to a defendant’s to obtain such state First, ments we hold the rule to be this: the defendant must lay proper foundation for his motion or the trial deny properly adequate An it. foundation is (1) laid sought when: The witness whose statement is examination; (2) substantially has testified on direct A ver transcription of prior batim statements made the witness probably to trial shown be within the prose control of the cution; and, (3) relate to matters covered in *7 testimony present the witness’ in the case. laying foundation,
After may the defendant move the require produce trial court to the State to such statements for use the defense in cross impeach examination and ment of the witness. If the proper foundation is the grant trial court must the motion and order the state directly ments turned over to the defendant unless the State alleges: (a) are no There such statements within the control of the State. The trial hearing must court conduct a on the issue, conflicting parties of claims the to (b) resolve this necessity keeping ais the There contents of the statements confidential, (c) The statement also contains matter not re lated to matters covered in testimony the witness’ and the portion. not wish State does to reveal that In the latter two given directly cases the statements need not be to the de- given his decision court for the trial to should fendant but agrees with court concerning claim. If the trial the State’s deny may court (b) (,c) trial the then on the State only the or turn over to the motion defendant’s portion of statement. relevant the met the founda examination on re-cross motion made the because witness testified requirements out above set
tion signed police. gave a statement he that witness, that excerpt quoted the record shows the from examination, testifying appellee on direct for the after signed given statement had that he stated adequate police. This was an founda to this case facts produce pre-trial to these state appellants’ motion tion for purpose of cross-examination and ments of the witness showing of the absence of a State’s impeachment, and in the it error paramount in non-disclosure was for the trial interest deny it. departure is a from the rule in that this rule effect We note prior In Anderson the Bernard case. holding Court in that it was E. N. deny produce police the defendant’s motion to
not error to containing reports of statements witnesses said: under no decide that circumstances here do not “We by witnesses which inspect made are the accused file, first shown that such state- as where part such wit- direct conflict are in ments prior such statements would open court and nesses attempt the accused. There was no prove innocence at in this case.” 239 Ind. conflict prove such require rule does a defendant better believe We inconsistency testi the statement and the prove between an he what mony before even knows the witness Supreme the statement. As the Court said in supra: S., adopting rule Jencks U. said *8 judge lawyer “Every and trial knows experienced trial purposes impeaching of statements of the wit- for the value recording ness the events time before dulls treacherous memory. testimony Flat contradiction between the witness’ given and the of reports version the events in his is not the only inconsistency. of test The omission reports from the trial, of facts emphasis related at the or a upon contract facts, the same even a different treatment, order of are also cross-examining process relevant to the testing the credi- bility of testimony. a witness’ trial “Requiring the accused first to show conflict between the reports actually deny and the is the accused evidence relevant and material to his defense. occasion determining for a conflict cannot arise until after the wit- testified, conflict, ness has Gordon, and unless he admits as in helpless reports. the accused is to know or discover conflict without inspecting requirement showing A of a of con- clearly incompatible flict would be the with our standards for justice administration criminal in the federal courts rejected. and must United States therefore For the interest of the prosecution a criminal ‘. . . is not that it case, justice but shall win a U. S. shal be done. . . .’” 853 leading case, People Rosario, New York supra, a court said: pretrial “A statement of witness for the just not
valuable as a source of contradictions with which testimony. to confront him and discredit his trial Even seemingly harmony testimony may statements with such prove helpful contain matter which will on cross-examina- They may bias, tion. reflect instance, a witness’ for supply knowledge otherwise the defendant with essential to damaging testimony neutralization of the witness might, perhaps, which of turn the scales in his favor. Shades meaning, stress, additions or omissions be found place which will tion upon witness’ answers examina- direct entirely light. in an different .. . omissions, “Furthermore, contrasts and even contradic- discrediting tions, perhaps, witness, certainly vital are apparent impartial presiding judge as as to single-minded accused; counsel for the the latter is in a far position appraise better pretrial value of a witness’ impeachment purposes. attorney Until his opportunity statement, has an to see asked, it is how effectively judge’s can answer he the trial assertion that *9 480 or, testimony given nothing with the at variance
contains wit- attempt such to discredit least, him in his useful at ness?” People Chapman supra; People Estrada, v. v. also
See (1960), People 428; 95, P. 338 2d (1959), 52 Cal. 2d Wolff v. (1959), 360 318, 197; Palermo U. S. 167 N. E. 2d 19 2d Ill. 1217, interpreting Title 1287, 348, 2d 79 S. Ct. 3 U. S. L. Ed. Act). (Jencks 18 U. C. 3500 S. § legal discussing require- from explicitly refrain
We admissibility into evidence. a statement of such for the ments right inspect the state- only appellants’ here dealWe and in cross examination possible use its to determine ment witness. impeachment of the prior to require to show a defendant rule
Neither does our prove seeing the inno would the statement his even a defendant do not how defendant. We see cence of the any requirement case it satisfy but in ever could con under what issue here is because the is irrelevant inspect to determine may statement ditions examining impeaching the credi possible use .cross its Obviously it have such a use with bility of the witness. directly proving innocence of the defendant. out MADE TO THE JURY
B. GRAND STATEMENTS applies rule to statements made the above believe We grand jury as well as statements made witness agents of the State. Such statements law enforcement being possibility ex much useful in cross as have credibility amining impeaching good pre-trial type of statement and there is no other as differently them unless the to treat shows reason in non-disclosure. paramount interest jurisdictions adopting this examples other rule see: For 855, 973, 16 (1966), 384 U. S. L. Ed. 2d U. 86 S. Dennis v.
431 Supreme affirmed (where Court S. Ct. 1840 United States (1964), judiciary) ; People Johnson rule for the federal v. 602, 399; (1963), 31 2d DiModica Ill. 2d 203 N. E. State v. 825; 404, People Agron (1961), 40 J. A. 10 Y. N. 192 2d N. v. 130, 176 E. 2d 556. N. Indiana, Thrawley (1898), N. E. adhering is the basic case to the rule of non-disclosure reasoning recently such adopted statements and the there Mahoney v. State E. N. 2d 271. support Several reasons were the rule offered of non-dis only any weight *10 closure but the one which carries at all is that statutory right grand juror the defendant a had a call testify concerning testimony grand the of witnesses before the jury pursue but statutory remedy. he failed to his 9-817, is
The statute referred to now Burns’ Ind. Acts § 1905, 169, 103, says part: ch. which § grand jury may, however, “A member of the required be by any testimony court to the of disclose a witness examined grand jury, purpose given before the for ascertaining the of by whether it is consistent with that the witness be- the .
fore ..” court. First, by we note that reliance court on this the statute removes from consideration a claim that rule of non-dis requirement secrecy is
closure based on a of testimony grand jury. of witnesses before the The Thrawley Mahoney explicitly and cases relied on the right statutory testimony defendant’s to have such revealed through grand jury. Thus, a member of the is the issue overturning secrecy one requirement of choosing of but technique revealing which for the contents of statements made grand jury by practical. the witness is more calling grand of jury method a member of the is a clumsy, expensive, time-consuming, unreliable method for dis covering pre-trial such grand statements of the witness. The juror subpoenaed testify would have to be and then from mem- jury grand the before
ory
the witness’
avail
trial.
years,
the
given months,
before
sometimes
deny the
reason
statutory procedure
not a
ability
of this
technique of
cheaper, more reliable
simpler,
the much
use
prose
transcript
the
produce
requiring
prosecutor
the
by
grand jury
use
cuting
testimony before the
witness’
impeachment of the
in cross-examination
required to
addition,
prosecutor has not been
witness.
per
statutory
has been
procedure but
pursue that awkward
transcript
testi
stenographer’s
of the witness’
mitted to use a
examin
purpose
cross
mony
grand jury for
before
Kidwell State
at trial.
ing
impeaching the
119; Coppenhaver
State
v.
251 N. E.
(1969), 252 Ind.
453; Higgins
67 N. E.
(1902), 160 Ind.
absolutely
justification
no
see
The court in holding when it said: support itsof com- plaintiff. is the The indictment is the “The State complaint civil proof in a plaint. than is It is no more grand jury minutes of the takes clerk of action. The not, may may They given be before them. evidence prereserved correctly minutes are clerk. These taken for memorandum of what the to attorney trial as a on the the use of expected State’s witnesses *11 testify is no more entitled to the use to. defendant in a to than is a defendant civil case his of these minutes adversary’s trial brief of evidence.” 153 at 386. the arguments. in no merit these The fact that We see allegations “proof” it is not of the in is irrele- the indictment does not alter the fact that the of wit- vant and jury given grand returned the indictment nesses cross-examining may and im- the defendant be useful to peaching trial. at the the witness may clerk possibility that transcribe the testi the every present mony correctly case where a witness makes an put oral statement which is taken down or in writ ing by support general someone and else thus does not against grand jury transcripts rule course, as Of such. if writing the witness’ statement is not in or taken down sub stantially verbatim, then is no prose there “statement” the produce allege cution to and prove. the State so and prosecution may The fact that the the of the use statement grand jury witness to the as a memorandum at the trial justifies way no refusing to the to obtain it allow also and determine for himself its use for cross-examination impeachment. .copying Since 1899 the methods of docu- changed radically ments have permit prosecution the have the use of the statement well as as the defendant. analogy relying
To the extent an Court on practice procedure progress right the in civil discovery unpersuasive. in civil completely cases renders appellants proper now We look see whether laid produce their foundation for motion to Schoolcraft’s state- grand jury ment made to the about this case. On re-direct prosecutor following examination of the witness the asked the questions of the witness:
“Q. testify grand Now, you jury, you did before did not? correct sir. A. That’s
Q. you story you today? tell Did the same there did Yes, sir. A.
Q. you gave police And also one more statements to the spring subject, you of 1967 on this in the did not? correct, sir. A. That’s Now, time, Honor,
MR. ORR: at this Your de- fendants Codalata and Antrobus move copies of the statements referred by and grand jury before the given to detectives this case voluntarily brought since the matters has those before Court. I think they are an now issue in the case.” *12 above it requirements set out is Applying foundation substantially transcription of the wit verbatim obvious that grand jury this case was ness’ prose probably the control shown to be within cution. fully requirements out set above. the foundation
This met by questions that the asked fact were bolstering credibility that fact. If does alter the witness’ deny production anything, even untenable makes it more of the statement defendant. EXAMINATION FOR MENTAL
III. PETITION OF WITNESS denying trial court erred is whether the The second issue following pre-trial petition: sworn and show the Court: the defendants “Come now is cause Ronald Schoolcraft in this “1. co-defendant verily believe will are informed the defendants whom against prosecuting them. be a witness also “2. Ronald Schoolcraft Said pending Court, in this cases in numerous other criminal Hendricks County, and otherwise. indicted Ronald has been “3. That said Schoolcraft past. in the the use narcotics history had a “4. That said Ronald has Schoolcraft disturbances, including pre- at least on a one arrest mental verily were informed and mental condition as the defendants believe. said Ronald Schoolcraft believe that the “5. Defendants by he be liar and that should examined psychopathic
ais reports psychiatrists and of his exami- appointed Court their counsel. be made available nations pray “WHEREFORE, Defendants psychiatrist, examined be Ronald Schoolcraft reports counsel made available to examinations their of their proper relief.” other for all appellants supporting state memorandum In their more purpose examination: specifically the defendant, “First, Dickie would show the Codalata *13 in this Court that Ronald Schoolcraft a .co-defendanfc case subject suggestion incompetency. to a of
V *1» again urges “THEREFORE, the defendant that the Court compe- to be examined as to order Ronald Schoolcraft his added.) tency.” (Emphasis appellants’ petition, any way sworn uncontraverted in by appellee, by the was overruled trial the court without indication of the basis for his decision. petition the of absence the ap- the witness Schoolcraft
parently competent would have a been witness under Ind. 1905, 169, 235, Acts ch. Burns’ 9-1603: § § competent “Who following are persons witnesses. —The are competent witnesses:
[*] [*] [*] Accomplices, they testify.” “Third. when consent to However, appellants petition with their raised the issue applicability of the (Spec. Ind. Acts 1881 Sess.), ch. 275, Bums’ 2-1714: § § incompetent. following persons “Who are shall not —The competent witnesses: they “First. Persons insane at time are offered as
witnesses,
they
adjudged
whether
have been so
or not.”
competency
challenged
When
witness’
was
under the
duty
statute
became the
of the trial court
to determine
competent
testify.
witness
whether the
As this Court
said in Wedmore v.
State
143 N. E. 649:
objection
timely
“In this case if
competency
to the
made,
witness had been
it would have been the
duty of
to make such an examination as would
satisfy
Jur. Witnesses
competency
it as to her
Am.
incompetency.
58
134.”
See 714; Carpenter (1858), v. Dame objection witness’ com- to the nature of the
Due case, satisfy petency in this an examination which would necessarily competency an court as to would include trial his psychiatrist. a examination of the witness Without such an the trial court would have no sound examination basis for alleged informed determination as to the an witness’ incom- petency insanity. a to be witness due therefore, it was error for the trial court to
We, hold that petition a mental deny appellants’ examination showing by appellee of a absence denying petition. course, Of paramount interest power pro inherent courts has the issue the trial *14 prevent merely delaying a defendant from order tective harassing witness. proceedings or Judgment of trial court is and the trial is reversed grant appellants’ motion for new trial. ordered to concurs; Givan, J., Hunter, C.J., separate concurs Arterburn, J., concurs; Jackson, J., which opinion in concurs in result. Opinion
Concurring
majority opinion.
result
with the
concur
J.
I
Givan,
I
point
I
out
do not concur with the
However, wish
(1967),
citing
State
230 N. E. 2d
Bernard
240 N.
E. 2d 60.
Johns v.
536 and
proposition
for the
these cases stand
re
Both
call
witnesses whose
error
the State
names
versible
They
prior
furnished to defendant
to trial.
are
not been
have
authority
necessary
herein,
decision reached
not
therefore,
cited.
and,
should
J.,
Arterburn,
concurs.
Reported
Note. —