Borst v. State , 459 N.E.2d 751 ( 1984 )

STATON, Presiding Judge.

Following a jury trial, Robert Lee Borst, Jr. (Borst) was convicted of possession of cocaine¹ and possession of marijuana.² Borst appeals. On appeal, we must consider only the following issue:

Whether the trial court denied Borst a fair trial by excluding the testimony of one of his witnesses rather than granting a continuance to allow the State time to investigate information provided by that witness.

Reversed and remanded for a new trial.³

'On February 8, 1983, the date set by the trial court for completion of discovery, defense counsel sent the State a letter which listed the witnesses Borst expected to call at trial. One witness listed was Michael Evans. The letter stated that Evans's address was unknown, but would be provided when it was available. A trial date of May 26, 1982 was set. On May 17, Borst filed a Motion for Continuance, alleging difficulty in locating witnesses. On May 24, defense counsel notified the State that Michael Evans had been located. On May 25, the State filed a Motion in Limine, seeking to exclude Evans's testimony because his address had not been supplied earlier. At a hearing on May 26, the trial court denied Borst's motion for a continuance, noting that he had been in jail for several months. In support of the State's Motion in Limine, the prosecutor argued that Borst had known how to contact Evans but had not informed his attorney whom he had seen in February and in the two weeks prior to trial. The prosecutor maintained that Evans had given him the names of others present during the evening Borst was arrested, concluding,

"[Evans] has opened avenues which I feel should be explored if this cause is to be prosecuted conscientiously, and I simply don't have time to do it at this point in time.'" (Record, p. 208).

However, the prosecutor stated that the State did not want a continuance, and that the State wanted Borst to comply with the discovery order. The Motion in Limine was granted, pending an offer of Evans's testimony at trial.

On May 28, 1982, the defense made an offer to prove Evans's testimony. Following a hearing, the court granted the Motion in Limine on the grounds that Borst had communicated with Evans prior to December, 1982 but that Evans's address was not disclosed to the State until two days before trial, so the State did not have sufficient time to interview other witnesses. The court also stated that discovery had been ordered completed by December, 1982, so the February 8 letter did not comply. The record indicates that this statement was in error; discovery was ordered closed by February 8, 1983. (Record, p. 20).

The purpose of discovery is to provide both parties with the maximum possible amount of information with which to prepare their case before trial. Johnson v. State (1979), 179 Ind. App. 28, 384 N.E.24 1035. When a discovery order has been violated, thereby thwarting that purpose, the choice of remedy for the violation lies within the sound discretion of the trial court and will not be overturned absent clear error. Anderson v. State (19838), Ind., 448 N.E.2d 1180, 1184-85; Lloyd v. State (1988), Ind., 448 N.E.2d 1062, 1067; Reid v. State (1978), 267 Ind. 555, 872 N.E.2d 1149. In general, the appropriate remedy is a continuance, but evidence not disclosed by the State may be excluded if the State has acted in such bad faith as to jeopardize the defendant's right to a fair trial, Amderson, supra; Lloyd, supra. This remedy is generally invoked only if the State has blatantly and deliberately refused to comply with the discovery order, Johnson v. State, supra, and specific prejudice has resulted. Robinson v. State (1983), Ind., 450 N.E.2d 51, 52; Lagenour v. State (1978), 268 Ind. 441, 376 N.E.2d 475.⁴

Borst contends the trial court's action denied him a fair trial. The Sixth Amendment to the United States Constitution guarantees a defendant the right to present witnesses on his behalf. This right is embodied in the due process requirement of the Fourteenth Amendment and applies to proceedings in state courts. Camarillo v. State (1980), Ind.App., 410 N.E.2d 1202, 1204. We agree that, by excluding the testimony of Evans the trial court denied Borst his right to present a witness in his favor.

The State contends that Borst acted in bad faith by not providing Evans's address sooner. In support of this contention, the State argues that Borst had been in touch with Evans during the time he was incarcerated but had not asked Evans to contact his attorney. The State also notes that Borst had sought previous continuances and that he had forced one attorney to withdraw from his defense and another to attempt to withdraw. The record shows that Evans had moved during the time Borst was incarcerated and had sold his business. It also shows that Borst did not meet with his attorney from February until a few weeks prior to trial. When defense counsel located Evans through a message left with a bartender, she notified the State on the next working day.

Even if we were to assume, solely for the sake of argument, that bad faith on Borst's part would justify infringement on his Sixth Amendment right, the evidence falls short of demonstrating bad faith. Moreover, the State made no showing of substantial prejudice to its case if a continuance were granted.⁵ The prosecutor conceded that consciencious prosecution would require him to explore the information provided by Evans but urged that the trial begin as scheduled.⁶ Exelusion of Evans's testimony was not the proper remedy in this case; the State's objections to the admission of the testimony could have been overcome by the granting of a continuance. The trial court's refusal to grant a continuance or to allow Evans to testify denied Borst a fair trial. Therefore we reverse and remand for a new trial.

GARRARD, J., concurs in result. HOFFMAN, J., dissents with opinion.

1 . IC 1976, 35-48-4-7 (Burns Code Ed., 1979 Repl).

2 . IC 1976, 35-48-4-11 (Burns Code Ed., 1982 Supp.).

3 . Because we remand for a new trial, we do not address the other issues raised in this appeal.

4 . We also observe that error resulting from noncompliance may be waived by a failure to ask the trial court to compel compliance with the discovery order. Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387; Perdue v. State (1979), Ind.App., 398 N.E.2d 1290, 1295 (trans. denied ).

5 . The State wishes to usé the charges in this. case as the basis for revoking Borst's probation. A delay in trial would have required that a separate hearing be held to revoke Borst's probation before it expired.

6 . We recognize the trial court's interest in bringing Borst to trial expeditiously because he had been incarcerated for seven months. However, this consideration does not justify the denial of a fair trial.