Panel criticizes late discovery introduction

Even while recognizing that the state’s practice of allowing late introduction of evidence basically rewards attorneys who don’t prepare for trial, the Indiana Court of Appeals looked beyond that practice to how the rules still protect a person’s right to a fair trial.

In a unanimous ruling today, the state’s intermediate appellate court issued its decision in Richard Childress, Jr. v. State of Indiana, No. 45A03-0911-CR-520. The appeal stems from a Lake Superior case in which a jury convicted Childress of two class B felonies and robbery and criminal confinement. The sole issue in this appeal is whether the trial court erred in admitting evidence that the state didn’t disclose until the second day of trial.

At issue is how the prosecutor introduced a hooded sweatshirt, apparently worn at the time of the crime, into evidence for the first time on the second day of trial. At a bench conference, the trial court barred the state from including references to the sweatshirt in its case-in-chief but determined it could be admitted as evidence on rebuttal. Childress objected, but the court allowed the new evidence that ultimately resulted in his convictions.

The appellate panel made up of Judge Margret Robb, Patricia Riley, and Elaine Brown affirmed the convictions and determined the prosecutor’s late disclosure didn’t impair Childress’ right to a fair trial.

But most notably, the panel pointed out the nuances and intricacies in the litigation process allowing the kind of late disclosure that happened in this case.

The judges noted how the general discovery principles call for a court to strive for truth, fairness, and judicial efficiency, and that Indiana caselaw reinforces that a defendant must generally object at trial to the admission of discovery not timely disclosed. If that objection is overruled, then caselaw dictates the defendant should seek a continuance, and that continuance and evidentiary issue can be reviewed on appeal. State cases that have led to that holding are Berry v. State, 715 N.E. 2d 864, 866 (Ind. 1999) and Armstrong v. State, 499 N.E.2d 189, 191 (Ind. 1986).

“We agree with Childress’s implicit argument that this rule regrettably rewards attorneys who do not prepare by allowing admission of their untimely-produced discovery,” Judge Robb wrote for the majority. “Neither does this rule penalize the attorney who has failed to adequately investigate and prepare his or her own case or witnesses, preparation which would have led to an earlier detection of the evidence that should have been disclosed earlier. Nevertheless, we observe the wisdom of the rule as it contemplates and provides a remedy where the late disclosure has been intentional or impairs a defendant’s right to a fair trial. While the rule does not advance the practice of law toward promoting justice, it appears to allow sufficiently adequate protection of defendants’ rights to the extent courts genuinely consider whether late disclosure has impaired a defendant’s right to a fair trial. Further, we are not vested with the authority to amend this rule.”

In this case, the judges found that Childress could have requested a continuance or he could have more importantly adjusted his trial strategy going forward to counter the state’s late introduction of the sweatshirt. All of the “unfair circumstances” here could have been avoided, the panel found.

“Although we admonish the State for its failure to prepare its case to timely disclose the evidence, the late disclosure did not impair Childress’s right to a fair trial and we decline to reverse Childress’s convictions,” Judge Robb wrote.