holding that "[ajssuming that it was error for the trial court to grant the continuance, in view of the statute, it does not necessarily follow that a reversal is required” when the defendant was not prejudiced by the trial court's error
How later courts described this case
- holding that "[ajssuming that it was error for the trial court to grant the continuance, in view of the statute, it does not necessarily follow that a reversal is required” when the defendant was not prejudiced by the trial court's error
- concluding the Fourth Amendment permitted police to examine defendant’s clothing after they seized it pursuant to a lawful arrest
Written by the judges who cited it.
The opinion
HUNTER, Justice,
concurring in result.
I concur in the majority’s resolution of Issues II through X, as well as the result ultimately rendered by the Court. I respectfully decline to join the analysis which the majority has employed in its disposition of-Issue I, however; that analysis concerns defendant’s contention that the trial court erred when it granted the state’s motion for a continuance based on the absence of a material witness which the state had failed to list on the charging information.
Initially, I note the majority has prefaced its analysis of the claim with the caveat “Assuming it was error for the trial court to grant the continuance . . . . ” We need indulge no assumptions. Clearly it was error and this Court should say so. The controlling statute, Ind. § 35-3.1-1-2 (Burns 1979 Repl.), is unambiguous. The statute, which governs the form and contents of charging instruments, reads in pertinent part:
“(c) An indictment, or information, shall have stated upon it the names of all the material witnesses. Other witnesses may afterwards be subpoenaed by the state, but unless the name of a witness be stated on the indictment or information at the time it is filed, no continuance shall be granted to the state on account of the absence of such witness.” Ind.Code § 35-3.1-l-2(c), supra [emphasis added].
In the face of the emphasized language, the trial court’s error is not disputable.
My primary concern, however, is with the rationale by which the majority deems the error harmless. Its test, I fear, is no test at all and erodes the essence of subsection (c).
It is always true that a continuance will provide a defendant with the opportunity to prepare for the testimony of a material witness who has not been listed on the information. In finding the error harmless on this basis, the majority characterizes subsection “(c)” as designed to establish “witness disclosure requirements.”
The responsibility to reveal material witnesses in the charging instrument, however, is merely one component of a broad range of disclosure duties imposed on the state in Ind.Code § 35-3.1-1-2, supra.
The array of information which the state is required to disclose serves to insure the defendant is fully apprised of the charge against him, as well as the sources of testimony upon which it is based. The prohibition against the state’s ability to obtain a continuance based on the absence of a material witness not listed on the information is the “teeth” of the statute; significantly, it is the only sanction available to a defendant to enforce compliance with the requirement that material witnesses be listed on the charging instrument.
*240 That is so by virtue of our case precedent, wherein we have repeatedly held that a material witness may be permitted to testify even though the state has failed to list his or her name on the charging instrument, as required by statute. See, e.g., Denton v. State, (1965) 246 Ind. 155 , 203 N.E.2d 539 ; Stevens v. State, (1959) 240 Ind. 19 , 158 N.E.2d 784 ; Ruffenbarger v. State, (1921) 190 Ind. 616 , 131 N.E. 514 . In those cases, we have predicated our conclusion on the fact the only consequence of noncompliance with the witness disclosure requirements is that the state cannot obtain a continuance.
In order to perpetuate compliance with the witness disclosure requirement and foreclose any opportunity for abuse and gamesmanship in the statute, a stricter burden should be placed on the state to show an erroneously granted continuance does not warrant reversal. The state should be required to bear the burden of showing: (1) the witness was in fact “material” and presented testimony not cumulative in nature; (2) the failure to list the witness on the charging instrument was inadvertent or otherwise justifiable; and (3) the delay obtained was not a dilatory tactic and was necessitated by circumstances beyond the state’s control. In conjunction with the responsibility of the state to satisfy these considerations, the defendant should be permitted to show how, if at all, the delay harmed his presentation of his case or otherwise prejudiced him.' On a case-by-case basis, this balancing test, with its focus on the state’s burden to establish the harmless nature of the error it has precipitated, would insure the witness disclosure requirement of Ind.Code § 35-3.1-1-2, supra, retains meaning and enforceability.
Here, the record reveals that Mildred Southward was a material witness in that she witnessed the shooting-at-issue. She was not listed on the information because her existence as a material witness had not been discovered by the state until after the charge had been filed. And her absence was necessitated by the fact of Southward’s hospitalization and need for major surgery, a circumstance beyond the state’s control. In. addition, the record does not indicate defendant was prejudiced in any way by virtue of the continuance.
On the basis of this rationale, the trial court’s error in granting the continuance was harmless. Consequently, I concur in the conclusion of the majority that defendant’s conviction should be affirmed.
Concur in result.