Thomas L. Hale v. State of Indiana

Sep 30 2015, 8:27 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P Attorney General of Indiana
Huntington, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas L. Hale, September 30, 2015
Appellant-Defendant, Court of Appeals Case No.
35A02-1501-CR-57
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jeffrey
Appellee-Plaintiff Heffelfinger, Judge
Trial Court Cause No.
35D01-1405-132
Bailey, Judge.
Case Summary
[1] Thomas E. Hale (“Hale”) was convicted of one count of Dealing in
Methamphetamine, as a Class A felony, and was sentenced to forty years
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imprisonment. 1 He now appeals, raising for our review the sole issue of
whether the trial court abused its discretion when it did not, before trial, permit
him to depose two of the State’s witnesses against him.
[2] We affirm.
Facts and Procedural History
[3] In February 2014, a number of individuals, including Ricci Davis (“Davis”) and
Rachelle Lesh (“Lesh”), were living in a residence on Franklin Street in
Huntington. By May 2014, Amanda Casto (“Casto”) and Mike Fisher
(“Fisher”), also resided at or frequented the residence. Davis frequently
manufactured methamphetamine in the home, and most of the adults living in
or frequenting the home used methamphetamine, often obtained from Davis in
exchange for the supplies required for the manufacturing process.
[4] Sometime in late February or early March 2014, Hale made occasional visits to
the Franklin Street home. On several occasions, Hale brought packages of
pseudoephedrine tablets, which are sometimes used to manufacture
methamphetamine. Like others at the residence, Hale would exchange these
packages for methamphetamine. On at least one occasion, Hale helped
measure out other ingredients to be used for the drug’s manufacture. And on
1
Ind. Code § 35-48-4-1.1. Effective July 1, 2014, the Indiana General Assembly enacted revisions to
numerous provisions of Indiana’s criminal statutes. Hale’s offense was committed before July 1, 2014, and
we refer throughout to the statutory provisions applicable at that time.
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one occasion during this period, Hale started the manufacturing process himself
using a small-batch preparation method involving water and other ingredients
mixed together in a plastic bottle.
[5] On May 19, 2014, Davis called 911 to report his own methamphetamine
overdose; when police inquired as to how many individuals were in the home,
Davis ended the phone call. Police determined that there were two outstanding
warrants for his arrest. As a result of this investigation and other calls made to
the police department that day concerning the Franklin Street residence, police
conducted surveillance on the home that evening.
[6] After conducting surveillance, police approached the residence to investigate.
Hale was among those at the residence, and he and the other occupants of the
home eventually agreed to cooperate with police. Police conducted a search of
the residence and discovered an active methamphetamine manufacturing
laboratory. Hale and the others were arrested at that time.
[7] On May 20, 2014, the State charged Hale with Dealing in Methamphetamine.
On August 25, 2014, after Hale learned that Fisher and Casto had entered into
plea agreements with the State, Hale filed a motion seeking to depose the two at
public expense. The trial court denied the motion.
[8] After several continuances, a jury trial was conducted on November 19 and 20,
2014. Fisher and Casto both testified at trial, and Hale cross-examined them.
Lesh, who was not charged in this matter, also testified at trial. At trial, Hale
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did not object to the introduction of testimony from Fisher or Casto, and did
not seek a continuance.
[9] At the conclusion of the trial, the jury found Hale guilty as charged. On
January 12, 2015, the trial court entered judgment of conviction against Hale
and sentenced him to forty years imprisonment.
[10] This appeal ensued.
Discussion and Decision
[11] Hale requests that we reverse the judgment of the trial court and order a new
trial because the trial court denied his motion seeking payment of deposition
costs to depose Casto and Fisher. Discovery matters are left to the sound
discretion of the trial court, and we will reverse only where the court abused
that discretion. Crawford v. State, 948 N.E.2d 1165, 1169 (Ind. 2011).
[12] In a criminal case, “[t]he state and the defendant may take and use depositions
of witnesses in accordance with the Indiana Rules of Trial Procedure.” I.C. §
35-37-4-3. When a party seeks pretrial discovery of non-privileged information
in a criminal matter, a three-step test applies:
(1) there must be sufficient designation of the items sought to be
discovered (particularity); (2) the requested items must be
material to the defense (relevance or materiality); and (3) if the
first two requirements are met, the trial court must grant the
request unless there is a showing of “paramount interest” in
nondisclosure.
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In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011). Hale argues that
both (1) and (2) are satisfied, and that the State did not meet (3), and thus the
trial court was required to grant his request to conduct the depositions.
[13] Here, Hale sought payment of costs associated with deposing two co-
defendants, Fisher and Casto, who had agreed with the State to enter guilty
pleas in exchange for their testimony against Hale at trial. In his brief, Hale
states that “the opportunity to depose the co-defendants to determine the
substance of their testimony prior to trial” would have aided his defense.
Appellant’s Br. at 8. Specifically, Hale complains that he was unable to
uncover these individuals’ possible biases or to probe inconsistencies in their
testimony. Thus, Hale’s request was sufficiently specific and his request was
material to his defense: he requested payment of expenses associated with the
deposition of two co-defendants who had entered into plea agreements in
exchange for their testimony in Hale’s case. Further, at no point did the State
oppose taking these depositions; indeed, Hale’s motion seeking payment of
costs represented to the trial court that the State had already agreed to a specific
date for the depositions of Fisher and Casto.
[14] Where, as here, depositions are at issue, the Indiana Supreme Court has held:
It is of no significance that there was eyewitness testimony. Nor
does it matter that the defendant’s task of rebutting the State’s
evidence seems insurmountable. We simply cannot say that the
inability to depose the seven witnesses was harmless. The fact
that there may have been other evidence sufficient to sustain the
conviction in no way meets this problem. We cannot presume,
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as a matter of law, that no exculpatory or mitigating evidence
would have surfaced from the depositions sought. Even if it were
determined retrospectively that nothing in aid of his defense was
discoverable, we could not discount the effect of a denial.
Effective counseling is dependent upon knowledge of the facts,
and it is essential that weaknesses as well as strengths be
discovered and intelligently addressed.
Murphy v. State, 265 Ind. 116, 120-21, 352 N.E.2d 479, 482-83 (1976). The
Murphy Court found an abuse of discretion, without application of harmless
error analysis, for failure of the trial court to grant a motion for payment of
deposition costs like the motion at issue here.
[15] We think that subsequent guidance tempers the holding in Murphy. For
example, in O’Conner v. State, 272 Ind. 460, 399 N.E.2d 364 (1980), overruled on
other grounds by Watts v. State, 885 N.E.2d 1228 (Ind. 2008), O’Conner appealed
and challenged, in part, the trial court’s denial of his oral motion to depose two
witnesses identified by the State shortly before trial, and in apparent violation of
discovery orders. Id. at 462-63, 366-67. Expressly rejecting this Court’s
conclusion that O’Conner’s motion to take depositions of these surprise
witnesses preserved the matter for appellate review, our supreme court in
O’Conner found that “the appellant’s oral motion to depose” did not “preserve
this issue for appellate review.” Id. at 462, 366. Instead, the O’Connor Court
concluded that the proper remedy in such situations—surprise witnesses
produced in violation of a discovery order—was either “[e]xclusion … when
the State’s action is so misleading or demonstrates such bad faith that the only
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way to avoid a denial of fair trial … is to exclude the evidence,” or “[a]bsent
such circumstance, a continuance.” Id.[16] The result in O’Connor is part of a long line of cases concerning the appealability
of pre-trial rulings on discovery, suppression, and in limine rulings generally:
The failure to make a contemporaneous objection to the
admission of evidence at trial results in waiver of the error on
appeal. A contemporaneous objection affords the trial court the
opportunity to make a final ruling on the matter in the context in
which the evidence is introduced.
Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (citations omitted); also
Myers v. State, 887 N.E.2d 170, 184 (Ind. Ct. App. 2008) (holding that failure to
renew a challenge to evidence at trial after an unsuccessful motion in limine
constitutes waiver), trans. denied. Often, even a continuance of a day or less is
sufficient to permit deposition of a witness for purposes of preparing for trial.
See, e.g., Liddell v. State, 948 N.E.2d 367, 372-73 (Ind. Ct. App. 2011).
[17] We think that the logical consequence of the interaction of Murphy with the
established cases on waiver would, upon objection and request for a
continuance at trial, afford a trial court with little or no discretion. This result
protects the right of a criminal defendant to obtain discovery in his or her
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defense. As with other pre-trial discovery matters, however, failure to timely
object and seek a continuance waives appellate review of the pre-trial denial. 2
[18] Here, Hale did not seek a ruling in limine excluding the testimonies of Fisher
and Casto after the pre-trial denial of his motion for payment of deposition
expenses. The trial date was continued after the court’s denial of the motion,
but Hale did not renew his efforts to obtain payment of deposition expenses.
[19] At trial, when Fisher and Casto were called as witnesses, Hale did not seek to
exclude their testimony, renew a request to depose them, or seek a continuance.
He instead proceeded on to generally well-conducted cross-examinations.
Thus, we conclude that Hale’s contention as to the propriety of the trial court’s
denial of his motion for payment of deposition costs is waived for appellate
review.
[20] We accordingly affirm his conviction.
[21] Affirmed.
Baker, J., concurs
Mathias, J., dissents with separate opinion.
2
Given the consequences outlined by the Murphy Court for failure to permit pre-trial depositions in criminal
cases, a defendant might also request the trial court’s certification of its order for discretionary interlocutory
appellate review. See Ind. Appellate Rule 14(B).
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IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals Case No.
35A02-1501-CR-57
Thomas L. Hale,
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Mathias, Judge, dissenting.
[1] I believe that the trial court’s denial of Hale’s request to depose Casto and
Fisher was improper. I therefore respectfully dissent.
[2] “Our discovery rules are designed to allow liberal discovery with a minimum of
court involvement in the discovery process.” Wise v. State, 26 N.E.3d 137, 145
(Ind. Ct. App. 2015), trans. denied (citation omitted). Also, the State
acknowledges that discovery requests, such as Hale’s request to depose Casto
and Fisher, should be granted if the defendant shows: (1) that the information
sought is sufficiently designated, (2) that the information is material to the
defense, and (3) that the State does not demonstrate a paramount interest in
non-disclosure. Id.Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015 Page 9 of 11
[3] Here, in his motion for funds to depose the witnesses, Hale specifically
designated the information sought—the depositions of Casto and Fisher.
Appellant’s App. p. 37. The information sought is clearly material to the
defense; Casto and Fisher were co-defendants who signed plea agreements with
the State indicating that they would testify against Hale. Lastly, nothing in the
record suggests at all that the State had any interests in non-disclosure. Thus, I
can only conclude that the trial court’s decision to deny Hale’s motion was an
abuse of discretion. 3
[4] The majority recognizes that, in Murphy v. State, our supreme court held that the
deprivation of the right to depose witnesses was not subject to a harmless error
analysis. 265 Ind. 116, 120-21, 352 N.E.2d 479, 482-83 (1976). However, the
majority chooses not to directly address Hale’s claims on the merits and
concludes that Hale failed to preserve his claim. In support of its decision, the
majority claims that our supreme court’s subsequent holding in O’Conner v.
State, 272 Ind. 460, 399 N.E.2d 364 (1980), 4 modified the holding in Murphy 5 to
require a defendant to object and seek a continuance to preserve the issue for
purposes of appeal.
3
The State’s argument that Hale’s request was untimely because the depositions might have led to further
discoverable evidence that might delay the trial is not really substantive, because if its rationale is accepted, it
could be used to prevent any meaningful discovery.
4
O’Conner was overruled on other grounds by Watts v. State, 885 N.E.2d 1228 (Ind. 2008).
5
I acknowledge that our supreme court’s holding in Murphy is almost forty years old. However, it appears
that the holding is still good law. In fact, the court cited Murphy in 2002, but simply distinguished the case
and gave no indication that it was not still valid precedent.
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[5] I believe, however, that O’Conner is distinguishable. At issue in O’Conner was
the defendant’s request to depose certain witnesses during trial because the
witnesses had not been disclosed to the defendant prior to trial. 272 Ind. at 462,
399 N.E.2d at 366. The O’Conner court noted that the defendant had not
requested the proper remedies for claims that the State had violated a discovery
order: exclusion of the evidence or a continuance. Id., 399 N.E.2d at 367.
[6] More importantly, in rejecting the claim of error regarding the witness disclosed
on the first day of trial, the court noted that O’Conner had “ample opportunity
to contact and depose [the witness] during those four day [after the witness had
been disclosed].” Id. (emphasis added). Thus, in O’Conner, the court assumed
that the defendant had the ability to depose one of the witnesses prior to his
testimony.
[7] In the present case, however, Hale did not request to depose the witnesses
during trial. He requested to depose certain witnesses prior to trial, and the trial
court denied these requests. As such, I do not believe that O’Conner is
controlling. Instead, I believe that Murphy suggests that denying a defendant the
right to depose a witness before trial is a violation of due process, i.e.,
fundamental error, which need not be preserved. Pursuant to Murphy, I would
hold that depriving the defendant the ability to depose the State’s witnesses was
an abuse of discretion and reversible error.
[8] For the foregoing reasons, I respectfully dissent from the majority’s decision to
affirm Hale’s conviction.
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