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On May 20, 2014, the State charged Hale with Dealing in Methamphetamine. On August 25, 2014, after Hale learned that [his codefendants] 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.
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. … At trial, Hale did not object to the introduction of testimony from Fisher or Casto, and did not seek a continuance.
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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. [Citation omitted.]
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Where, as here, depositions are at issue, the Indiana Supreme Court [in Murphy v. State, 265 Ind. 116, 120-1, 352 N.E.2d 479, 482-83 (1976)] … 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.
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), … our supreme court … found that “the appellant’s oral motion to depose” did not “preserve this issue for appellate review.” Id. at 462, 366. Instead, the O’Conn[e]r 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 way to avoid a denial of fair trial … is to exclude the evidence,” or “[a]bsent such circumstance, a continuance.” Id.
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 ….
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 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
[Footnote 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).
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.
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.
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Baker, J., concurs
Mathias, J., dissents with separate opinion.
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Mathias, Judge, dissenting.
I believe that the trial court’s denial of Hale’s request to depose Casto and Fisher was improper. I therefore respectfully dissent.
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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), modified the holding in Murphy to require a defendant to object and seek a continuance to preserve the issue for purposes of appeal. [Footnotes omitted.]
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.
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[s] [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.
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.
For the foregoing reasons, I respectfully dissent from the majority’s decision to affirm Hale’s conviction.