ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL J. MCDANIEL
New Albany, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
STEVEN I. PAUL, ) ) Appellant-Defendant, ) ) vs. ) No. 22A01-0304-CR-138 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Crim. Rule 4(B)(1)s direction to discharge is mandatory, and nothing will prevent the
rules operation save its own exceptions. Crosby v. State, 597 N.E.2d 984,
987 (Ind. Ct. App. 1992). As indicated above, the rule excepts from
the seventy-day period any time attributable to a continuance or delay by the
defense, court congestion, or an emergency. Lowrimore v. State, 728 N.E.2d at
864. Moreover, and importantly, the purpose of Crim. Rule 4 is to
ensure early trials, not to allow defendants to manipulate the means designed for
their protection and permit them to escape trials. McKay v. State, 714
N.E.2d 1182, 1190 (Ind. Ct. App. 1999).
Regarding Crim. Rule 4(B)(1) in general, and the emergency and congestion exceptions in particular, our supreme court has stated:
Upon an incarcerated defendants request for a speedy trial, Criminal Rule 4(B) requires particularized priority treatment. The rule is not satisfied merely by scheduling such a case for trial at the next date available for criminal cases or for cases generally. Rather, it must be assigned a meaningful trial date within the time prescribed by the rule, if necessary superseding trial dates previously designated for civil cases and even criminal cases in which Criminal Rule 4 deadlines are not imminent. We recognize, however, that emergencies in either criminal or civil matters may occasionally interfere with this scheme. Similarly, there may be major, complex trials that have long been scheduled or that pose significant extenuating circumstances to litigants and witnesses, which will, on rare occasions, justify application of the court congestion or exigent circumstances exceptions.
Clark v. State, 659 N.E.2d 551, 551-52 (Ind. 1995). Therefore, Crim. Rule
4(B)(1) permits trial courts, on rare occasions, to continue trials outside of the
seventy-day period due to emergency exigent circumstances without running afoul of the rules
Paul contends the trial courts denial of his Motion for Discharge made pursuant to Crim. Rule 4(B)(1) was clear error because unpreparedness due to the States failure to provide discovery does not constitute an emergency permitting a continuance beyond the seventy-day limitation period of the rule. As an initial matter, we note the parties disagree regarding when the seventy-day period was triggered. Paul asserts that the seventy-day period began by virtue of his oral motion at the November 6, 2002 initial hearing, while the State asserts that the clock did not start running until Paul filed his written motion for a speedy trial on November 26, 2003. We decline to reach the merits of this argument. Since the State failed to raise any objection to the calculation of the trial date or the timeliness of the Motion for Discharge to the trial court, the issue is waived.
Turning to the merits of Pauls argument that the denial of his Motion for Discharge was clear error Paul relies on a line of authority holding that the States failure to provide discovery is not a permissible reason for delay under Crim. Rule 4 and discharge is thus mandatory. See Marshall v. State, 759 N.E.2d 665 (Ind. Ct. App. 2001); Crosby v. State, 597 N.E.2d 984; Biggs v. State, 546 N.E.2d 1271 (Ind. Ct. App. 1989). While Pauls reading of the caselaw is correct, his application to the facts of the instant case is not. Marshall, Crosby, and Biggs all involved situations where the State was found to have either violated discovery orders or been negligent in providing discovery. To put the defendants in a position whereby they must either go to trial unprepared due to the States failure to respond to discovery requests or be prepared to waive their rights to a speedy trial, is to put defendants in an untenable situation. Biggs v. State, 546 N.E.2d at 1275 (finding that the continuance of the case was due to the States failure to comply with discovery as evidenced by the trial courts order requiring the State to comply within thirty days). See also Crosby v. State, 597 N.E.2d at 988-89 ([t]he trial court made a factual finding that the reason for the delay was the States negligence in complying with discovery and its late filing and amendment of the charges, not that an impending exigency demanded postponement); See footnote Marshall v. State, 759 N.E.2d at 670 (finding that the State failed to provide defendant with necessary DNA discovery despite repeated continuances).
In the instant case, nothing in the record suggests that any alleged failure or delay in providing discovery was attributable to the State. First, the State responded to Pauls discovery requests on January 9, 2003, producing documents and information as well as allowing Paul access to audio-taped witness statements. Admittedly, production occurred four days before the scheduled start of trial. The production, however, was made within twenty-three days of the discovery order and was not belated under Indiana Trial Rules. See Ind. Trial Rule 34. Second, rather than finding the States discovery responses were inadequate, the trial court held that the State has not violated the discovery order but had complied with such order to the best of its ability given the facts and circumstances of this case. Appellants Appendix at 103. Namely, that discovery was provided within seven business days from when the new prosecutor took office. Finally, we note that despite Pauls argument that he requested and received the January 13, 2003 early trial date at his November 6, 2002 initial hearing, Paul did not request any discovery from the State until December 17, 2002. Pauls argument that the State bears sole responsibility for his unpreparedness is belied by the fact that he waited forty-eight days to request discovery in a murder trial set to begin in seventy days. Therefore, Pauls citation to caselaw supporting the rule that the State cannot circumvent the effect of Crim. Rule 4 by failing to provide discovery is unpersuasive.
Paul also contends that counsels unpreparedness resulting from a failure to provide discovery does not constitute an emergency justifying delay under Crim. Rule 4(B)(1). While the term emergency is not defined by the Indiana Rules of Criminal Procedure, this court has determined an emergency existed where defendants counsel was appointed less than three weeks before trial and asserted he did not have adequate time to prepare. State v. Love, 576 N.E.2d 623 (Ind. Ct. App. 1991). Paul argues that Love is distinguishable because the lack of preparation was not due to any action or inaction by the State. As previously discussed, however, the trial court affirmatively found that the State had complied with the discovery order and had done so to the best of its ability under the circumstances. Therefore, as in Love, Pauls lack of preparation was not due to any action or inaction by the State and unpreparedness of counsel was an emergency exigent circumstance justifying delay.
Finally, Paul contends that affirming the denial of his Motion for Discharge will allow the State in future cases to tender belated discovery, force the defendant to reschedule the trial, and eviscerate the early trial right under Crim. Rule 4(B)(1). We disagree. First, we do not envision the unique factual situation of this case arising with any frequency. Second, and more importantly, here the State was not derelict in its duties and provided discovery expeditiously under the circumstances. The trial court determined that proceeding with trial raised constitutional concerns based on Pauls lack of preparation and continued the trial for a reasonable time, i.e., from January 13, 2003 to February 23, 2003. A greater problem would be created by holding otherwise as defendants would be encouraged to file motions for speedy trials under Rule 4(B)(1) and then delay requesting discovery, recognizing that the States inability to comply in advance of trial will result in successful motions for discharge.
Based on the foregoing, we find that the trial courts determination that an emergency existed which required continuing and rescheduling Pauls trial date was not clearly erroneous. This determination supported the trial courts denial of Pauls Motion for Discharge pursuant to Crim. Rule 4(B)(1). See footnote
RILEY, J., and SULLIVAN, J., concur.