                                                                       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


      Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015               Page 1 of 11
      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.

      Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015                      Page 2 of 11
      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



      Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015   Page 3 of 11
       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.


       Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015    Page 4 of 11
       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,

       Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015   Page 5 of 11
               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



       Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015   Page 6 of 11
       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




       Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015   Page 7 of 11
       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).

       Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015                             Page 8 of 11
                                                 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.

      Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015                             Page 10 of 11
[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.


      Court of Appeals of Indiana |Opinion 35A02-1501-CR-57| September 30, 2015     Page 11 of 11
