Frank Stark, Petitioner-appellant, v. Charles Miller, Respondent-appellee, 53 F.3d 333 (7th Cir. 1995)

ORDER

Frank Stark appeals the denial of his petition for habeas corpus pursuant to 28 U.S.C. § 2254. Stark was convicted of Class A robbery, Ind.Code Sec. 35-42-5-1 (1979), and Class B criminal confinement, Ind.Code Sec. 35-42-3-3 (1979). Stark claims that the State violated due process by failing to timely produce a photograph of the victim's wrists, that the actions of the State and of his attorney deprived him of the effective assistance of counsel and that his sentence is unconstitutionally disproportionate.

On December 6, 1982, Stark and another man arranged to have Dennis McCoy, a home builder and realtor, show them an empty home. After the other man produced a weapon, McCoy was robbed, taken to the basement and handcuffed to a steel support beam by Stark. However, the handcuffs were too small for McCoy's wrists. After they were removed, his wrists remained scarred for six months thereafter. The State used the pain and injury caused by the handcuffs to meet to bodily injury requirement for the Class A Robbery conviction.

During his direct examination at trial, McCoy explained the nature and extent of his injuries. The prosecution then attempted to introduce Exhibit 1, a photograph of McCoy's right forearm that was taken two months after the incident and that had remained in the hands of the police for almost a full year. Defense counsel objected on the grounds that he had no knowledge of the photograph until that moment and that nothing in pretrial discovery had indicated bodily injury. The prosecutor explained that

he had learned of the existence of the existence of the year-old photograph only the previous week and had received a print on the day before trial. He further explained to the court that he had failed to immediately provide the photograph to defense counsel for inspection because defense counsel had been in court the entire day.

Stark v. Indiana, 489 N.E.2d 43, 46 (Ind.1986). Defense counsel did not seek a continuance, and the court admitted the photograph over the objection.

The Indiana Supreme Court stated that in the absence of bad faith, the failure to request a continuance waived any alleged error deriving from the failure to comply with the trial court's discovery order. Stark, 489 N.E.2d at 46. "Even assuming arguendo the prosecution intentionally violated the discovery order," the court held, "appellant has failed to show substantial prejudice." Id. The district court found that Stark had procedurally defaulted on this claim because the Indiana Supreme Court's decision provided independent and adequate state grounds and in the alternative that the photograph's admission did not deprive him of a fair trial.

Stark claims on appeal that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), which holds that a failure by the prosecution to disclose material, exculpatory evidence violates due process. Even assuming that he is not procedurally barred from raising this claim,¹  his claim lacks merit. Stark cites Brady and its progeny for the proposition that the failure to comply with the discovery order alone violates due process. However, " [t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one...." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Under Brady, the government must disclose material evidence that is favorable to the defense,²  but "it is not necessarily required to disclose such material before trial." McGeshick v. Fiedler, 3 F.3d 1083, 1086 (7th Cir. 1993) (holding that state did not deprive defendant of due process by failing to disclose impeachment material until trial). Instead, the standard for determining whether the delayed disclosure of favorable evidence violated due process is "whether the delay prevented the defendant from receiving a fair trial." Id. at 1086.

In his appellate brief, Stark does not explain how the delay prejudiced him at trial. In discounting Stark's claim that he was unprepared to rebut this new evidence, the state supreme court pointed out that the indictment apprised Stark of the element of bodily injury. Stark, 489 N.E.2d at 46. However, defense counsel chose not to depose McCoy, (Trial Tr. at 154), who could have explained the nature of his injuries and who might have informed counsel of the photo's existence. At trial, McCoy and two others testified about his injuries, and defense counsel had the opportunity to cross-examine McCoy after the photo was introduced. Furthermore, defense counsel did not seek a continuance in order to reformulate his strategy, but proceeded on with the trial. See McGeshick, 3 F.3d at 1083. In this case, the delayed disclosure did not deprive the defendant of a fair trial.

Stark's other claims also fail. Although he protested the admission of the photo-array on other grounds in district court, he did not claim that it violated his right to counsel. Thus, he may not raise the alleged Sixth Amendment violation for the first time on appeal. Drake, 14 F.3d at 355. With respect to the remaining claims, he expressly conceded them in his traverse. (R. at 16.) The district court held him to these admissions and so do we.

AFFIRMED.