MEMORANDUM DECISION
May 13 2015, 10:05 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory F. Zoeller Ruth Johnson
Attorney General of Indiana Matthew D. Anglemeyer
Marion County Public Defender Agency
Jodi Kathryn Stein
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, May 13, 2015
Appellant-Petitioner, Court of Appeals Case No.
49A02-1411-JV-777
v. Appeal from the
Marion Superior Court
M.P., The Honorable Marilyn A. Moores,
Judge
Appellee-Respondent.
The Honorable Geoffrey A. Gaither,
Magistrate
Cause No. 49D09-1406-JD-1642
Kirsch, Judge.
[1] In a delinquency proceeding against M.P., a witness essential to the State’s case
failed to appear at two scheduled depositions. The juvenile court granted
M.P.’s request to exclude the witness’s testimony, and, thereafter, the juvenile
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court granted the State’s motion to dismiss without prejudice. The State now
appeals, asserting the following restated issue: whether the juvenile court
abused its discretion when, as a discovery sanction, it excluded the witness’s
testimony.
[2] We affirm.
Facts and Procedural History
[3] In June 2014, the State filed a petition alleging that M.P. was a delinquent child
for committing battery,1 which would be a Class A misdemeanor if committed
by an adult. The petition stemmed from an alleged altercation with N.D., who
prior to that time had been M.P.’s girlfriend. M.P. filed a notice of his intent to
rely upon self-defense. At the pre-trial hearing, M.P. requested a copy of the
police report that contained witness information, including N.D.’s address.
Over the State’s objection, the magistrate ordered that the police report be
released to M.P. Appellant’s App. at 35. The State filed a motion to reconsider
and rescind the magistrate’s discovery order, and following a hearing, the
juvenile court vacated the discovery order to produce the police report, and, on
August 8, 2014, it ordered the State to produce a redacted copy of the police
report and to make N.D. available for deposition or interview upon reasonable
notice. Id. at 56.
1
See Ind. Code § 35-42-2-1.
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[4] On that same date, counsel for M.P. arranged to take the taped statement of
N.D. on August 26, 2014, and she emailed the prosecutor with the scheduled
date of the taped statement. Id. at 72. On the following business day, August
11, M.P.’s counsel delivered a file-stamped copy of the notice and subpoena to
the State. M.P.’s counsel requested that the State provide her with proof of
service, pursuant to Indiana Trial Rule 4.1; however, the State sent the
subpoena by mail. Id. at 77. The planned August 26 taped statement was
confirmed at the August 25 pretrial hearing. Id. at 65.
[5] The next day, N.D. did not appear for her taped statement. Her explanation
was that she forgot the subpoena at home and did not know the address for the
deposition. On September 8, M.P. filed a motion to exclude N.D.’s testimony
based upon her failure to appear, and the State objected. On September 10, the
trial court set the matter for a pretrial hearing, and it scheduled the denial
hearing for September 22, 2014. At the September 17, 20142 pretrial hearing,
the juvenile court took M.P.’s motion to exclude testimony under advisement
and reset the denial from September 22 to October 21, 2014. Id. at 83.
[6] The next day, September 18, M.P.’s counsel arranged for the deposition of
N.D. to take place on October 9, 2014, and M.P.’s counsel emailed the State
2
We note that the September 17 pretrial was originally set for September 15, 2014. On September 15, the
prosecutor was present, and although M.P.’s counsel was not, another attorney from the public defender’s
office was there in her place. Witness N.D. and her mother were also present in court. M.P. moved for a
continuance, which the juvenile court granted and reset the pretrial to September 17. Appellant’s App. at 79-
81.
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with that information. The State sent N.D. a subpoena, notifying her of the
October 9 deposition. Id. at 100-02. On October 6, N.D. appeared for the
deposition, three days early, and she was informed that she had appeared on
the wrong day. On October 8, the prosecutor confirmed with M.P.’s counsel
that N.D. was aware of and “knew she needed to attend” the October 9
deposition. Id. at 89. On October 9, counsel for M.P was at the predetermined
location for the deposition, but N.D. did not appear. The prosecutor notified
M.P.’s counsel at 9:02 a.m. that the State had received word from N.D. and/or
her mother that their car had run out of gas or was unable to get them to the
deposition. The State arranged for a taxi to pick them up and get them to the
deposition, and the prosecutor notified M.P.’s counsel that it anticipated N.D.
to arrive by 10:00 a.m. M.P.’s counsel replied that the delay was not
acceptable. She later explained to the juvenile court, and asserts to this court,
that she had other legal commitments that day that precluded her from waiting,
and, further, she was ill and in pain on the day in question and later sought
medical attention.
[7] On October 10, the day after N.D. failed to appear, M.P.’s counsel filed a
second motion to exclude N.D.’s testimony. At the subsequent attorneys-only
pretrial hearing on October 14, 2014, the State maintained that there was no
deliberate conduct or bad faith on the part of the State, and, in fact, it had done
everything in its power to comply and have N.D. appear at the dates for her
taped statement and deposition. Tr. at 4-5. Therefore, the State urged,
excluding N.D.’s testimony would be an extreme, and not a proper, remedy.
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M.P. argued that for months he had repeatedly sought, but had been unable to,
obtain a statement from N.D., initially because the State would not provide a
police report with her address, and later when N.D. failed to appear for two
scheduled depositions of which she had notice. M.P. asserted that he suffered
prejudice by having his denial hearing set outside sixty days.3 Id. at 2-3, 7.
[8] The juvenile court granted M.P.’s motion to exclude N.D.’s testimony, which
effectively precluded the State’s prosecution, and the State filed a motion to
dismiss the delinquency petition without prejudice, which the juvenile court
granted. The State now appeals.
Discussion and Decision
[9] The State contends that the trial court “clearly erred” by granting M.P.’s
motion to exclude witness testimony, which was essential to the State’s
prosecution. Appellant’s Br. at 6. Trial courts have broad latitude with respect
to discovery matters, and their rulings receive great deference on appeal. Cain v.
State, 955 N.E.2d 714, 718 (Ind. 2011). We will affirm a trial court’s rulings
absent clear error and resulting prejudice. Id. As the conduct and equities will
vary with each case, we generally leave the determination of proper sanctions to
the sound discretion of the trial courts. Wright v. Miller, 989 N.E.2d 324, 330
3
M.P. was referring to what is sometimes called “the Sixty-Day Rule” found in Indiana Code section 31-37-
11-2(b), which provides, in relevant part, that when the child alleged to be delinquent is not in detention,
either a fact-finding hearing or a waiver hearing must be commenced within sixty days after the petition is
filed, excluding weekends and legal holidays. A.S. v. State, 929 N.E.2d 881, 889 (Ind. Ct. App. 2010).
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(Ind. 2013). Because of the fact-sensitive nature of discovery issues, a trial
court’s ruling is cloaked with a strong presumption of correctness. Hill v.
Fitzpatrick, 827 N.E.2d 138, 141 (Ind. Ct. App. 2005).
[10] The State contends that the exclusion of N.D.’s testimony was an extreme
remedy, and not warranted, because there was no evidence that the State
engaged in deliberate or bad faith behavior that prejudiced M.P. Therefore, it
claims, we must reverse. We recognize that in Wiseheart v. State, 491 N.E.2d
985 (Ind. 1986), where the trial court excluded four defense witnesses for failure
to disclose them prior trial, our Supreme Court had occasion to address the
exclusion of a witness as a discovery sanction, and it stated that “the primary
factors which a trial court should examine are whether the breach was
intentional or in bad faith and whether substantial prejudice has resulted.” Id.
at 988; see also Cain, 955 N.E.2d at 718-20 (where co-defendant reached last-
minute plea agreement with State and State had listed him as potential witness,
trial court was within its discretion to deny defendant’s motion to exclude co-
defendant’s testimony because there was no showing that State’s actions were
deliberate or reprehensible and that defendant was prevented from receiving fair
trial). Because the exclusion of defense witnesses raises Sixth Amendment
concerns, the Wiseheart Court then articulated a nonexclusive list of factors
from which trial courts should evaluate the exclusion of witnesses for discovery
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violations, noting that some of the factors would be inapplicable to a certain set
of facts or other factors might be relevant in a given case.4 Id. at 991.
[11] More recently, our Supreme Court observed in Wright, where the Court
reviewed the trial court’s discovery sanction in a medical malpractice action
that struck the patient’s expert witness, that the Wiseheart factors “can be a
valuable guide,” but cautioned against “a formulaic application of these
factors” as that could “deemphasize[] the general discretion of the trial court.”
Wright, 989 N.E.2d at 329. In analyzing the issue, the Wright Court observed,
Indiana’s trial courts decide over 1.5 million cases per year statewide,
and have done so consistently for the past decade. 1 Ind. Jud. Serv.
Rep. 2011: Jud. Year Rev. 97 (2012). Managing such a heavy volume
demands robust court docket management and insistence upon
compliance with the discovery rules, which are specifically intended to
minimize the need for judicial involvement.
4
Although we do not have Sixth Amendment claims before us, we nevertheless note the five Wiseheart
factors as follows:
(1) Whether the nature of defendant’s violation was trivial or substantial. The trial court should consider
when the witness first became known to defense counsel.
(2) How vital the potential witness’ testimony is to the defendant’s case. The trial court should determine the
significance of the proffered testimony to the defense. Is the testimony relevant and material to the defense or
merely cumulative?
(3) The nature of the prejudice to the State. Does the violation have a deleterious impact on the case
prepared by the State?
(4) Whether less stringent sanctions are appropriate and effective to protect the interest of both the defendant
and the State.
(5) Whether the State will be unduly surprised and prejudiced by the inclusion of the witness’ testimony
despite the available and reasonable alternative sanctions (e.g., a recess or a continuance) which can mitigate
prejudice to the State by permitting the State to interview the witnesses and conduct further investigation, if
necessary.
Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 1986).
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[12] Id. at 327. The Wright Court was clear that sanctions should not be imposed
when circumstances make sanctions unjust, but it was mindful that
[t]rial judges stand much closer than an appellate court to the currents
of litigation pending before them, and they have a correspondingly
better sense of which sanctions will adequately protect the litigants in
any given case, and likewise what sanctions are appropriate toward
maintaining its dignity, securing obedience to its process and rules,
rebuking interference with the conduct of business, and punishing
unseemly behavior[.]
Id. at 330 (internal citations and quotations omitted). While continuing to
emphasize the importance of deference to a trial court’s discovery decisions, the
Wright Court ultimately reversed the trial court’s exclusion of the patient’s
expert, because even though the patient failed to include the expert on any
witness list, the record reflected that defendants were well aware that the patient
intended to use that expert at trial and were attempting to secure a new one due
to health issues suffered by the expert. Id. at 331.
[13] The underlying purposes of the Trial Rules’ discovery provisions are to provide
for a minimum of court involvement in the discovery process and to allow for a
liberal discovery procedure. Id. at 327 (discovery rules intended to minimize
judicial involvement); Gonzalez v. Evans, 15 N.E.3d 628, 634 (Ind. Ct. App.
2014), trans. denied. However, Indiana Trial Rule 37 provides trial courts with
mechanisms to ensure compliance with trial rules and obedience to its order.
Wright, 989 N.E.2d at 327. For instance, Indiana Trial Rule 37(B) permits the
trial court to “make such orders . . . as are just,” including “prohibiting [the
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disobedient party] from introducing designated matters into evidence[.]” Id.
We have observed,
Rules 26(C), 30(D), 37, and the appellate review criteria that are used
when reviewing a trial court’s discretion or order, give the Indiana trial
court [] almost plenary power over the pre-trial and trial of a case
insofar as discovery is concerned.
Hill v. Fitzpatrick, 827 N.E.2d 138, 140 (Ind. Ct. App. 2005) (quoting 2A W.
Harvey, Indiana Practice § 30.11 at 441-442 (2000)).
[14] We are aware that, generally, the preferred remedy for a discovery violation is a
continuance or some preliminary sanction. Cain, 955 N.E.2d at 718. However,
that already happened here. Early in the proceedings, M.P. attempted to obtain
witness contact information – needed to prepare for the final fact-finding
hearing – by asking the State for the police report. The magistrate permitted the
release of it, but the State opposed that order and asked that it be rescinded. A
hearing followed, which delayed the case, and the juvenile court ordered the
State to produce a redacted police report but make N.D. available for taped
statement or deposition. On August 8, 2014, M.P. arranged for N.D.’s taped
statement to take place on August 26; notice was provided to N.D., but she did
not appear. She told the State that she forgot the subpoena at home and,
therefore, did not know where to appear for the statement. The denial hearing
date was continued, from the original date of September 22, 2014 to October
21, 2014. On September 18, M.P. scheduled the deposition of N.D. to take
place on October 9. Despite having notice, N.D. did not appear for that
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deposition either, contacting the State at the scheduled deposition time to report
that her mother’s car was out of gas or otherwise inoperable.5
[15] At the hearing on M.P.’s motion to exclude N.D.’s testimony, M.P.’s counsel
argued that M.P. had been prejudiced due to the State’s failure to present its
witness for deposition as ordered twice by the juvenile court, and because of
delays and N.D.’s failure to appear, M.P. did not receive his denial hearing
within sixty days. M.P.’s counsel said, “[T]he State wants to say that I am not
being flexible however I keep setting them, I keep showing up and they keep
not appearing,” and she queried, “[H]ow many times do we need to keep
setting these . . . and appearing and sitting there waiting.” Tr. at 2, 6. She then
added, “And you know it is common that after two no shows that witnesses are
excluded.” Id. at 6. The State responded that none of the failures to appear
were deliberate or in bad faith, and it urged the juvenile court that excluding
N.D. would not be the proper remedy. Having heard the arguments and
reviewed the pleadings, the juvenile court determined the appropriate remedy
was to exclude N.D.’s testimony. Given the great deference that we extend to
our trial court colleagues in ruling on discovery matters, and understanding the
5
We note that some portions of the record indicate that on the morning of the October 9 deposition, the
State received a telephone call from N.D.’s mother stating that the car was out of gas, Appellant’s Br. at 4, 8,
11; Appellant’s App. at 106, and that the State sent a taxi cab to transport them. However, the hearing
transcript indicates that the State went looking for N.D.: “[T]heir car broke down, they ran out of gas and
couldn’t get here. When the State went down there, she was at her neighbor’s house attempting to call the
State at that time and called the State’s office number.” Tr. at 4; see also id. at 2 (public defender stating that
prosecutor told her that because there was no answer on the phone when he called, he and detective went to
N.D.’s house but she was not there).
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necessity of requiring parties to follow trial court’s deadlines and orders, we
cannot say that the decision to exclude N.D.’s testimony was clearly against the
logic and effect of the facts and circumstances, and we find no abuse of
discretion occurred in this case. See Hatfield v. Edward J. DeBartolo Corp., 676
N.E.2d 395, 400 (Ind. Ct. App. 1997) (no abuse of discretion where trial court
dismissed case after witness failed to appear at two noticed depositions), trans.
denied; see also Wright, 989 N.E.2d at 332 (David, J. dissenting) (rejecting
formulaic adherence to Wiseheart factors and finding no abuse of discretion in
trial court’s decision to, as discovery sanction, exclude plaintiff’s expert
witness).
[16] Even assuming that the juvenile court’s decision to exclude N.D.’s testimony
constituted error, which effectively precluded prosecution, the ensuing dismissal
was without prejudice. Appellant’s App. at 115. Therefore, the State may refile
its delinquency petition, if desired. See e.g., Ind. Code § 35-34-1-13 (granting of
prosecutor’s motion to dismiss does not bar subsequent trial of defendant on
offense charged if defendant’s substantial rights not violated); State v. I.T., 4
N.E.3d 1139, 1141 (Ind. 2014) (noting that trial court gave State ten days to
refile delinquency petition, after trial court had granted juvenile’s motion to
dismiss delinquency petition because State had relied upon statements that
juvenile had made to therapist during court-ordered treatment, but State chose
to appeal); Hollowell v. State, 773 N.E.2d 326, 331 (Ind. Ct. App. 2002) (after
having previously dismissed charges due to missing essential witness, State
refiled information with additional charges, but defendant was not prejudiced
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and not entitled to dismissal of charges). Accordingly, in this case, any error in
excluding N.D.’s testimony was harmless.
[17] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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