ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NANCY A. MCCASLIN KAREN M. FREEMAN-WILSON
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
EILEEN EUZEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
S. T., )
) Supreme Court Cause Number
Appellant-Respondent, ) 20S03-0010-JV-606
)
v. )
)
STATE OF INDIANA, ) Court of Appeals Cause Number
) 20A03-9912-JV-480
Appellee-Petitioner. )
APPEAL FROM THE ELKHART CIRCUIT COURT
JUVENILE DIVISION
The Honorable Terry C. Shewmaker, Judge
The Honorable David C. Bonfiglio, Magistrate
Cause No. 20C01-9809-JD-476
ON PETITION TO TRANSFER
March 20, 2002
RUCKER, Justice
Case Summary
S.T. was adjudicated a juvenile delinquent for the illegal
consumption of alcoholic beverages, a Class C misdemeanor, and for
committing acts that would have been criminal offenses if committed by an
adult, namely: battery as a Class D felony and resisting law enforcement as
a Class A misdemeanor. He appealed the adjudication contending he was
denied the effective assistance of counsel. A divided panel of the Court
of Appeals affirmed the juvenile court judgment. S.T. v. State, 733 N.E.2d
937 (Ind. Ct. App. 2000). Having previously granted transfer, we now
reverse the judgment of the juvenile court.
Facts
In the early afternoon hours of June 29, 1999, two Elkhart police
officers on bike patrol spotted a couple of young men, one of whom appeared
to be carrying a can of beer. The officers stopped the young men, confirmed
that one of them indeed was holding a can of beer, and noted an odor of
alcohol on both. When the young man with the beer admitted that he was
only seventeen years old, the officers arrested him for illegal consumption
of alcohol. During a search incident to the arrest, the officers discovered
a handgun and at that point ordered both young men to lie on the ground.
The young man who initially had not been placed under arrest complied at
first but then changed his mind. He scuffled with the officers and then
fled the scene.
At the station, both officers looked through several photo arrays but
were unable to identify a picture of the young man who had fled. The
officers then sought to learn the names of some of the acquaintances of the
young man who had been arrested. A few days later S.T.’s name surfaced
and, when shown a single photograph of S.T., one of the officers said that
he “immediately recognized” S.T. as the fleeing suspect, and the other
officer said that he was “pretty sure” that S.T. was their man. R. at 31,
32. Sixteen-year-old S.T. was subsequently arrested and charged as a
juvenile delinquent.
A fact-finding hearing was conducted September 10, 1999. Before
evidence was presented, defense counsel declared that she intended to call
three witnesses: S.T., S.T.’s mother, and L.C., a friend of S.T. The
State objected and moved to prohibit the testimony of L.C. and S.T.’s
mother on grounds that counsel had failed to submit a witness list ten days
before trial as required by Elkhart County Local Trial Rule 13. The trial
court agreed, granted the motion, and excluded the witnesses. After the
conclusion of the hearing, the trial court adjudicated S.T. a delinquent.
He appealed arguing ineffective assistance of counsel, and a divided panel
of the Court of Appeals affirmed. S.T. sought transfer, which we
previously granted. We now reverse the judgment of the juvenile court and
remand this cause for further proceedings.
Discussion
S.T. makes three claims of ineffective assistance of counsel. We
address two of them, which may be consolidated and recast as trial
counsel’s failure to object to the State’s motion to exclude defense
witnesses. A defendant claiming ineffective assistance of counsel must
establish the two components set forth in Strickland v. Washington, 466
U.S. 668 (1984). Williams v. Taylor, 529 U.S. 362, 390-91 (2000). First,
a defendant must show that counsel’s performance was deficient.
Strickland, 466 U.S. at 687. This requires showing that counsel’s
representation fell below an objective standard of reasonableness and that
counsel made errors so serious that counsel was not functioning as
“counsel” guaranteed to the defendant by the Sixth Amendment. Id. Second,
a defendant must show that the deficient performance prejudiced the
defense. Id. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is
reliable. Id. To establish prejudice, a defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would be different. Id. at 694. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. Id. In order to establish ineffective assistance of counsel
based on the failure to object, a defendant must prove that an objection
would have been sustained if made and that the defendant was prejudiced by
the failure. Timberlake v. State, 690 N.E.2d 243, 259 (Ind. 1997).
Elkhart County Local Trial Rule 13 provides in pertinent part:
Ten days before the commencement of the trial of any criminal
case or a civil case which is a ‘first or second setting’ . . . [e]ach
party shall provide the court and each opposing counsel a final
written list of names and addresses of that party’s witnesses, as well
as a written list of exhibits.
If without just cause the exhibits and lists are not exchanged,
stipulated to, or provided, then the exhibits or witnesses shall not
be allowed to be used during the trial.
App. for Br. of Appellant at 1. Trial courts in the State of Indiana are
permitted to make and amend rules governing their practice provided the
rules are not inconsistent with the Indiana Rules of Trial Procedure. See
Ind. Trial Rule 81. These procedural rules are intended to standardize the
practice within the court, facilitate the effective flow of information,
and enable the court to rule on the merits of the case. Meredith v. State,
679 N.E.2d 1309, 1310 (Ind. 1997). As a general proposition, once made,
all litigants, as well as the court, are bound by the rules. However, a
court should not blindly adhere to all of its rules. Id. at 1311. As we
have observed:
Although our procedural rules are extremely important, it must be kept
in mind that they are merely a means for achieving the ultimate end of
orderly and speedy justice. We must examine our technical rules
closely when it appears that invoking them would defeat justice;
otherwise we become slaves to the technicalities themselves and they
acquire the position of being the ends instead of the means.
Id. (quoting American States Ins. Co. v. State ex rel. Jennings, 258 Ind.
637, 283 N.E.2d 529, 531 (1972)).
There is no question that trial courts have the discretion to exclude
belatedly disclosed witnesses. In that sense, the local trial rule in this
case generally underscores the court’s authority. However, that discretion
is limited to instances where there is evidence of bad faith on the part of
counsel or a showing of substantial prejudice to the State. Williams v.
State, 714 N.E.2d 644, 651 (Ind. 1999); Cook v. State, 675 N.E.2d 687, 691
(Ind. 1996); see also Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 1986)
(“The most extreme sanction of witness exclusion should not be employed
unless the defendant’s breach has been purposeful or intentional or unless
substantial or irreparable prejudice would result to the State.”). Indeed,
in light of a defendant’s right to compulsory process under the federal and
state constitutions,[1] there is a strong presumption in favor of allowing
the testimony of even late-disclosed witnesses. Williams, 714 N.E.2d at
651. Where a party fails to disclose a witness
timely, courts generally remedy the situation by providing a continuance
rather than disallowing the testimony. Fields v. State, 679 N.E.2d 1315,
1319 (Ind. 1997).
In this case there is no evidence that counsel acted in bad faith in
failing to file a timely witness list. And neither before the trial court
nor on appellate review does the State allege that it was prejudiced by
counsel’s conduct. Therefore, even though the local rule in this case may
have suggested otherwise, S.T. should have been allowed to present the
testimony of his two witnesses. The trial court’s grant of the State’s
motion to exclude the witnesses was error. Accordingly, a timely defense
objection to the motion would have been properly granted. We conclude
therefore that counsel’s conduct fell below an objective standard of
reasonableness in failing to object to the State’s motion. We conclude
also that S.T. was prejudiced by counsel’s conduct. Compare D.D.K. v.
State, 750 N.E.2d 885, 888 (Ind. Ct. App. 2001) (finding harmless error in
the trial not allowing defense witnesses to testify).
The officers testified for the State and identified S.T. as the young
man with whom they struggled and who fled the area. After the State
rested, S.T. took the stand and testified that he had been home asleep at
the time of the incident. According to S.T., he remained asleep until his
mother woke him to take a telephone call from L.C. S.T.’s mother was
prepared to testify that S.T. indeed was sleeping on the sofa when she
awakened him to take a friend’s call. And L.C., the friend who called
S.T., was prepared to testify that he spoke with S.T. at the time he said
he received the call. In his dissenting opinion, Judge Sullivan observed
that although L.C. and S.T.’s mother were not exactly objective and
detached witnesses, they nonetheless “would have added a different
perspective to the defendant’s version of events and reinforced his
account, and therefore, the exclusion of the witnesses unnecessarily
prejudiced the defendant.” S.T., 733 N.E.2d at 944 (Sullivan, J.,
dissenting). We agree.
Conclusion
We reverse the judgment of the trial court. This cause is remanded
for further proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] See U.S. Const. amend. VI; Ind. Const. art I, § 13.