ST v. State





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.