ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NANCY A. MCCASLIN KAREN M. FREEMAN-WILSON
McCaslin & McCaslin Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
S. T., )
) Supreme Court Cause Number
Appellant-Respondent, ) 20S03-0010-JV-606
STATE OF INDIANA, ) Court of Appeals Cause Number
APPEAL FROM THE ELKHART CIRCUIT COURT
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
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.
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.
S.T. makes three claims of ineffective assistance of counsel. We address two
of them, which may be consolidated and recast as trial counsels failure to
object to the States 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 counsels performance was deficient.
Strickland, 466 U.S. at 687. This requires showing that counsels 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 counsels
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 counsels
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 partys 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
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 courts 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 defendants
breach has been purposeful or intentional or unless substantial or irreparable prejudice would
result to the State.). Indeed, in light of a defendants right to
compulsory process under the federal and state constitutions,
See footnote there is a strong presumption
in favor of allowing the testimony of even late-disclosed witnesses.
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 counsels 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 courts grant of the States
motion to exclude the witnesses was error. Accordingly, a timely defense objection
to the motion would have been properly granted. We conclude therefore that
counsels conduct fell below an objective standard of reasonableness in failing to object
to the States motion. We conclude also that S.T. was prejudiced by
counsels 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
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 friends 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 defendants 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.
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.
See U.S. Const. amend. VI; Ind. Const. art I, § 13.