ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
NANCY A. McCASLIN STEVE CARTER
McCaslin & McCaslin Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
vs. ) No. 20A03-0101-JV-18
STATE OF INDIANA, )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
The Honorable David C. Bonfiglio, Magistrate
Cause No. 20C01-9908-JD-418
July 6, 2001
OPINION - FOR PUBLICATION
D.D.K. appeals an adjudication finding him to be a delinquent child for committing
See footnote an act which would be a Class A misdemeanor if committed by
an adult. D.D.K. raises two issues for our review:
I. Whether the trial court erred in excluding particular witness testimony.
II. Whether D.D.K. received ineffective assistance of counsel.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the courts delinquency determination are that on June
3, 1999, R.B. was walking home from West Side Middle School in Elkhart,
Indiana, with his stepbrother and stepsister, when the three encountered a group of
students, including D.D.K. Because of a prior confrontation between D.D.K. and R.B.,
R.B.s stepbrother and stepsister ran into a nearby drug store, while R.B. fled
on foot. When R.B. eventually stopped, D.D.K. and several other students crowded
around him, while still others observed from across the street. D.D.K. struck
R.B. in the jaw knocking him to the sidewalk. One or more of
the students surrounding R.B. continued to punch and kick him, until authorities were
called and an ambulance took R.B. to the hospital.
The State filed a petition charging D.D.K. with Class A misdemeanor battery.
D.D.K. denied the allegations and the court scheduled a denial hearing for August
18, 1999. As required by local rule, D.D.K. filed a witness list
ten days before the hearing. On August 16, D.D.K. filed a supplemental
witness list identifying his aunt and mother as additional defense witnesses.
When defense counsel called D.D.K.s aunt to testify at the hearing, the State
objected on the basis that the defense had not disclosed her as a
witness ten days prior to trial as required by local rule. The
trial court agreed and excluded the testimony of both D.D.K.s aunt and mother
for failure to timely disclose them as witnesses. During the exchange between
counsel and the court, the State noted that it further objected to the
testimony of both the aunt and mother, whose testimony was intended to show
that D.D.K. was not present at the brawl, because D.D.K. did not file
a notice of alibi defense as required by statute.
The trial court issued an order finding that D.D.K. committed the offense as
charged and later entered a dispositional order that adjudicated D.D.K. a delinquent.
D.D.K. now appeals.
DISCUSSION AND DECISION
I. Exclusion of Witnesses
D.D.K. contends that the trial court erred in excluding the testimony of his
mother and aunt for his failure to comply with the local rule concerning
disclosure of witnesses.
See Elkhart County Local Trial Rule 13. Trial
courts in the State of Indiana may establish rules for their own governance,
so long as the rules are not inconsistent with rules prescribed by the
Indiana Supreme Court or by statute. IC 34-8-1-4; Ind. Trial Rule 81.
Generally, these rules are procedural and are intended to standardize the practice
within that court, to facilitate the effective flow of information, and to enable
the court to rule on the merits of the case. Meredith v.
State, 679 N.E.2d 1309, 1310 (Ind. 1997). It is true that
once made, all litigants and the court are bound by the rules of
the court; however, a court should not blindly adhere to all its rules.
Id. at 1311.
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, 640, 283 N.E.2d 529, 531 (1972)).
Trial courts retain the discretion to exclude a belatedly disclosed witness when 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), cert. denied 528 U.S. 1170, 120 S. Ct. 1195, 145 L.
Ed. 2d 1099 (2000); Cook v. State, 675 N.E.2d 687, 691 (Ind. 1996);
Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 1986) (most extreme sanction of
witness exclusion should not be employed unless defendants breach has been purposeful or
intentional or unless substantial or irreparable prejudice would result to State). In
light of a defendants right to compulsory process under the federal and state
constitutions, there is a strong presumption to allow the testimony of even belatedly-disclosed
witnesses. Williams, 714 N.E.2d at 651 (citing U.S. Const. amend. 6;
Ind. Const. Art. I, § 13). Generally, a continuance rather
than exclusion is the appropriate remedy in this situation. Id. See
also Fields v. State, 679 N.E.2d 1315, 1319 (Ind. 1997) (although court allowed
States witness to testify even though State did not disclose her name until
day of appearance, court noted that where a party fails to disclose witness,
courts generally remedy situation by providing continuance rather than disallowing testimony).
In this case, D.D.K.s counsel explained that the two witnesses were inadvertently omitted
from the August 8 witness list due to clerical error, which, when discovered,
was promptly addressed with the filing of the supplemental witness list on August
16. Defense counsel also made an offer of proof, providing the general
substance of the witnesses anticipated testimony, namely that D.D.K. was not present at
the fight involving R.B.
The State did not allege, nor do we find, any evidence of deliberate
conduct or bad faith on D.D.K.s part in failing to timely disclose the
subject witnesses to the State. Thus, this issue turns on whether permitting
the testimony would have been substantially prejudicial to the State. Because of
the late disclosure, the State advised the court that it was not able
to check criminal records, noting that the aunt was not listed on the
police report and was not otherwise known or anticipated. Although the State
thereby identified some degree of inconvenience stemming from D.D.K.s untimely disclosure, we do
not find that it rises to the level of substantial prejudice. The
trial court should have allowed the two witnesses to testify after giving the
State a recess, or if necessary a continuance, to obtain records on the
witnesses and speak with them.
See Williams, 714 N.E.2d at 652 (where
defense presented undisclosed witness on second of three days of trial, error for
trial court to exclude her testimony when defense investigator had just received a
call from her on previous day). Under the present circumstances, the most
extreme sanction of witness exclusion could have been avoided.
Nevertheless, we find that trial court error, if any, was harmless. Here,
D.D.K. never filed a motion to present an alibi defense pursuant to IC
35-36-4-1(2), which requires a defendant to inform the trial court in writing of
defendants intention to offer an alibi defense to a misdemeanor charge. When
a defendant fails to file a notice of alibi in accordance with IC
35-36-4-1, the trial court shall exclude any alibi evidence offered by the defendant.
Adkins v. State, 532 N.E.2d 6, 8 (Ind. 1989) (emphasis added).
See also IC 35-36-4-3(b) (if defendant failed to file a statement of alibi,
and does not show good cause, court shall exclude evidence offered to establish
alibi). In this case, because no notice of alibi was ever filed,
nor good cause shown for such failure, D.D.K.s counsel would have been prohibited
from presenting any alibi testimony, other than defendants own testimony, which was not
presented in this case. Lee v. State, 694 N.E.2d 719, 722 (Ind.
1998), cert. denied 525 U.S. 1023, 119 S. Ct. 554, 142 L. Ed.
2d 461 (1998). Thus, even if D.D.K.s counsel had timely disclosed the
mother and aunt as witnesses, the trial court would have been justified in
excluding their testimonies. Accordingly, we find no error in the courts exclusion
II. Ineffective Assistance of Counsel
D.D.K. asserts that his counsel was ineffective in essentially three respects, for failing
to: (1) timely file the witness list that included the names of his
mother and aunt; (2) make a sufficient offer of proof concerning the testimony
of those witnesses; and (3) file a notice of alibi defense. To
succeed upon a claim of ineffective assistance of counsel, it must be shown
that deficient performance by counsel has prejudiced the defendant. Jones v. State,
569 N.E.2d 975, 982 (Ind. Ct. App. 1991) (citing Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
A defendant must overcome with strong and compelling evidence the presumption that his
counsel was competent. Id. A fair trial is denied when a
conviction is the result of a breakdown in the adversarial process that renders
the result unreliable, and a defendant must show that but for counsels errors,
there was a reasonable probability that the result would have been different.
Id. Isolated poor strategy, inexperience or bad tactics do not necessarily amount
to ineffective assistance of counsel. Id.
We have already determined, above, that regardless of whether counsel had timely filed
the complete witness list that included D.D.K.s mother and aunt, the trial court
would have excluded the testimony due the absence of a filed alibi notice.
That is, even if counsel had listed the two witnesses in a timely
fashion, there is no reasonable likelihood that the outcome of the trial would
have been different. Therefore, defendant's ineffective assistance of counsel claim on this
We also described the offer of proof made by D.D.K.s counsel and conclude
that the offer of proof sufficiently informed the trial court of the expected
testimonies. See Herrera v. State, 679 N.E.2d 1322, 1325 (Ind. 1997) (offer
of proof is required so that trial and appellate court can determine admissibility
of testimony and potential for prejudice if evidence is excluded). Because counsels
offer of proof was adequate, and his performance was reasonable, D.D.K.s claim of
ineffective assistance of counsel on this basis also fails.
Lastly, we address the claim that D.D.K.s trial counsel was ineffective for his
failure to file the statement of intention to offer an alibi defense. The
failure to present an alibi defense is not necessarily ineffective assistance of counsel.
Jones, 569 N.E.2d at 982-83 (citing Zeilinga v. State, 555 N.E.2d 471
(Ind. 1990); Miller v. State, 543 N.E.2d 639 (Ind. 1989); Smith v. State,
511 N.E.2d 1042 (Ind. 1987)). In Jones, this court found that counsels
failure to file a notice of alibi, which prevented defendant from offering alibi
evidence at trial, did not amount to ineffective assistance of counsel. In
that case, trial counsel indicated that Joness prospective alibi witness was a primary
witness against Jones in another case, and, therefore, trial counsel was unable to
talk to that witness until shortly before trial. The court thus
found that it cannot fault trial counsel for not pursuing that potential witness.
Id. at 983. Furthermore, the record in Jones revealed strategic reasons
why counsel may have chosen not to use certain witnesses.
In contrast, nothing in the Record before us reveals why D.D.K.s trial counsel
did not file a notice of intent to pursue an alibi defense, whether
for tactical reasons, practical reasons, or otherwise. It is this type of
claimed error that our supreme court has characterized as a hybrid contention, consisting
of an act or omission on the record that is perhaps within the
range of acceptable tactical choices counsel might have made, but in the particular
instance is claimed to be made due . . . to some other
egregious failure rising to the level of deficient attorney performance. Woods v.
State, 701 N.E.2d 1208, 1212 (Ind. 1998), cert. denied 528 U.S. 861, 120
S. Ct. 150, 145 L. Ed. 2d 128 (1999). Evaluation of the
claimed error requires a showing to rebut the presumption of counsel competence.
The reasoning of trial counsel is sometimes apparent from the trial record.
However, in assessing hybrid contentions it is often necessary for an additional record
to be developed to show the reason for an act or omission that
appears in the trial record. Id. at 1212-13. Such is the
case here, where an evidentiary hearing is needed in order to evaluate the
reasons for counsels alleged error, namely the failure to file the alibi notice,
and the likelihood that the error, if any, affected the result. This
court has no ability to engage in fact-finding or take new evidence.
See Brewster v. State, 697 N.E.2d 95, 96 (Ind. Ct. App. 1998) (not
proper function of appellate court to receive and weigh evidence).
In these circumstances, the proper procedure, which has become known as the Davis/Hatton
procedure, is to request that the appeal be suspended or terminated so that
a more thorough record may be developed through post-conviction proceedings. See Lee,
694 N.E.2d at 721 n.6 (citing Davis v. State, 267 Ind. 152, 156,
368 N.E.2d 1149, 1151 (1977) and Hatton v. State, 626 N.E.2d 442, 442
(Ind. 1993)). In Lee, the defendant asserted that his trial counsel was
ineffective for not presenting witnesses who would have corroborated his alibi defense, arguing
that if counsel had done so, the result would have been different.
Id. at 721. Our supreme court rejected Lees claim, which was not
supported by any testimony from trial counsel or the identification of any alibi
witnesses, and affirmed his convictions. However, it expressly noted the availability of
the Davis/Hatton procedure, suggesting that a Davis/Hatton request may have been appropriate under
circumstances like this case where the claim asserted arguably requires a certain level
of fact finding[.] Id. at 721 n.6.
Similarly, here, with the absence of a Davis/Hatton request, and D.D.K.s failure to
demonstrate that trial counsel was ineffective under the two-pronged Strickland test, D.D.K.s claim
of ineffectiveness of counsel fails.
See footnote [W]e presume that counsel rendered adequate assistance
and find nothing to rebut the application of that presumption here.
SHARPNACK, C.J., and MATTINGLY-MAY, J., concur.
See IC 35-42-2-1.
In his offer of proof, counsel elaborated by stating that the mother
and aunts testimonies would be in accord with another witness who had already
testified. The witness to whom counsel refers was another student who had
testified that D.D.K. did not walk home that day, but rather was on
the bus. Thus, although counsel did not expressly state that the mother and
aunt would testify that D.D.K. was on the bus, this proposition is implied
by his reference to the prior witness.
Footnote: Because a notice of alibi was never filed, trial counsel would have
been prohibited from presenting alibi testimony, other than defendants own testimony.
694 N.E.2d at 721 n.4. However, Lee did not allege that counsel
was ineffective for failure to file the notice, and the court proceeded to
consider Lees claimed error for failure to present alibi witnesses. Id.
We further observe that D.D.K. is precluded from seeking post-conviction relief on
this basis. Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999) (ineffective
assistance of trial counsel claim foreclosed in post-conviction proceedings if raised on direct
appeal); Woods, 701 N.E.2d 1208, 1220 (if ineffective assistance of trial counsel is
raised on direct appeal by Davis petition or otherwise, issue will be foreclosed
from collateral review).