      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

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015         Page 1 of 12
      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.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015   Page 2 of 12
[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.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015                 Page 3 of 12
      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.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015   Page 4 of 12
      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).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015              Page 5 of 12
       (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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015   Page 6 of 12
       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).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015                  Page 7 of 12
[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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015   Page 8 of 12
       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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015   Page 9 of 12
       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).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015                    Page 10 of 12
       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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015   Page 11 of 12
       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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-JV-777 | May 13, 2015   Page 12 of 12
