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

MEMORANDUM DECISION

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

Gregory F. Zoeller

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Ruth Johnson

Matthew D. Anglemeyer

Marion County Public Defender Agency

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Petitioner,

v.

M.P.,

Appellee-Respondent.

May 13, 2015

Court of Appeals Case No.

49A02-1411-JV-777

Appeal from the 

Marion Superior Court

The Honorable Marilyn A. Moores, 

Judge

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 
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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.
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[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. 
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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. 
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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).
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(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 lastminute 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 codefendant’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 
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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).
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[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
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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 
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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).
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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 
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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.