Everling v. State Of Ind.

• Decision Date: 08 July 2010
• Docket Number: No. 48S05-0911-CR-506.,48S05-0911-CR-506.
• Citation: 929 N.E.2d 1281
• Parties: Steven W. EVERLING, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

929 N.E.2d 1281

Steven W. EVERLING, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).

No. 48S05-0911-CR-506.

Supreme Court of Indiana.

July 8, 2010.

Jason A. Childers, Anderson, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 48A05-0903-CR-153

SHEPARD, Chief Justice.

A jury found appellant Steven W. Everling guilty of three counts of child molesting and two counts of sexual misconduct with a minor. Although Everling raises several grounds for reversal, we address only whether the judge's conduct during the trial deprived him of a fair trial. Because we conclude that the court's overall conduct evidenced partiality, we reverse and remand for a new trial.

Facts and Procedural History

Steven Everling's stepdaughter K.P. accused him of fondling her and forcing her into sexual intercourse and oral sex. On February 25, 2008, the State initially charged Everling with two counts of class A felony child molesting and two counts of class B felony sexual misconduct with a minor.

On February 29, 2008, the court ordered the State to provide all discoverable material within ten days of defense counsel's appearance, which occurred on March 24. After the charging information, which listed twenty witnesses, the first discovery document in the appendix was the State's first notice of additional witnesses and an exhibit. The State filed subsequent notices of additional witnesses on June 19, July 1, and October 14; the last of these was two weeks before trial. None of the State's witness lists included more information than a job title.

The State also amended its information on June 13 and July 15, and on October 30, after the jury had been sworn. The final charging information included three counts of class A felony child molesting and two counts of class B felony sexual misconduct with a minor. The molestation charges focused on Everling's fondling K.P threatening to kill her, having sexual intercourse with her before her fourteenth birthday, and performing deviate sexual conduct upon her.¹ The charges of sexual misconduct with a minor rested on his having intercourse with K.P. and having her perform oral sex between her fourteenth and sixteenth birthdays.²

On April 17, 2008, Everling moved for a continuance of the trial without the State's objection, which the court denied. About a month later, the State moved to continue the trial a week before it was to start, and the court granted the motion. Everling's lawyer experienced a flare up of his Crohn's Disease, so on June 19, 2008, he moved for a further continuance and attached a doctor's note. The court granted this motion. On July 18, Everling again moved to continue, which the trial court granted on the day the trial was scheduled to begin; it appears that all concerned expected this ruling, as neither Everling nor his counsel appeared in court that day.

On June 20, 2008, four days before the new trial date, the prosecution moved the court to order Everling to produce his witness and exhibit list, including synopses “of what each witness shall say, along with a copy of each exhibit the defense intends to offer at trial attached to same.” (App. at 224, 251-52.) There was never a comparable order that the State provide detail on its witness lists.

Everling did not submit a witness and exhibit list until October 23, 2008, five days before a trial finally occurred. The next day the court granted a State motion that had been pending since July 15, 2008, to exclude Everling from “calling any witnesses other than the Defendant, or introducing any exhibits, other than those the State has provided.” (App. at 117, 188.)

The defense witnesses barred by this order mostly fell into two categories: alibi witnesses who would testify that Everling generally was not at home during the mornings as K.P. alleged, and witnesses who would describe K.P.'s reputation for untruthfulness (some of whom the prosecution also listed, including one who testified). (App. at 120; alibi-Mitchell Slayton, Tr. at 46-47; Josh Pete, Tr. at 46-47; Rob Price, Tr. at 48; Angie Wycoff, Tr. at 49; Josh Reed, Tr. at 52; Kay Lark, Tr. at 54; Steven Everling, Jr., Tr. at 56; K.P.'s untruthfulness-Gary Davis, Tr. at 47-48; Nora Henson, Tr. at 49; Amber Henson, Tr. at 49; Pat and Karen Beeman, Tr. at 51; Kelly Davis, Tr. at 51; Heather McClain, Tr. at 52-54; teachers Vickie Blair, Karen Able, Joan Mercer, and Linda Personette, Tr. at 57-58; and Tami Biele, Tr. at 45-46, 82-83; also called by prosecution, App. at 233, 235, but excluded-Frankton-Lapel Schools record-keeper, Tr. at 55; Elwood Community Schools record-keeper; Dawn Parish, Tr. at 52; also called by the prosecution and admitted-Dutch Parish, Tr. at 171-88.)

Despite its blanket exclusion, the court revisited Everling's witness list at the beginning of trial and considered each of the witnesses in turn. (Tr. at 33-59.) It excluded the alibi witnesses because no notice of any alibi witnesses had been filed. The court excluded those who would testify about K.P.'s reputation because the State had not been informed of any character witnesses.

The State intended to introduce photographs of K.P. taken in July 2008 showing injuries to her hymen and vagina. In September, the State sent Everling's counsel a letter informing him of this examination. The photographs were too dark to see anything, and the deputy prosecutor attached the wrong medical records. Replacement photographs were taken on October 9, 2008. Shortly after this, the State sent Everling's counsel Zaki Ali the usable photographs and the correct medical records. At about this time, Ali began making efforts to call medical witnesses to refute K.P.'s testimony. Once the court granted the State's broad motion to exclude, however, Ali ended these efforts.

One such medical witness for the defense was Tami Biele, a nurse practitioner who was to testify that K.P. did not mention Everling's behavior when he and K.P.'s mother brought her to the doctor after she had unprotected sex with a partner about whom the parents knew. (Tr. at 82.) Biele had been listed on Everling's witness list. Biele's employer moved to quash a subpoena for its records of the event on health privacy grounds, and the court granted the motion.

On the first day of trial, Judge Spencer made the attorneys aware of Redding v. State, 844 N.E.2d 1067 (Ind.Ct.App.2006), and an unspecified Seventh Circuit opinion, to the effect that the rape shield statute cannot be used to deny a defendant a fair trial. Based on this information, the attorneys met that evening with Biele to explore whether her testimony would be necessary under these precedents.

That same day Everling's attorney asked Dr. Philip Merk, a physician he had previously contacted, to submit his curriculum vitae, which he faxed the morning the trial was to begin. (Tr. at 118.) Ali handed the deputy prosecutor a copy that morning and moved the court to permit Everling's witness. Dr. Merk was to testify based on the photographs that “there is no injury to [K.P.'s] hymen area or to her vagina.” (Tr. at 118.) Although the State knew Everling was planning to call medical witnesses, this was the first time the defense named Merk. The State filed a motion to exclude Merk the same day.

In the preliminary stages of the trial, the State moved in limine to limit cross-examination to the scope of direct examination, which the court granted. Ali made no objection to this. At the end of the October 28 preliminary hearing, Ali, who had earlier proposed a January 2009 date for trial, again moved to continue the proceedings, which the court denied.

The next day, the court indicated that because “the physical condition of the complaining witness has been known to be an issue in the case for quite some time,” yet Everling had not listed Merk, it would not allow him to testify. (App. at 337.) During trial, Ali again made an offer of proof to the effect that Merk examined the photographs taken by Holly Renz and concluded that K.P. had not suffered any injury to her hymen or vaginal area. (App. at 386-87.) He also pointed out that the State had not provided the photographs until twelve days before trial. The court reiterated that Merk had not examined K.P. but had only seen photographs.

More than a month before all this, on September 23, 2008, Ali moved for a change of judge in five criminal proceedings in which he was defense counsel because he had filed a complaint with the Indiana Commission on Judicial Qualifications. The motion for change of judge alleged that Judge Spencer “cannot be fair and impartial under the Judicial Cannons [sic] and shall remove himself from all of counsel's cases.” (App. at 308.) The court denied the motion, stating, “There's nothing to discuss. Your belief that I should disqualify myself because you filed a complaint against me is incorrect. The hearing is closed. Thank you, gentlemen.” ³ (App. at 5, 310.)

Ali then petitioned this Court for writ of mandamus and prohibition, asking that we direct Judge Spencer to grant his request for a change of judge. (App. at 105.) We denied Ali's request for an emergency writ and, after further briefing, we denied the remaining requests. (App. at 35, 105.)

Throughout all these proceedings and during the trial, Judge Spencer made several comments regarding Ali in open court, outside the presence of the jury. He alluded to previous problems with Ali and said, “I'll tell you right now if you do that, you're gonna spend the night in jail.... But editorial comments from you, sir, suggesting that somehow we're cheating this man out of a fair trial because you try to offer irrelevant evidence is just not gonna fly this time. That plane just crashed. Don't try it.” (App. at 325-26.) In this same dialogue, Judge Spencer stated, “We never...