SHEPARD, J.
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.
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The conduct to which Everling points as showing the court’s partiality can be categorized as comments to counsel, comments in front of the jury, uneven tolerance of late filings, and erroneous rulings. Everling asserts that while Judge Spencer’s individual actions may not raise an issue of partiality separately, “when looked at as a whole, it becomes clear that the Trial Court lacked impartiality in its treatment of Mr. Ali and Steven’s case as a whole.” (Appellant’s Br. at 21.) The State responds that the criticisms of Everling’s attorney showed no personal bias against either the defendant or counsel and that the court’s rulings were within its discretion. (Appellee’s Br. at 15.) It characterizes any questionable conduct as “isolated incidents” and maintains that Judge Spencer’s criticisms of “Mr. Ali’s tactics certainly do not show a personal bias against [Everling].” (Appellee’s Br. at 15–16.)
Judge Spencer made the most damaging comments outside the presence of the jury. The weightiest of these is the comment that Ali had done unethical things in court. (App. at 383; Tr. at 394.) The State again characterizes these comments as isolated and states that they communicate the court’s conclusion that “some of defense counsel’s tactics in this proceeding and others [were] problematic.” (Appellee’s Br. at 15.)
Wishing that it were otherwise, we conclude that taken together, Judge Spencer’s comments and procedural rulings demonstrate a lack of impartiality.
As for comments in front of the jury, Everling claims that the comment that Ali should not have agreed to the limitation of cross-examination gave the jury the impression that Ali “was not properly representing Steven and that evidence was being kept from the jury.” (Appellant’s Br. at 18.) Regarding the comments about knife fights, the State responds that Everling did not suffer prejudice from these because a knife or a gun is a deadly weapon under Indiana law, so the jury would convict him of the class A felony child molesting count in any case. (Appellee’s Br. at 16.) What matters here is not the legal question but the general demeanor taken with defense counsel. These comments were adversarial if not condescending, and they certainly communicated to the jury that Ali was a less than competent attorney. They were improper and most likely gave the jury an unfavorable impression of the defense.
Everling claims that Judge Spencer’s mistaken statement that Everling keeping K.P. home from school was not in dispute invaded the jury’s role. (Appellant’s Br. at 20.) The State argues this did not show bias and that whether Everling was the only reason K.P. ever was truant is irrelevant to whether he ever kept her home. (Appellee’s Br. at 17.) Again, this comment was undeniably mistaken. Had it been the only negative comment made by Judge Spencer, it may not have been prejudicial. Because it was one of several, however, it added to the overall effect of the court’s unnecessary commentary.
Everling also points out that the court regularly assisted the prosecution in making and responding to objections. (Appellant’s Br. at 19–20, citing App. at 374–75, 384, 388–89, 406, 461–62.) The State characterizes these as isolated incidents ―clarifying the State’s objections‖ and argues they did not show bias. (Appellee’s Br. at 17.) While the court’s interventions may have made the proceedings somewhat more efficient, their context and one-sidedness convince us they were improper and gave an impression of partiality.
We cannot ignore the cumulative effect of disparaging comments throughout the course of proceedings, both in front of and away from the jury, simply because each of them would otherwise not suffice to reverse. The State does not persuade us that these numerous incidents were each “isolated incidents.” The court’s comments reveal a prejudice against Ali and his client.
Everling further claims that the court’s treatment of witnesses was inconsistent and shows bias. (Appellant’s Br. at 16.) The State points out that Everling ignored the court’s orders to submit witness and exhibit lists, arguing that its amended witness lists and information exhibited good faith on its part calling for different treatment. (Appellee’s Br. at 15.)
Everling attempted to call twenty-two excluded witnesses. Ali did not submit a notice of alibi witnesses twenty days ahead of trial as required. See Ind. Code § 35-36-4-1 (2008). The alibi witnesses were coworkers, clients, and a leader of a Head Start program. They would have testified that Everling generally was not home in the mornings. Because none of them would have been able to directly counter K.P.’s allegations, we think their exclusion did not by itself work to prejudice Everling. The witnesses who would testify as to K.P.’s reputation for not telling the truth included classmates, family members, and teachers. They would contribute to the defense’s theory that K.P. was lying about Everling. The court excluded all these witnesses because Ali did not notify the State that there would be “anybody who is going to testify as to her reputation for truthfulness.” (Tr. at 48–49, 51, 57–58.)
It is fairly clear that both attorneys knew about these witnesses, but the State maintained that Ali did not characterize any of them as challenging K.P.’s truthfulness. (Tr. at 48.) Attacking her truthfulness was a central part of Everling’s case. While K.P.’s truthfulness did come up in the defense’s questioning of other witnesses, they very well could have convinced the jury to doubt her creditability. Their exclusion was therefore prejudicial.
The remaining witnesses to K.P.’s truthfulness were Heather McClain and Tami Biele. They would both testify about interviews they had with K.P. McClain, a member of the Anderson Police Department who interviewed K.P., was listed on the State’s first information. The court mulled over whether to admit her testimony, but seemed to lean toward excluding it as hearsay before moving on to warn Ali about statements to the jury. (Tr. at 52–54, 58–59.) The court excluded Biele, who would have testified that K.P. had not mentioned Everling’s conduct when she discussed another sexual partner, by granting her employer’s motion to quash. (App. at 112.)
Finally, Dr. Merk’s testimony was perhaps the most important to Everling’s case. Because Merk would have presented an alternative explanation for physical evidence of the crime, it is the most specific challenged testimony. (Tr. at 118.) While the State did not know of Merk until the eve of trial, it had not yet begun its case-in-chief. Its opening statement could have been altered, and a short continuance would have remedied any surprise. Because Merk’s testimony would have been so important and Ali’s illness excuses his delay to a great extent, we conclude excluding him was an abuse of discretion.
We also note that a continuance would have solved the problems Judge Spencer sought to address with exclusions by giving the State time to learn more from Everling’s witnesses. Judge Spencer commented that Ali had asked the trial to be set in January rather than in October. (App. at 333.) In light of Ali’s illness and the court’s last-minute indication that K.P.’s sexual history might not be categorically excluded, a continuance of thirty days may have made a world of difference. Further, although Everling did not submit his witness list until days before trial, the State conceded that it had spoken to some of those listed. (App. at 311.)
The cumulative result of Judge Spencer’s comments, exclusions, and general demeanor toward the defense was a trial below the standard towards which Indiana strives.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.