Summary
In State v. Finnerty (1989), 45 Ohio St.3d 104, 543 N.E.2d 1233, the Ohio Supreme Court held that rebuttal witnesses fall within the scope of discovery.
Summary of this case from State v. WamsleyOpinion
No. 88-1720
Submitted May 17, 1989 —
Decided August 23, 1989.
Criminal law — Prosecution fails to inform accused of rebuttal witness — Crim. R. 16(B) — Evidence — Court does not abuse discretion by admitting testimony, when.
APPEAL from the Court of Appeals for Lorain County, No. 4247.
On August 30, 1986, Timothy Kolleda died in his Sheffield Lake, Ohio, home after being struck from behind by hammer blows to his head. The coroner placed Kolleda's time of death at sometime between 3:30 and 4:00 p.m.
Later that same afternoon, Bonita Finnerty received a collect telephone call from her husband, Patrick G. Finnerty, defendant-appellee, who stated that he had killed someone in Sheffield Lake. He also said that he was going to drive to Mt. Vernon, Ohio, in order to turn himself in. After talking with her husband, Mrs. Finnerty sought advice from Mayor Fragassi of Sheffield Lake, who apparently then called the Sheffield Lake police. When questioned, Mrs. Finnerty told the police that she thought that the man her husband said he had killed was Kolleda.
The police with Mrs. Finnerty drove to Kolleda's residence. Upon entering the house, the police discovered Kolleda's body on the second floor.
That evening, appellee turned himself in at the Mt. Vernon police station, stating that he had killed someone. After being advised of his rights, appellee confessed to killing a man in Sheffield Lake. Appellee cooperated during the questioning and told the police where he disposed of the hammer used to kill Kolleda.
Appellee was charged with the aggravated murder of Kolleda. Pleas of not guilty and not guilty by reason of insanity were entered by appellee. A jury trial was held in July 1987. After the state's case-in-chief, appellee presented three character witnesses who testified as to Finnerty's good and non-violent nature. In addition, Dr. Kurt A. Bertschinger, a forensic psychiatrist, and Dr. James R. Eisenberg, a forensic psychologist, testified. Dr. Bertschinger stated that his primary diagnosis of appellee was that he was suffering from a major depression with mood-congruent psychotic features. Dr. Bertschinger's secondary diagnosis was that appellee also suffered from depersonalization disorder. Dr. Bertschinger concluded that, at the time of the murder, appellee was suffering from an active mental illness, that his reason was impaired, and that he could not conform his conduct to the requirements of the law.
Dr. Bertschinger testified that appellee was under the delusion that he had contracted AIDS after engaging in sexual relations with a woman on a business trip to Duluth, Minnesota, in April 1986. It appears that Kolleda had accompanied appellee to Duluth and had arranged for the encounter between appellee and the woman. Upon returning home, appellee initially feared that he had contracted a venereal disease from the woman in Duluth. Appellee blamed Kolleda for his apparent disease. However, when both appellee and his wife sought medical advice they were informed that they did not have any signs of venereal disease. Despite these assurances, appellee continued to believe that he had a venereal disease and later became convinced that he had AIDS.
Appellee was certain that he was going to die. He withdrew physically from his family because he was afraid of infecting them. He also experienced, at that time, many symptoms which confirmed, in his mind, that he had AIDS, some of which were loss of weight and insomnia. He stated that his tongue was coated with a "scummy" substance; he thought he smelt like an animal; and he felt that the sun was burning through him. After he killed Kolleda, however, these symptoms vanished within a few hours. Dr. Bertschinger stated that appellee's mental illness appeared to have commenced after appellee returned from the Duluth business trip.
Dr. Eisenberg testified that after administering psychological tests to Finnerty, he had concluded that appellee was legally insane at the time of the murder. The defense then rested.
Over appellee's objections, appellant called, on rebuttal, Maryellen Guenther. This rebuttal witness testified that several months before the Duluth trip, she had heard appellee state in reference to Kolleda that, "`I'll kill that son of a bitch someday.'" Appellee had objected to this testimony because appellant had not supplied Guenther's name to appellee pursuant to a pretrial request for discovery. Appellee's motion to exclude this testimony was overruled by the trial court. Appellee did not request a continuance of the trial. The other rebuttal witnesses, Thomas Haglund, Ph.D., and Kathleen M. Quinn, M.D., were then called. They testified that appellee was not legally insane at the time he killed Kolleda.
The record discloses that appellee, on September 30, 1986, made a discovery request, including a request for a list of all witnesses the prosecution intended to call at trial. The prosecution initially responded to this request on November 10, 1986 and later supplemented the list on May 14, 1987. Neither list included Maryellen Guenther's name.
The jury found appellee guilty of aggravated murder, and he was sentenced to a term of life imprisonment by the trial court. Appellee appealed to the court of appeals, assigning as error that the trial court did not instruct the jury on the lesser included offense of voluntary manslaughter. He also contended that the trial court erred in admitting the testimony of the rebuttal witness, Guenther, because her name had not appeared on appellant's witness list. The court of appeals overruled appellee's first assignment of error but found that the trial court erred in admitting Guenther's rebuttal testimony. The appellate court reversed the decision of the trial court and remanded the case for a new trial.
This cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Gregory A. White, prosecuting attorney, and Jonathan E. Rosenbaum, for appellant.
Smith Smith Attorneys, Gerald M. Smith and Daniel Wightman, for appellee.
The issue before this court is when the prosecution, upon a proper discovery request, fails to furnish the defendant with the name of a known rebuttal witness, must the trial court exclude the testimony of the rebuttal witness?
Crim. R. 16 provides for discovery and inspection by either party in a criminal action. Crim. R. 16(B) imposes on the prosecutor a duty to disclose certain information upon a proper discovery request made by the defendant. Included in this rule is a provision for discovery of witness' names, addresses, and records of felony convictions.
"(A) Demand for Discovery. Upon written request each party shall forthwith provide the discovery herein allowed. * * *"
"Upon motion of the defendant, the court shall order the prosecuting attorney to furnish to the defendant a written list of the names and addresses of all witnesses whom the prosecuting attorney intends to call at trial, together with any record of prior felony convictions of any such witness, which record is within the knowledge of the prosecuting attorney. * * *" Crim. R. 16(B)(1)(e).
The duty to disclose information pursuant to a proper discovery request is continuous. "If, subsequent to compliance with a request or order pursuant to this rule, and prior to or during trial, a party discovers additional matter which would have been subject to discovery or inspection under the original request or order, he shall promptly make such matter available for discovery or inspection, or notify the other party or his attorney or the court of the existence of the additional matter, in order to allow the court to modify its previous order, or to allow the other party to make an appropriate request for additional discovery or inspection." Crim. R. 16(D). See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 26, 514 N.E.2d 394, 401-402.
Rebuttal witnesses, as well as witnesses used in the prosecution's case-in-chief, fall within the scope of discovery. See State v. Howard (1978), 56 Ohio St.2d 328, 333, 10 O.O. 3d 448, 451, 383 N.E.2d 912, 915; State v. Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 487, 453 N.E.2d 689, 691. Thus, if the prosecution does not provide the name of a rebuttal witness upon a defendant's request for such information, the trial court may impose sanctions on the prosecution.
Crim. R. 16(E)(3) sets forth several sanctions when a party fails to comply with a discovery request. "* * * [T]he court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances." It is within the trial court's discretion to decide what sanction to impose. See Apanovitch, supra, at 26, 514 N.E.2d at 402; Parson, supra, at 445, 6 OBR at 487, 453 N.E.2d at 691; State v. Edwards (1976), 49 Ohio St.2d 31, 42, 3 O.O. 3d 18, 24, 358 N.E.2d 1051, 1059-1060.
Exclusion of the rebuttal witness' testimony is only one sanction among many that the trial court can impose. In Howard, supra, the prosecution called a rebuttal witness, whose name the prosecution had not given to the defense, in order to attack the credibility of the defendant. We stated that the philosophy of the Criminal Rules was to "* * * remove the element of gamesmanship from a trial. [Accordingly], [t]he state should furnish upon a proper demand the names of all witnesses it reasonably anticipates it is likely to call, whether in its case-in-chief or in rebuttal. * * *" (Emphasis added.) Id. at 333, 10 O.O. 3d at 451, 383 N.E.2d at 915. However, we held that because no request for a continuance was made by the defendant and because the trial court explicitly instructed the jurors to limit the rebuttal witness' testimony to the issue of the defendant's credibility, the trial court had not committed prejudicial error. Likewise, in Edwards, supra, at 42-43, 3 O.O. 3d at 24-25, 358 N.E.2d at 1059-1060, the prosecution failed to provide the defense with the name of a witness to be called in its case-in-chief. Despite this omission, we held that the trial court properly could admit this testimony in view of the fact that the prosecutor's mistake was inadvertent; that the defense was not surprised by the testimony; and that the defense counsel did not ask for a continuance.
Hence, it is evident from our prior holdings that failure to comply with a discovery request for names of witnesses does not automatically result in exclusion of their testimony. If this were true, then Crim. R. 16(E)(3) would be meaningless. "* * * The court is not bound to exclude such material at trial although it may do so at its option. Alternatively, the court may order the noncomplying party to disclose the material, grant a continuance in the case or make such other order as it deems just under the circumstances. * * *" Parson, supra, at 445, 6 OBR at 487, 453 N.E.2d at 691.
An appellate court which reviews the trial court's admission or exclusion of evidence must limit its review to whether the lower court abused its discretion. Appellee herein asserts that the trial court did commit prejudicial error in allowing the rebuttal witness to testify. Appellant, on the other hand, contends that the trial court did not abuse its discretion in admitting this testimony.
A trial court abuses its discretion when it acts in an unreasonable, arbitrary or unconscionable manner. A reviewing court should not substitute its judgment for that of the trial court. See State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264, 313.
In the instant case appellee's defense was "not guilty by reason of insanity." Appellee presented two experts who testified that appellee was legally insane when he killed Timothy Kolleda. Dr. Bertschinger stated that appellee had a long-standing mental illness which apparently was brought on by his trip to Duluth. The vast majority of the defense was devoted to this expert testimony. In view of this defense, the prosecution could not reasonably expect that the defense would present evidence as to appellee's peaceful nature. Indeed, only a few pages of the transcript pertain to testimony by non-expert defense witnesses. From a view of the record and in light of the circumstances, we do not find that the trial court acted in an unreasonable, arbitrary or unconscionable manner; hence, we find no abuse of discretion.
The rebuttal witness could not have testified in the appellant's case-in-chief. See Evid. R. 404(A)(1). In Howard, supra, at 333, 10 O.O. 3d at 451, 383 N.E.2d at 915, we stated that the prosecution should furnish the names of witnesses it "* * * reasonably anticipates it is likely to call." (Emphasis added.) Faced with an insanity defense, we cannot say that the prosecution should have "reasonably anticipate[d]" that it would be able to use this witness to rebut testimony as to appellee's peaceful character. The prosecution could use the testimony of the rebuttal witness only if appellee first put his character into evidence. Appellant learned of the existence of the rebuttal witness on Friday, July 17, 1987. The trial was to begin the following Monday. Appellant did not know that it could use the rebuttal testimony until trial on Tuesday when appellee placed his character as a gentle and non-violent person into evidence. The next morning, it appears that appellant notified the court, as well as the appellee, of the rebuttal witness. Thus appellant supplied the defense with the name of the rebuttal witness as soon as it became apparent that the state would use her testimony.
Appellee should not have been surprised by this witness' testimony as it concerned a statement that he allegedly made; hence, it should have been within his knowledge. Moreover, during cross-examination on Tuesday, appellant asked Dr. Bertschinger a hypothetical question as to whether his diagnosis of appellee would change if he knew that Finnerty had threatened to kill Kolleda long before the Duluth trip. Dr. Bertschinger said such information would not change his opinion.
Appellee did not ask for a continuance when faced with this rebuttal witness. Instead he asked for the most stringent option — total exclusion of the testimony. In the absence of a motion for a continuance, "* * * the trial court properly concluded that defense counsel was prepared to go forward at that time. * * *" Edwards, supra, at 43, 3 O.O. 3d at 24-25, 358 N.E.2d at 1060.
The record also shows that the trial court instructed the prosecution, in the hearing of the jury, to limit the rebuttal witnesses' testimony to the testimony of the character witnesses and Dr. Bertschinger.
In view of the above circumstances, the trial court did not abuse its discretion in admitting rebuttal testimony concerning appellee's remarks about Kolleda.
In reversing the trial court, the appellate court apparently relied on Parson, supra. In Parson, we held that a trial court did not abuse its discretion when it admitted evidence of a co-defendant's prior statement, even though the prosecution had failed to comply with the discovery request. Such evidence could be admitted if the record did not demonstrate "* * * (1) that the prosecution's failure to disclose was a willful violation of Crim. R. 16, (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement * * *." Id. at the syllabus.
The appellate court in the instant case stated that it did not find a willful violation of the discovery rule. Indeed, the record does not evince that appellant's failure to disclose was even a negligent omission as it was found to be in Parson. Here the prosecution could not have known that it would be able to use this rebuttal witness until it heard the defense witnesses testify that appellee was a peaceful, nonviolent man.
The appellate court, however, did determine that foreknowledge of the testimony would have benefited appellant in preparing his defense. It also found that the testimony prejudiced him. However, it was pure speculation on the part of the appellate court that this was the effect of the admission of this testimony. While it is possible that appellee may have changed his defense if he had known of the rebuttal witness, this is conjecture on the part of the court of appeals and is not sufficient to support a finding of abuse of discretion by the trial court. "The trial court had broad discretion in the admission and the exclusion of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, the court should be slow to interfere." State v. Hymore (1967), 9 Ohio St.2d 122, 128, 38 O.O. 2d 298, 302, 224 N.E.2d 126, 130, certiorari denied (1968), 390 U.S. 1024. See, also, State v. Sage (1987), 31 Ohio St.3d 173, 182, 31 OBR 375, 382, 510 N.E.2d 343, 350; State v. Long (1978), 53 Ohio St.2d 91, 98, 7 O.O. 3d 178, 182, 372 N.E.2d 804, 808.
Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court is reinstated.
Judgment reversed.
MOYER, C.J., HOLMES, DOUGLAS and WRIGHT, JJ., concur.
SWEENEY and H. BROWN, JJ., dissent.