Brief Bank # B-707 (Re: F 2.06 n8 [Instruction Regarding Jury’s Consideration Of Evidence Not Timely Disclosed By The Defense].)
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ARGUMENT
I
THE COURT ERRED IN INSTRUCTING THE JURY THAT IT
COULD DISREGARD THE DEFENSE’S EXPERT WITNESS WHO
TESTIFIED REGARDING APPELLANT’S ALCOHOLIC AMNESIA
BECAUSE APPELLANT HAD NOT DISCLOSED ITS EXPERT’S
REPORT WITHIN 30 DAYS PRIOR TO TRIAL
A. Facts/Introduction
On June 5, 1990, the electorate adopted Proposition 115, the “Crime Victims Justice Reform Act,” which, inter alia, mandated reciprocal discovery in criminal matters. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 363.) Pursuant to the discovery provisions enacted with the passage of Proposition 115, the prosecution gave appellant notice in the information, filed September 7, 1995,they sought informal discovery, pursuant to Penal Code sections 1054.3 and 1054.5, subdivision (b). (CT 33.)
Appellant’s trial commenced on July 17, 1996. During some pre-trial motions the prosecution mentioned that there had been a report written by a defense-retained expert, Dr. Kowell, that had just been produced. (RT 17.) The record does not indicate the exact date the report, which was in the possession of the prosecution at the time of the motion, had actually been produced. However the prosecution does mention that the report was produced when the trial was “eight of ten.” (RT 19.) The trial court offered the prosecution a continuance, which the prosecution declined because it had a backlog of cases to take to trial. (RT 20.) The prosecution also indicated that they were able to go forward with their case and would be able to sufficiently cross-examine the defense witness. (RT 18, 19.) The prosecution thought that the appropriate sanction would be to bar the witness’s testimony, or to instruct the jury regarding the late disclosure and to further instruct them that evidence which was not timely disclosed should be viewed with caution and that the jury was free to reject such evidence. (RT 20, 21.)
Defense counsel turned over the report to the prosecution with the proviso that she was not yet sure if she would be calling the witness. (RT 21.) Defense counsel indicated that it was not its intention to withhold any information but that it was uncertain about raising the intent defense because it would mean certain conviction if the defense was rejected. (RT 21.) Counsel also indicated that after the report had been written, she had obtained appellant’s medical records from state prison which she gave to Kowell to review before she could decide whether or not to call him. Thus when the dated report was written, in November of 95, Dr. Kowell’s work was incomplete. (RT 22.) Defense counsel also explained that she had not had an opportunity to speak with Kowell after receiving the report because he had been on vacation and she had been in trial. Efforts to contact his office had been fruitless. Thus she was still uncertain as of the date of the motion if she was going to use him as an expert. (RT 22.)
Defense counsel thought that the best remedy, would be a continuance. (RT 18.)
After the court heard defense counsel’s explanation it indicated that defense counsel was “casting a different light on things.” (RT 22.) The court indicated that counsel had not yet decided whether or not she was going to call him. (RT 22.)
The prosecution was not convinced that there was a likelihood that Kowell would not be called and regardless, “would still be asking for the jury instruction.” (RT 23.) The court stated that it would have to hear the evidence before it decided to give the instruction. (RT 23.)
Dr. Kowell, a neurologist, was in fact called to testify as to the nature of alcoholic amnesia or blackouts. Kowell indicated that appellant was a chronic alcoholic with decades of drinking behind him. (RT 127.) Kowelll was of the opinion that appellant had committed the robbery during an alcoholic blackout and that it was not necessary to lose consciousness to experience a blackout. (RT 129, 142.)
During a discussion regarding jury instructions the court indicated that it was going to give the requested instruction regarding late disclosure. (RT 251.) The court stated it would make sure the jury understood that Dr. Kowell’s report should have been disclosed earlier and that the jury could choose not to consider the evidence at all for any reason. (RT 251.) Defense counsel objected to the instruction. The court instructed the jury regarding the late disclosure as follows:
The law of this state requires the prosecution and the defense to disclose to one another the evidence each intends to present at trial. The purpose of the law is to promote the ascertainment of the truth and to avoid any surprise which may arise during the course of this trial.
Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses to produce evidence to rebut the noncomplying party’s evidence.
Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately.
In this case, the defendant failed to timely, disclose the following evidence: Dr. Kowell’s report in this case.
Although the defendant’s failure to timely disclose was without lawful justification, the court has, under the law, permitted the production of this evidence during the trial.
You are, however, instructed that the evidence which was not timely disclosed should be viewed with caution and you are free to reject such evidence if you decide to do so.
The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance or something trivial or subject matters already established by other credible evidence. (RT 266, 267.)
B. The Court’s Instruction To The Jury That They Could Disregard Appellant’s Defense Evidence Because It Was Not Disclosed in A Timely Fashion Was Not Authorized By Either The Pertinent Statutes Nor The Facts Of This Case
The provisions pertinent to this discussion are sections 1054.3 and 1054.5). Section 1054.3 provides:
The defendant and his or her attorney shall disclose to the prosecuting attorney:
(a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.
(b) Any real evidence which the defendant intends to offer in evidence at the trial….
Section 1054.5 states:
(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.
(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel falls to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.
(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.
Here, the deficiency was not a failure to provide discovery but at the most an untimely disclosure of a medical report and expert witness which the prosecution acknowledged would not prejudice its ability to cross-examine the witness regarding its anticipated testimony. (RT 18, 19.) The court’s order exceeded its jurisdiction authorized by the reciprocal discovery statute because the report was disclosed at a time when defense counsel was still uncertain whether she intended to call the expert witness. The defense thought that calling that witness would most likely result in conviction if the defense were rejected. (RT 2 1.) And as will be discussed in the next section, the court’s order effectively operated as an evidence “preclusion order” which infringed appellant’s right to compulsory process.
Section 1054.5), subdivision (b) empowers the court to make “any order necessary to enforce the provisions of this chapter.” Presumably the court under this authority may order defense counsel to produce information or materials the court reasonably finds have been improperly withheld, notwithstanding counsel’s protestations to the contrary. (See In re Littlefield (1993) 5 Cal.4th 122, 131, [court affirmed a trial court order requiring defense counsel to ascertain the address of a witness even though counsel protested he did not have it].)
However, “the determination whether to call a witness is peculiarly within the discretion of counsel. Even when counsel appears to the court to be unreasonably delaying the publication of his decision to call a witness, it cannot be within the province of the trial judge to step into his shoes.” While the court may suffer understandable annoyance at perceived violation by defense counsel of the discovery provisions of the act, it is limited to the remedies provided in the act for such stonewalling. The court may, delay or prohibit the testimony of a witness whose identity or paperwork was unreasonably withheld. (Sec. 1054.5, subd. (b).) (Sandeffer v. Superior Court (People), (1993) 18 Cal.App.4th 672, 678 (emphasis added) [discovery order reversed on writ where court required defense counsel to disclose a report and notes from an expert witness not yet disclosed as a witness].)
Communications with an expert retained to assist in the preparation of a defense is protected by the attorney-client privilege, which is waived only when the expert is identified, and his or her report is released (Evid.Code, § 912, subd. (a).) Electing to present the expert as a witness destroys the work-product privilege. (See, Woods v. Superior Court (People) (1994) 25 Cal.App.4th 178.)
In the instant case, defense counsel offered a reasonable explanation for non-disclosure of its expert. The court could not second-guess defense counsel’s actual motive, especially where the report was voluntarily turned over prior to the commencement of trial. The court had no authority to order sanctions under the discovery scheme because the duty to disclose had not been triggered under the terms of the statute.
C. The Court’s Instruction Abridged Appellant’s Right To Compulsory Process
The court’s instruction to the jury that they could completely disregard Kowell’s testimony because his report was not timely disclosed is for all practical purposes the equivalent of excluding that witness’s testimony. In some respects the instruction was worse than simply excluding the testimony completely because it created the impression that the testimony was unreliable, if not fraudulent, thus undermining any credibility appellant might have as well as his attorney who presented the testimony. The court’s warning to the jury that such evidence should be viewed with caution suggested an element of distrust and/or outright fraud, which was not warranted by the record in this case. (RT 266, 267.)
The instruction resulted in a violation of the Compulsory Process Clause of the United States Constitution. The Sixth Amendment provides in part: “In all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor.”
In Washington v. Texas (1967) 388 U.S. 14, 87 S.Ct. 1920, 18 L-Ed.2d 1019, the court held the right of compulsory process to be applicable to the states. The court stated:
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” (Washington, supra, 388 U.S. at p. 19, 87 S.Ct. at P. 1923.)
The Washington court concluded,” [t] he Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use.” Here the court’s instruction rendered defense counsel’s reliance on its expert witness to establish appellant’s intent defense futile, inasmuch as the jury was told first, they should view such evidence with caution and second, they could disregard that defense testimony in its entirety.
The United States Supreme Court has addressed the issue of a defendant’s Sixth Amendment right to compulsory process in relation to reciprocal discovery requirements in Taylor v. Illinois (I 988) 484 U.S. 400, 98 L.Ed.2d 798.) In Taylor the accused’s counsel failed to disclose, pursuant to an Illinois notice-of-alibi statute, the name of a defense witness even though counsel had been aware of the witness a week before trial and had disclosed other witnesses’ names shortly before trial. The undisclosed witness testified outside the presence of the jury he had seen the victim with weapons prior to the alleged offense and had warned the defendant. However, on cross-examination the witness admitted he had not met the defendant until two years after the incident. The trial court expressed ” ‘a great deal of doubt … as to the veracity of’” the witness and excluded his testimony. (Taylor v. Illinois, supra, 484 U.S. at p. 405, 108 S.Ct. at p. 651.) The Taylor court held:
The right of the defendant to present evidence ‘stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States.’ [Citation.] We cannot accept the State’s argument that this constitutional right may never be offended by the imposition of a discovery sanction that entirely excludes the testimony of a material defense witness. (Id., 484 U.S. at p. 409, 108 S.Ct. at p. 653.)
The court likewise rejected the assertion of the defense:
Petitioner’s claim that the Sixth Amendment creates an absolute bar to the preclusion of the testimony of a surprise witness is just as extreme and just as unacceptable as the State’s position that the Amendment is simply irrelevant. The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory Process Clause provides him with an effective weapon, but it is a weapon that cannot be used irresponsibly. (Id. at p. 410, 108 S.Ct. at p. 653.)
Subdivision (c) of section 1054.5 reflects a similar caution yet permissive tone of Taylor. It states in relevant part: “The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted.” (See also People v. Edwards (1993) 17 Cal.App.4th 1248, 1265.)
Taylor stands for the proposition that exclusion of evidence necessarily may affect the fact-finding process and therefore,” [t] he potential prejudice to the truth-determining function of the trial process must also weigh in the balance.” (Taylor, supra, 484 U.S. at p. 415, 108 S.Ct. at p. 415, fn. omitted.) Thus, the court must consider the extent to which exclusion of particular evidence may undermine the reliability of the fact-finder’s conclusion. Further, the court should consider whether the failure to comply was “willful and motivated by a desire to obtain a tactical advantage.” (Ibid.)
The Taylor court concluded the preclusion sanction was justified in that case because the accused deliberately had violated the discovery order to main a tactical advantage and the proffered evidence likely had been fabricated. (Taylor v. Illinois, supra, 484 U.S. at P. 417, 108 S.Ct. at p. 657.) This is hardly the situation in the present case where the defense counsel gave a rational explanation why it had not finally determined to call its expert witness when it disclosed the witness and the prosecution readily acknowledged that it had no disadvantage in cross-examining this witness. In the present case the instruction simply provided a windfall tactical advantage to the prosecution since the jury could now simply ignore appellant’s entire defense.
In Michigan v. Lucas (1991) — U.S. 111 S.Ct. 1743, 114 L.Ed.2d 205, the United States Supreme Court again held a preclusion sanction may be imposed against a criminal defendant in a proper circumstance, but strongly reiterated that such cases are the exception rather than the rule. There the accused in a rape prosecution failed to give statutorily, required notice of his intent to introduce evidence of prior sexual contact between himself and the victim. As a discovery sanction, the trial court excluded the evidence at trial. The state appellate court reversed and adopted a per se rule that notice requirements could never be used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant. The Supreme Court held the per se rule improper in that preclusion may be an acceptable sanction in some cases but noted that “[r]estrictions on a criminal defendant’s rights to confront adverse witnesses and to present evidence ‘may not be arbitrary or disproportionate to the purposes they are designed to serve.’ [Citation.]” (Michigan v. Lucas, supra, — U.S. at p. — 111 S.Ct. at p. 1747, 114 L.Ed.2d at p. 213.)
The high court took this opportunity to clarify, a related issue:
We did not hold in Taylor that preclusion is permissible every time a discovery rule is violated. Rather, we acknowledged that alternative sanctions would be ‘adequate and appropriate in most cases.’ [Citation.] We stated explicitly, however that there could be circumstances in which preclusion was justified because a less severe penalty ‘would perpetuate rather than limit the prejudice to the State and the harm to the adversary process.’ [Citation.] Taylor, we concluded, was such a case. The trial court found Taylor’s discovery violation amounted to ‘willful misconduct’ and was designed to obtain ‘a tactical advantage.’ [Citation.] Based on these findings, we determined that, ‘regardless of whether prejudice to the prosecution could have been avoided’ by a lesser penalty, ‘the severest sanction [wa]s appropriate.’ [Citation.]” (Michigan v. Lucas, supra, — U.S. at p – —– 111 S.Ct. at p. 1748, 114 L.Ed.2d at p. 214, italics added.)
Thus under controlling federal law, preclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse. (People v. Edwards (1993) 17 Cal.App.4th 1248 [error to preclude testimony regarding partnership interest relating to some alleged stolen property even though prosecution repeatedly requested evidence concerning partnership, court ordered its production and defendant agreed but failed to produce it].) “Specifically, such sanctions should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial such as the plan to present fabricated testimony in Taylor.’ (Ibid.)
State decisions have refrained from sanctioning exclusion of evidence unless, as in the Taylor case there is a finding of willful misconduct. (People v. Gonzales (1994) 22 Cal.App. 4th 1744.) The Gonzales court also balanced the prejudice caused by the failure to produce or the untimely disclosure of such evidence.
To address prejudice, the court would look to whatever remedy would resolve or significantly resolve the disadvantage, for example a continuance or a delay in presentation of the testimony to allow the, surprised party the opportunity to prepare. Some courts have concluded that prejudice may be so severe that exclusion may be the only remedy. (People v. Jackson (1993) 15 Cal.App.4th 1197.) On the other hand, punishment is normally a response to willful conduct and is designed to deter others as well as to ensure there is a consequence for the wrongdoing. (Ibid.)
The Gonzales court was confronted with an untimely disclosure of a defense witness, the defendant’s cellmate who had spoken with some of the victims who purportedly said they would not be able to identify their robber. (People v. Gonzales, supra, 22 Cal.App.4th at p. 1759. ) The witness was disclosed at the close of the prosecution’s case for the stated reason that the defense counsel’s client had just told him about the conversation regarding these witnesses. The trial court, noting that the witnesses had testified at the preliminary hearing made a finding that the explanation was inadequate and the anticipated testimony “suspect.” The appellate court reversed the conviction reasoning that the record did not demonstrate that the court made any finding that the failure to disclose was willful nor did the record suggest any determination of irremediable or significant prejudice inasmuch as there was no indication that the prosecution witnesses who had made the alleged statements could not have been readily recalled. The Gonzales court held that the trial court had abridged defendant Gonzales’ right to compulsory process requiring reversal of that conviction. (Id. at p. 1759-1760.)
The Gonzales court concluded “that the prejudice would necessarily have to be substantial and irremediable. Further, the consequence to the truth-finding process would have to be carefully balanced. It should not be lightly considered that the consequence of exclusion of significant evidence may so distort the truth-f’inding process as to undermine its reliability.” (Id. at pp. 1757-1758.)
Similar to Gonzales and Edwards, there was no finding in the instant case by the court that the untimely disclosure was willful misconduct on the part of defense counsel. In fact, the court seemed to accept counsel’s explanation when the judge responded he saw things in a different light and acknowledged defense counsel had not yet made the decision to call the expert. (RT 22.) Further, not only, is there nothing in the record suggesting prejudice to the prosecution, the record affirmatively establishes that there was no prejudice whatsoever, inasmuch as the prosecution stated it would not have any problem cross-examining this witness. (RT 19.) Presumably the prosecution was aware of the possibility of an intent defense based on the evidence of appellant’s possible intoxication and history of drunkenness and would be readily familiar with the type of expert that would normally be called if such a defense were actually presented. The record suggests that this was the case here.
D. Even Assuming The Court Had The Authority To Inform The That The Report Was Not Timely Disclosed, It Exceeded Its Authority When It Informed The Jury It Should View Such Evidence With Caution And/Or Completely Disregard The Evidence
Appellant recognizes that the authorizing discovery statute does list as an alternative to exclusion of evidence, informing the jury that certain items of evidence were not discovered in a timely basis. Appellant asserts that the court’s instruction, went well beyond such a statement, and effectively excluded consideration of the evidence by its initial warning to the jury to view the evidence with caution and subsequent permission to ignore it. However, even if one considers this instruction as something less than “exclusion” of the evidence, the court nevertheless exceeded its authority with its homespun instruction which is without any legal precedent.
While the court has available to it a wide array of consequences including fines, contempt, as well as instructions to the jury regarding evaluating the evidence, no cases or statutes have authorized the drastic message of the instant jury instruction. (See, People v. Zamora (1980) 28 Cal.3d 88.) In Zamora the issue on appeal related to the destruction of police records by direction of the city attorney’s office. Prior to trial, defendant’s counsel made an informal request of the city attorney’s office for discovery of records relating to the police officers involved. The city attorney agreed to produce records of any citizen complaints charging racial prejudice or excessive use of force against four police officers; he assured counsel that the records would include the names, addresses, and phone numbers of the complainants. The records were destroyed. (Ibid.)
Even in that situation where evidence was intentionally destroyed after it had been justifiably requested the high court suggested an even milder jury instruction that that used in the instant case. The Zamora court proposed the following instruction: (a) that the officers in question used excessive or unnecessary force on each occasion when complaints were filed against them but that the complaint records later were destroyed, and (b) that the jury may rely upon that information to infer that the officers are prone to engage in excessive or unnecessary force (see Evid. Code, s 1103) and that the officers’ testimony regarding incidents of alleged police force may be biased (see Evid. Code, s I 10 1, subd. (c)). (People v. Zamora, supra, at pp. 93-94.)
The Edwards court also suggested a jury instruction that would be less draconian than the instant case as an alternative to preclusion. That court wrote:
[T]he trial court might have allowed Edwards to present evidence relating to the partnership and thereafter instructed the jury Edwards had admitted possession of the partnership agreement but had failed to produce it when ordered to do so. This sanction would have served the object of discovery in that it would have allowed the People to argue Edwards had concealed the document because its terms were not favorable to him. At the same time, such a sanction would not have infringed Edwards’s right to present a defense and would have permitted him to attempt to explain his failure to produce the agreement.
Moreover, in the event the record had demonstrated Edwards intentionally had concealed the agreement, the trial court could have further instructed the jury to infer the terms of the agreement were adverse to Edwards’s position. (Citation) People v. Edwards, supra, 17 Cal.App.4th 1248.)
Thus the Edwards court indicates that a jury instruction which invites a jury to draw an adverse inference on the issue pertaining to the evidentiary item not properly discovered is not warranted unless the record demonstrates that the evidence was intentionally concealed. In the present case the court not only suggested the jury draw an adverse inference b telling it to view the evidence with caution, but to ignore it altogether. And again, there was no finding of intentional non-disclosure.
E. Appellant’s Conviction Requires Reversal
A violation of the Compulsory Process Clause is an error of constitutional magnitude which requires that this court review such error under the Chapman harmless beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) The error was not harmless beyond a reasonable doubt. Defense counsel summed up the precarious nature of presenting the intent defense represented by this expert–if the jury rejected the defense then it was certain to convict appellant because all other elements are admitted. (RT 21.) Appellant’s entire defense in this case was that he was an alcoholic who had experienced alcoholic blackouts over a decades-long drinking history and was in fact experiencing such a blackout during the subject robbery. The fact that the court told the jury they could ignore the expert testimony on this subject virtually eliminated any question that appellant would be convicted.
There was other evidence suggesting that appellant was drunk during the events in question and thus unable to form the intent necessary to commit the crime. The bank teller who was robbed detected a strong odor of alcohol on appellant. (RT 55, 59.) Appellant walked out of the bank in a zombie-like state even though he was being pursued by a security guard and other bank personnel. (RT 66, 67, 81, 85.) Appellant testified that he had been drinking heavily up to the time of the robbery and had no recollection of the actual events during that period, other than being physically detained and hit. (RT 150, 151.) While this evidence supports the intent defense, without the jury’s consideration of the expert’s conclusion it is virtually meaningless. Additionally without the expert’s conclusion, the only evidence of appellant’s alcoholic tendencies and blackout experience is from appellant, of whom the jury is already skeptical inasmuch as he is the accused. (RT 156, 157.) Thus even if this court reviews the question under the Watson harmless error review, reversal is required. (People v. Watson (1956) 46 Cal.2d 818, 836.)
