Opinion
Docket No. 23006
Filed July 16, 1998 Superseded. See State v. Harris, 132 Idaho 843, June 16, 1999.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Thomas F. Neville, District Judge.
Judgments of conviction for rape and kidnapping,vacated and remanded.
Kehne Law office, Boise, for appellant. Rolf M. Kehne argued.
Hon. Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, Boise, for respondent. Catherine O. Derden argued.
Mark Stevens Harris was found guilty by a jury of rape, I.C. § 18-6101, and kidnapping in the first degree, I.C. §§ 18-4501, 4502. On appeal, Harris contends that the district court erred by excluding a defense witness from testifying as the sanction imposed for a discovery violation. For the reasons set forth below, we vacate Harris's judgments of conviction and remand for a new trial.
On May 13, 1995, Harris spent the day drinking at several bars in the Boise area. He and a friend later went to a bar on Broadway Avenue where he met N.K. Thereafter, Harris and N.K. went outside together. The trial testimony at this point differed vastly. According to N.K., Harris took out a knife and forced her into his vehicle, a convertible BMW with its top up. Harris drove her to a printing business on Broadway Avenue where he worked and forced her inside the building. Harris and N.K. then went upstairs. At the top of the stairs, N.K. lost her footing and the two went crashing down the stairs. N.K. landed on a desk with Harris falling on top of her. Harris started beating N.K. with a metal bar. N.K. took the metal bar from Harris, went to a front window and tried unsuccessfully to break the window. Harris grabbed N.K. and raped her. After the rape, N.K. convinced Harris to let her drive his vehicle back to the bar. When they got back to the bar, N.K. ran inside and the authorities were notified. The police arrived and Harris was arrested.
Harris testified that he and N.K. went outside the bar to do some cocaine. Once outside, Harris showed N.K. his BMW, which had the top down, and they decided to go for a drive. They also decided to stop at the printing business where Harris worked. They went inside the building, and Harris gave N.K. a tour. They eventually went upstairs and began to get intimate. Harris took off his clothes, including his prothesis leg. Realizing that the upstairs room was too small, they decided to go downstairs. At the top of the stairs, with Harris behind N.K., Harris lost his footing. They crashed down the stairs and landed on a desk. Harris testified that N.K. thought he had intentionally pushed her down the stairs and, on seeing him with the metal bar, asked if he was going to beat her. Harris did not beat her with the metal bar. The two tried unsuccessfully to have sex and drove back to the bar.
Based on Harris's conduct as portrayed by N.K., Harris was indicted on rape and kidnapping charges. Harris went to trial before a jury. At trial, defense counsel called John Williams to testify. Williams was apparently going to testify that he was driving on Broadway Avenue the night of the incident and saw that Harris's BMW was parked in front of the printing business with its top down. Williams' testimony would have contradicted the victim's testimony that Harris's BMW's top was up when she was forced into Harris's vehicle. Williams' testimony would have further contradicted N.K.'s implication that she could not escape out of Harris's vehicle.
The state objected to Williams testifying on the basis that Williams had not been disclosed as a witness. The state requested that Williams be excluded from testifying as a sanction for the failure to disclose. Defense counsel admitted that he had neglected to list Williams as a witness, but stated that his failure to disclose Williams was not deliberate. The district court specifically found that defense counsel's failure to disclose Williams was inadvertent. The district court then stated: "The other problem is that it's simply not disclosed. I don't think you can bring him in if it hasn't been disclosed." The district court excluded Williams from testifying as a sanction for the discovery violation. The district court, however, indicated that it would reconsider its ruling if the state had time to interview Williams. Defense counsel ensured that Williams would be available during the day so that the state would have the opportunity to interview him at any time. The state, however, did not interview Williams and he was not allowed to testify.
Harris was found guilty of rape and kidnapping. The district court sentenced Harris to a unified sentence of twenty years, with ten years fixed, for the rape and a concurrent, fixed ten-year term of confinement for the kidnapping. Harris appealed, claiming the district court abused its discretion in excluding Williams' testimony as a sanction for the discovery violation.
We review the district court's refusal to allow Williams to testify due to a discovery violation under an abuse of discretion standard. State v. Lamphere, 130 Idaho 630, 633, 945 P.2d 1, 4 (1997); State v. Stradley, 127 Idaho 203, 208, 899 P.2d 416, 421 (1995). When a district court's discretionary decision in a criminal case is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
The issue of excluding a defense witness as a sanction for violating discovery has recently been addressed in Lamphere and State v. Winson, 129 Idaho 298, 923 P.2d 1005 (Ct.App. 1996). In Lamphere, the trial court refused to allow a defense witness to testify as a sanction for late disclosure. On appeal, the Idaho Supreme Court stated:
We review the district court's refusal to allow W.P. to testify due to Lamphere's late disclosure under an abuse of discretion standard. State v. Stradley, 127 Idaho 203, 208, 899 P.2d 416, 421 (1995). Lamphere argues that in exercising its discretion, the district court should have weighed the prejudice suffered by the State against Lamphere's right to a fair trial, as the court did in State v. Stradley, supra. In Stradley, in discussing sanctions p that were available, this Court noted that exclusion of the witness was permitted by I.C.R. 16(j), but that such a sanction was outweighed by the defendant's right to a fair trial. 127 Idaho at 206, 899 P.2d at 419.
In the present case, the State did not show any prejudice, but simply stated an objection to the witness on the basis of late disclosure. In deciding this issue, the court merely stated: "[T]he State has not had ample notice of this witness, and I think the prejudice, even if it were relevant, is a burden that the State need not bear." The district court did not require the State to make any showing that it would have been prejudiced if W.P. were allowed to testify. We hold that the district court exceeded the proper bounds of its discretion by failing to analyze whether the State would suffer prejudice due to the late disclosure.
Lamphere, 130 Idaho at 633-34, 945 P.2d at 4-5.
In Winson, this Court reviewed whether a magistrate erred in excluding two defense witnesses from testifying as a sanction for late disclosure. This Court first discussed Stradley and the Supreme Court's comment on the trial court's decision in that case to impose a narrowly-tailored sanction against defense counsel versus the most severe sanction of exclusion. This Court then stated:
In contrast, in this case the magistrate adopted the state's requested remedy — without evaluating whether it penalized the individual responsible for the discovery violation and without considering less severe sanctions. Winson argues that the magistrate could have ordered a continuance, giving the prosecution time to prepare, with the costs of retaining the jury charged to the defense. The district court determined that neither attorney suggested such a remedy at the time the magistrate imposed the discovery sanction. However, the imposition of discovery sanctions is to be the result of an exercise of reason by the trial court, not limited to those suggested by the attorneys. The magistrate did not refer to the discretionary nature of the decision or to the applicable rules in imposing the sanction. Further, the magistrate did not make an independent determination that prohibiting the defense's presentation of the witnesses was an appropriate sanction. The magistrate's exclusion of defense witnesses as a discovery sanction for missing the discovery deadline, which severely penalized Winson for his attorney's error, was an abuse of discretion.
Winson, 129 Idaho at 303, 923 P.2d at 1010.
In this case, the district court failed to evaluate the prejudice suffered by the state beyond the obvious fact that the state had not had an opportunity to interview Williams. The district court should have considered Harris's right to a fair trial and whether a less severe sanction was appropriate considering the circumstances of this case. The district court did not consider whether a less severe remedy, such as a short continuance or a mistrial to allow the state to interview and investigate Williams, would have prevented prejudice to the state while avoiding penalizing Harris for his attorney's error. Although we recognize that at the time of its ruling the district court did not have the benefit of Lamphere and Winson, we must conclude that the district court did not apply the appropriate legal standards and consider the scope of the available alternatives before excluding Williams as a sanction for the discovery violation. See Lamphere, 130 Idaho 630, 945 P.2d 1; Winson, 129 Idaho 298, 923 P.2d 1005. We note that the district court's offer to reconsider its ruling excluding Williams did not remedy its error considering that the state preferred to have Williams excluded and had no incentive to voluntarily take investigative action which would have permitted Williams to testify. We also note that Williams' testimony was not cumulative, as suggested by the state on appeal.
Harris has challenged several additional evidentiary rulings by the district court as error and, therefore, grounds for relief on appeal. Because we vacate Harris's judgments of conviction and remand the case for a new trial, it is unnecessary for us to address those issues.
Chief Judge LANSING and Judge Pro Tem SWANSTROM, CONCUR.