Opinion
No. 1 CA-CR 14-0061
09-10-2015
STATE OF ARIZONA, Appellee, v. KRISTIN L. BINDER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Myles A. Braccio Counsel for Appellee Michael J. Dew, Attorney at Law, Phoenix By Michael J. Dew Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2010-167715-001
The Honorable Pamela S. Gates, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Myles A. Braccio
Counsel for Appellee
Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Andrew W. Gould and Judge Patricia A. Orozco joined. SWANN, Judge:
¶1 Kristin Laurel Binder appeals her convictions and sentences for two counts of child abuse, both dangerous crimes against children, and one count of reckless child abuse. The sole issue raised on appeal is whether the trial court abused its discretion when it precluded Binder's expert witness from testifying. We hold that preclusion of Binder's expert witness was a reasonable exercise of the trial court's authority in light of defense counsel's repeated failures to make him available for an interview. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Binder was indicted on four counts of child abuse arising from allegations that she endangered the physical health of her five-year-old adopted son ("the victim") by failing to seek medical care for his physical injuries, and causing him to suffer bruises, bedsores, and "starvation and/or malnutrition."
¶3 A school psychologist contacted Child Protective Services ("CPS") when she saw the victim during a meeting with Binder to discuss an evaluation of one of Binder's adopted daughters. The psychologist observed that the victim's face was "very bruised," he appeared "very thin" and "anxious," and he said, "I hungry, mama." CPS obtained custody of the victim after an investigator observed that he had a distended and bloated stomach and significant injuries on his body inconsistent with Binder's explanation that he was "self-hurting." Doctors who evaluated the victim at the Childhelp Center observed a black eye and other injuries on his back, arms, and legs, as well as symptoms of severe malnutrition, including sparse and brittle hair, noticeable loss of fatty tissue underneath the skin on his arms and legs, swollen and red feet, a severely distended and hard abdomen, and "very severe respiratory distress." The doctors recommended that the victim be immediately transported to a hospital emergency room.
Pursuant to S.B. 1001, Section 157, 51st Leg., 2nd Spec. Sess. (Ariz. 2014) (enacted), the Department of Child Safety would now be the agency concerned with this matter. See ARCAP 27. In the text of our decision, we refer to the agency that was involved at the relevant time. --------
¶4 The chief of surgery at St. Joseph's Hospital, where the victim was transported, opined that food had been withheld from the victim "for some fairly long period of time," possibly for "weeks," and he was "massively malnourished." A pediatric gastroenterologist diagnosed him with "protein calorie, protein energy malnutrition" that caused abnormalities to his internal organs, muscle wasting, and brain atrophy.
¶5 Binder stated that the victim was "self-harming" and had unpredictable eating habits, including eating dog and cat food and roaming at night in search of food. The victim flourished, however, after being placed in a foster home.
¶6 Binder informed the court at a hearing in May 2013 that she intended to offer Dr. Michael Weinraub's expert opinion that: 1) the victim was not a well child when placed with her; 2) the victim was placed with Binder without notification of his health issues, which caused her to be misguided by the victim's health providers; and 3) Binder followed the treatment regimens prescribed by the victim's treating doctors, including a psychiatrist, which caused malnutrition in the victim. The court ruled that it would allow Dr. Weinraub to testify as to those opinions, assuming adequate foundation and admissibility under the rules of evidence, but precluded others of his opinions, including his opinion that Binder did not intend to be abusive.
¶7 In September 2013, however, the court precluded Dr. Weinraub from testifying altogether. In a lengthy minute entry, the court explained that defense counsel's repeated failure to comply with court orders to secure an interview with Dr. Weinraub before trial constituted a "willful violation motivated by a desire to delay the trial and to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability of the State to anticipate and prepare its rebuttal case," and that "all other lesser available sanctions were either previously imposed or were inapplicable." The court recognized that preclusion "would likely have a prejudicial effect on the Defendant's case," but also recognized that, without an interview, the state was unable to ascertain the bases for his opinions, which the state believed were not supported by the medical records and must have been based on information supplied by "the Defendant and/or her lawyer." The superior court noted that "preclusion is rarely an appropriate sanction for a discovery violation and should be used only as a last resort," but concluded that the conduct here "ultimately warranted the sanction of last resort."
¶8 The jury convicted Binder of child abuse in Counts 1 and 2 for failure to seek medical care and for starvation and/or malnutrition, and of the lesser-included offense of reckless child abuse in Count 3. The jury found Binder not guilty of the child abuse charged in Count 4 for causing bed sores. The superior court sentenced Binder to two sixteen-year prison terms for Counts 1 and 2, to be served consecutively, and a one-year prison term for Count 3, to be served concurrently with Count 1. Binder timely appeals.
DISCUSSION
¶9 Binder argues that the superior court abused its discretion when it precluded her expert witness, Dr. Weinraub, from testifying, as a sanction for her counsel's failure to arrange an interview with him. She asserts that the failure of her counsel to arrange an interview did not violate Ariz. R. Crim. P. 15, and the superior court therefore had no authority to impose sanctions under Rule 15.7. Binder also argues that the court's preclusion of her expert witness deprived her of the opportunity to present a complete defense.
¶10 We review a trial court's ruling on discovery issues for abuse of discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6 (App. 2007). "To the extent Defendant sets forth a constitutional claim in which [s]he asserts the information is necessary to h[er] defense, however, we will conduct a de novo review." Id. I. AUTHORITY FOR SANCTION
¶11 We are not persuaded by Binder's argument that the court lacked authority to impose a sanction under Ariz. R. Crim. P. 15.7, because the discovery rules did not specifically require her to produce her expert for an interview. Because Binder failed to make this argument at trial, we review this claim for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005); State v. Bolton, 182 Ariz. 290, 304 (1995). Binder accordingly bears the burden of demonstrating that the court erred in precluding her expert witness, that the error was fundamental, and that she was prejudiced thereby. See Henderson, 210 Ariz. at 568, ¶ 22.
¶12 Binder has not met this burden. The court's repeated orders to make the expert available for a one-hour telephonic interview were reasonable orders designed to give effect to the rules requiring disclosure of expert witnesses and their reports, and to allow opposing counsel to prepare for cross-examination, prepare fact witnesses, and prepare a rebuttal case. See Ariz. R. Crim. P. 15.2(c)(2) and 15.2(e)(2); see also Ariz. R. Crim. P. 15.3(a)(2) (allowing courts to order depositions of witnesses if person will not cooperate in granting a personal interview). A trial court has inherent authority to issue orders necessary to control the proceedings and ensure a fair trial, and to impose sanctions for failure to comply with those orders. See A.R.S. § 12-123(b) ("The court, and the judges thereof, shall have all powers and may issue all writs necessary to complete exercise of its jurisdiction."). In this case, the state expressed concerns that the expert's opinions lacked foundation because its review of the medical records failed to show any support for his opinions that the victim was not a healthy four-month-old baby when he was given to Binder; that the failure to inform Binder of his ostensible history of prenatal exposure to alcohol and heroin (or his postnatal traumatic injury) resulted in misguided treatment; and that the victim's psychiatrist had prescribed a diet or medication that caused his malnutrition. The court's repeated orders to defense counsel to produce Dr. Weinraub for an interview were reasonable in these circumstances, as was its final sanction of preclusion of Dr. Weinraub for the defense's failure to comply with its discovery orders.
¶13 Binder has also failed to demonstrate that the court fundamentally erred by failing to order a deposition under Rule 15.3, which would have ordinarily required the state to subpoena Dr. Weinraub directly. See Ariz. R. Crim. P. 15.3 (c). Although Rule 15.3 provides that a court may order depositions of recalcitrant witnesses, it does not prohibit a court from alternatively ordering defense counsel to provide dates for an expert witness's interview. See generally Ariz. R. Crim. P. 15.3. Moreover, Binder did not suggest at trial, and has failed to demonstrate on appeal, that Dr. Weinraub would have responded to a subpoena from the state any differently than he responded to defense counsel's requests pursuant to the court's orders. II. BASIS FOR PRECLUSION
¶14 "Before precluding a witness under Rule 15.7, the trial court must examine the surrounding circumstances, specifically considering the following factors: 1) how vital the precluded witness is to the proponent's case; 2) whether the witness's testimony will surprise or prejudice the opposing party; 3) whether bad faith or willfulness motivated the discovery violation; and 4) any other relevant circumstances." State v. Naranjo, 234 Ariz. 233, 242, ¶ 30 (2014). We will not find an abuse of discretion unless "no reasonable judge would have reached the same result under the circumstances." Id. at ¶ 29 (citation omitted).
¶15 Although the court acknowledged that preclusion of Dr. Weinraub's testimony "would likely have a prejudicial effect on the defendant's case," the court found that the parties disputed whether his opinions had an adequate basis in the medical records. And because the record fails to detail the basis for each of Dr. Weinraub's opinions, we cannot conclude that this witness would have been "vital" to Binder's case.
¶16 The record supplies ample support for a conclusion that Dr. Weinraub's testimony would cause "surprise or prejudice" to the state. The state's questions regarding the foundation for Dr. Weinraub's opinions went to the heart of his proposed testimony, and, absent an interview to ascertain the bases for his opinions, the state would be at a grave disadvantage in preparing its fact witnesses, its motions to preclude or limit Dr. Weinraub's testimony, its cross-examination of Dr. Weinraub, and its rebuttal case. This factor supported preclusion. See Naranjo, 234 Ariz. at 244-45, ¶¶ 49-53 (upholding preclusion of expert witness when defendant failed to comply with orders to disclose doctor's methodology and materials relied upon).
¶17 Finally, the record supports the court's conclusion that defense counsel's repeated failure to comply with court orders and secure an interview of her expert witness before trial constituted a "willful violation" motivated by a desire to delay trial as long as possible while Binder remained out of custody, and to "obtain a tactical advantage" by minimizing the effectiveness of the state's cross-examination and preparation of its rebuttal case. We would not affirm the imposition of such a severe sanction without some measure of patience from the trial court. But this record shows that the court repeatedly continued trial over a period of two years to allow defense counsel "to retain an expert, find a new expert, re-hire the prior expert, and arrange a one-hour telephonic interview with the expert."
¶18 Over the final four months, defense counsel repeatedly failed to comply with the court's successive deadlines to make Dr. Weinraub available for an interview, resulting in a warning in August 2013 that the court would entertain a motion to preclude if the expert did not submit to an interview. One week before trial was finally set to begin, defense counsel provided the prosecutor with several times that Dr. Weinraub would ostensibly be available for the interview. Within 70 minutes, the state had selected one of the times, only to be informed a day later that Dr. Weinraub was no longer available at that time. The court granted the state's motion to preclude one day before trial, and defense counsel was still unable to provide a date Dr. Weinraub would be available for interview. The record amply supports the court's finding that Binder's disregard for court orders relating to discovery of the expert's opinions was willful. See Naranjo, 234 Ariz. at 242, ¶ 34 ("Preclusion may be an appropriate sanction when a party engages in 'willful misconduct, such as an unexplained failure to do what the rules require.'" (citation omitted)). III. DEPRIVATION OF DEFENSE
¶19 Finally, we are not persuaded that the court's preclusion of Binder's expert witness deprived Binder of a meaningful opportunity to present a complete defense. "[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citation and internal punctuation omitted). A defendant's right to present evidence is subject to restriction, however, by application of reasonable evidentiary rules. See United States v. Scheffer, 523 U.S. 303, 308 (1998). Our supreme court has also recognized that "in exercising the right to present witnesses, a defendant must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Naranjo, 234 Ariz. at 245, ¶ 55 (citation and internal punctuation omitted).
¶20 In this case, the court's preclusion of Binder's expert witness represented a reasonable exercise of discretion. The court warned Binder a month before it finally precluded her expert witness that it might do so if she persisted in failing to make him available for an interview. The court ultimately found that the failure to produce the witness for a one-hour telephonic interview was a deliberate tactic by defense counsel to delay trial and to limit the state's ability to prepare its case for trial. In these circumstances, we conclude that the court did not deprive Binder of her constitutional right to an opportunity to present a complete defense.
CONCLUSION
¶21 For the foregoing reasons, we affirm Binder's convictions and sentences.