Opinion
No. 26794-6-III.
February 17, 2009.
Appeal from a judgment of the Superior Court for Grant County, No. 07-1-00638-1, John M. Antosz, J., entered January 14, 2008.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Sweeney, J.
Melody Craddock appeals her conviction for possession of methamphetamine, contending the trial court erred in excluding testimony from her mother that she had never seen her daughter wear the pink jacket that contained the methamphetamine. The trial court found that the defense had intentionally withheld disclosure of the mother as a witness and excluded the testimony due to the purposeful violation of the court rule. Since the record supports the trial court's findings and we do not believe the proposed testimony would have changed the verdict, we affirm.
FACTS
A deputy sheriff stopped Ms. Craddock for driving without a license plate. Her license was suspended; the deputy then arrested her. A "female's" small-sized pink and blue jacket was on the front seat of the car. In a pocket was a small black handbag containing a glass pipe and a bag of methamphetamine.
Report of Proceedings (RP) at 29.
The matter proceeded to jury trial in the Grant County Superior Court. The deputy and the forensic scientist who tested the controlled substance were identified as the State's only witnesses. Prior to trial, and again at trial, the defense identified Ms. Craddock as its only witness. Ms. Craddock's mother, Gloria Therien, was present at trial and watched the State's presentation of its evidence. When the State rested its case, the defense called Ms. Therien to testify. The prosecution objected and the case was recessed to the next day to allow for an interview of Ms. Therien.
The court heard argument from the parties and considered authority, including State v. Hutchinson, and concluded that the witness should be excluded. The court expressly found that counsel acted willfully and in bad faith by not disclosing the witness. Ownership of the coat was the key issue in the trial. Nonetheless, the court also doubted the proposed testimony of the mother was of much utility given that the mother could only say that she had not seen her daughter wear that coat during the relevant summer time period (August to October 13) that the two worked together. Given that it was important to deter misconduct and not permit the justice system "to be played with in a violation that's willful and in bad faith," the court excluded the evidence.
135 Wn.2d 863, 959 P.2d 1061 (1998).
RP at 82-83.
RP at 108-109.
RP at 85, 108-109.
Ms. Craddock testified in her own defense that she had borrowed the car from her ex-boyfriend and did not know who owned the jacket that had been left in the car. She believed it could be worn by either a male or a female. The defense received an instruction on unwitting possession and argued that theory to the jury. The jury found Ms. Craddock guilty of possession of methamphetamine, driving while license suspended, and possession of drug paraphernalia. She timely appealed to this court.
RP at 111-116.
RP at 147-148, 166-174.
ANALYSIS
The sole issue presented by this appeal, although argued from several different angles, is a claim that the trial court erred in excluding the mother's proposed testimony. While the appellant's argument has some force and reasonable jurists could certainly have different perspectives on the appropriate remedy for the belated disclosure of the witness, the deference owed the trial court leads us to affirm. The evidence supported the finding that counsel acted in bad faith, and that finding permitted the trial court to exclude the evidence. Moreover, any error here would be harmless.
CrR 4.7 Sanctions. A criminal defendant has a constitutional right to present evidence in her own defense. Washington v. Texas, 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967); State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). There is, however, no right to present irrelevant or inadmissible evidence. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
Discovery in criminal cases is regulated by CrR 4.7. A trial judge has broad authority under the rule to control the discovery process and impose sanctions for failure to abide by the rules. CrR 4.7(h)(7). A judge's sanction ruling is reviewed for abuse of discretion. State v. Linden, 89 Wn. App. 184, 189-190, 947 P.2d 1284 (1997), review denied, 136 Wn.2d 1018 (1998). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Typically, sanctions for discovery violations do not include exclusion of evidence. State v. Ray, 116 Wn.2d 531, 538, 806 P.2d 1220 (1991). However, evidence may be excluded when that is the only effective remedy. State v. Hutchinson, 135 Wn.2d 863, 881-883, 959 P.2d 1061 (1998). In order to exclude evidence because of a discovery violation in Washington, the court must consider and weigh four factors: (1) the effectiveness of other sanctions; (2) the impact of witness preclusion on the evidence at trial and outcome of the case; (3) the extent to which the prosecution will be surprised or prejudiced by the testimony; (4) whether the violation was willful or in bad faith. Id. at 883. The trial court carefully considered these factors.
The United States Supreme Court permits exclusion of defense witness testimonyfor willful violation of discovery rules. Taylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988).
More pages of the transcript were devoted to the consideration of whether Ms. Therien should testify than were spent on any of the three witnesses who did testify. RP at 62-109.
We, too, must review the Hutchinson factors. The first of those factors is the effectiveness of other possible sanctions. The trial court did not believe lesser sanctions would be effective, and expressly noted that a continuance during trial was detrimental to the prosecution. The court was also, understandably, concerned that a mid-trial delay would not deter future failures to timely disclose. The court did not, however, consider the possibility that a stiff financial sanction against counsel would deter him (and others) from late disclosure. While even large financial sanctions are probably not useful in a case where the defendant is facing a significant prison sentence, they certainly were a consideration in this instance. Hutchinson presents an example of a case where no lesser sanction than exclusion was feasible. There the defendant was facing a possible death penalty. He refused to cooperate with the State's expert witness. Under the circumstances, there was no other sanction than effectively striking the defense by excluding the defense expert's testimony. 135 Wn.2d at 881-883.
Hutchinson is an extreme case and is one of the rare circumstances where exclusion of a defense witness is the appropriate remedy for nondisclosure. We are not convinced that a monetary sanction would have been unavailing here. Accordingly, we believe the first Hutchinson factor does not favor exclusion of the testimony.
The second factor involves the impact of excluding the evidence on the outcome of the trial. We believe this factor supports the trial court's ruling because the testimony was weak. While the identity of the coat's owner was the critical issue, thus making the mother's testimony relevant, the testimony was likely to have little impact on the trial. Ms. Therein could only testify that she had not seen her daughter wear the incriminating coat during the brief period the two were working together before the traffic stop. That time period was during the summer when coat usage is fairly minimal. The mother of the defendant also is unlikely to be considered an unbiased witness. Similar evidence from a neutral witness would have been stronger. Accordingly, we believe this factor favors the trial court's decision to exclude the testimony.
The third factor is whether the prosecution was surprised or prejudiced by the testimony. The prosecution and the court were both surprised by the mid-trial change of course and decision to call the witness. The late disclosure was also prejudicial because it left the government without the opportunity to check out other associates of the defendant to see what they knew about the coat. If a witness had been disclosed prior to trial, the prosecution would have known what the defense theory of the case was and have been able to investigate it. This type of mid-trial ambush was prejudicial. Accordingly, this factor too favors the court's exclusion ruling. The factor does not strongly favor the ruling, however, because the evidence being excluded was weak.
The final factor is whether the discovery violation was willful or in bad faith. The trial court found it was both. Appellant strongly disputes the findings and assigns error to them. Factual findings will be upheld when supported by substantial evidence — that is, evidence sufficient to persuade a reasonable person of the truth of the fact. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). We believe the evidence supports the determination that the failure to disclose was willful and in bad faith.
The trial court noted that even though ownership of the coat was a critical factor in the case, the defense repeatedly indicated it was not calling any witnesses other than the defendant herself. Defense counsel explained that he changed his mind only after the officer described the coat during his testimony. The problem with that explanation, however, is that the deputy's description in the police reports was read to the trial judge and was largely the same as the trial testimony. In other words, there was nothing new in the testimony of the deputy that changed the evidence or the nature of the issue presented at trial. Pointedly, defense counsel never claimed that the mother's testimony was newly discovered evidence that was just brought to his attention. The trial judge was free to conclude that the proposed testimony was known to counsel all along, that counsel had no reason for changing his mind on whether to call the witness, and apparently did so in order to hamper the other side's preparation. Although it was not a necessary conclusion for the trial court to draw from the evidence, it was a permissible conclusion. The evidence thus supports the findings that counsel acted willfully and in bad faith.
The findings of willful and bad faith violations of the discovery rules in turn support the court's decision to exclude the testimony. The court noted it was seeking to deter misbehavior. Striking testimony that was being hidden from the other side should deter future misconduct along those lines by removing the incentive to hide witnesses. By striking the testimony, after these findings, the court essentially returned the trial to the status quo. This fourth Hutchinson factor thus favors the decision to exclude the evidence.
On balance, the majority of the Hutchinson factors favored the court's decision to exclude the testimony. While the second and third factors slightly favored exclusion, and the first factor did not favor exclusion, the fourth factor more heavily supported the court's decision to exclude the testimony. In light of this balancing of the factors, we cannot say that the trial judge abused his discretion by excluding the testimony.
The prosecution also argues that the decision to exclude the testimony should be upheld on the alternative theory that Ms. Therien violated ER 615 by being present during the State's case. The main problem with that argument is that the trial court did not enter an order excluding witnesses and did not base its exclusion ruling on the court rule. Whether or not to even grant a motion to exclude witnesses is a matter totally within the discretion of the trial court. State v. Adams, 76 Wn.2d 650, 659, 458 P.2d 558 (1969), rev'd on other grounds, 403 U.S. 947, 29 L. Ed. 2d 855, 91 S. Ct. 2273 (1971). How to sanction a violation of an ER 615 exclusion ruling also is left to the discretion of the trial judge. State v. Dixon, 37 Wn. App. 867, 877, 684 P.2d 725 (1984). In light of all of this discretion, we cannot comfortably state that the trial court would have necessarily excluded Ms. Therien's testimony if she had in fact violated an exclusion order. Accordingly, the potential application of ER 615 to this case is not an independent basis for upholding the trial court's decision to exclude Ms. Therien's testimony. At most, the ability of a judge to exclude a witness for violating an exclusion order suggests that excluding the testimony of Ms. Therien here under CrR 4.7 was not an extreme act.
The trial court did not abuse its discretion when it excluded testimony from the undisclosed witness.
Harmless Error. Even if we thought that the trial court had erred in its balancing of the Hutchinson factors, we would still affirm. The alleged error was harmless even under the constitutional harmless error standard.
Error of constitutional magnitude can be harmless if it is proven to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). We believe that to be the case here. We previously have detailed the weak nature of the proposed testimony. We do not believe that if the jury heard the mother's testimony that she had never seen her daughter with that coat during the preceding summer months it would have changed the verdict in the least. Ms. Craddock was caught with controlled substances inside a handbag inside a woman's coat in a former boyfriend's car, which she was driving while he was in jail. What she needed was evidence linking the coat to someone else rather than presenting evidence that weakly suggested the coat was not hers. Under the circumstances, the proposed new evidence would not have impacted the jury. Any error in excluding the evidence was harmless beyond a reasonable doubt.
The convictions are affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to
SCHULTHEIS, C.J. and SWEENEY, J., concur.