Opinion
Docket No. 23825
Filed: November 9, 1998 Reversed. See State v. Miller, 133 Idaho 454, September 28, 1999 (Supreme Court affirmed District Court judgment.)
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Gary M. Haman, District Judge.
Judgment of conviction and sentence of five years with one year fixed for driving under the influence, vacated andremanded for new trial.
John M. Adams, Kootenai County Public Defender; J. Bradford Chapman, Deputy Public Defender, Coeur d'Alene, for appellant. J. Bradford Chapman argued.
Hon. Alan G. Lance, Attorney General; Kenneth F. Stringfield, Deputy Attorney General, Boise, for respondent. Kenneth F. Stringfield argued.
I. FACTUAL PROCEDURAL BACKGROUND
In the early evening hours of April 17, 1996, Coeur d'Alene Police Officer Paul Burke observed Thomas Michael Miller's van make a wide left-hand turn from Gibb's Tavern parking lot onto Emma Avenue in Coeur d'Alene. As the van turned onto Emma Avenue, it accelerated and the tires kicked gravel and debris up from the extreme right-hand side of the road. After confirming with radar that the van was traveling at a rate of 40 mph in a 25 mph zone, Officer Burke activated his overhead lights and the driver of the van pulled over.
Officer Burke asked Miller for his driver's license, registration and proof of insurance. Officer Burke testified that in speaking with Miller, he observed that Miller's eyes were glassy, droopy and bloodshot, and that Miller's speech was slurred. These observations led the officer to believe that Miller was under the influence of alcohol and/or drugs. This belief was bolstered by Miller's admission that he had consumed a beer. Officer Burke proceeded to administer a number of field sobriety tests. Miller was unable to successfully complete the tests and refused to submit to evidentiary testing to determine his blood alcohol content. Officer Burke then arrested Miller for driving under the influence of alcohol (DUI), I.C. § 18-8004, as well as driving without privileges. The case was eventually bound over to the district court and an information filed charging Miller only with felony DUI. Miller pled not guilty and the case was set for jury trial to commence on December 20, 1996. Following voir dire and jury selection, the prosecutor informed the court that Officer Burke, the state's key witness, would be unable to be at the trial due to an illness. The prosecutor requested a continuance and defense counsel objected, arguing that the defense was ready to proceed, the jury had been selected, and witnesses were present and ready to testify. The court granted the continuance, noting that the speedy trial time had yet to expire and that the resulting inconvenience did not rise to the level of prejudice sufficient to deny Miller due process. The jury panel was excused prior to being formally sworn to try the case and the trial rescheduled for January 16, 1997.
On January 16, a new jury was selected and trial was held. Both Officer Burke, the arresting officer, and Officer Demetre, his backup, testified at the trial. After the state rested, the jury heard testimony from Brian Casey, a patron at the tavern, and Mary Graddy, the bartender. Mr. Casey testified that he saw Miller the evening of his arrest and that in his opinion, Miller was not under the influence when he left the bar. Ms. Graddy testified that she served Miller only two and one-half beers the evening of his arrest.
As a final witness, the defense attempted to call Mark Durant, an investigator with the public defender's office. The prosecutor objected on the ground that the witness had "not been revealed in any discovery. We have had no indication that this individual was going to be called." Defense counsel informed the court that a supplemental discovery response was filed on January 10, 1997, listing Durant as a witness. The prosecutor asserted that he had not received the supplemental discovery and objected to the witness testifying due to lack of notice. The prosecutor stated: "And even if he did file it, the State didn't receive it. Now he wants to call a surprise witness, that's exactly what the rules are about." The court noted that Miller's supplemental discovery response had in fact been filed with the court on January 10, 1997, together with a certification of service indicating that a copy of the response was also placed in the interoffice mailbox of the Kootenai County prosecutor on the same date. Because it appeared that the prosecutor had received a copy of the supplemental response listing Durant as a witness, the court permitted him to testify. However, once it became apparent that Durant would be giving testimony as an "expert," the court sustained the prosecution's objection to any further testimony by the witness.
Thereafter, the defense rested and the jury returned a verdict finding Miller guilty. On April 18, 1997, Miller was sentenced to serve a unified five-year sentence, with one year fixed, and the court retained jurisdiction.
Miller subsequently completed his rider and was placed on probation.
Miller appeals, asserting that the district court abused its discretion in excluding his defense witness from testifying. We agree, and remand the case for a new trial.
Because our review of the trial court's decision to exclude a defense witness from testifying on the basis of late disclosure is dispositive of this appeal, we do not address Miller's argument that the court abused its discretion in granting the state's motion for a continuance of the first scheduled trial.
II.
ANALYSIS
Miller argues that the trial court abused its discretion in excluding Durant from testifying rather than imposing a less severe sanction. Specifically, he asserts that the court failed to evaluate the prejudice the state might suffer and whether any remedies short of witness preclusion were available. Miller notes that the court could have granted the state a brief continuance to draw upon its wealth of experts and officers to rebut Durant's testimony.
Upon written request by the prosecutor, Idaho Criminal Rule 16 requires the defendant to furnish the state a list of the names and addresses of witnesses the defendant intends to call at trial. I.C.R. 16(c)(3). A written response to a discovery request must be served within fourteen (14) days of service of the original request. I.C.R. 16(e). Once the prosecutor requests disclosure of such information, the subsequent discovery of additional evidence or witnesses prior to or during trial is subject to automatic discovery pursuant to the prior request. I.C.R. 16(I). The failure to comply with a discovery request is grounds for the imposition of sanctions by the court. I.C.R. 16(e)(2).
When a Rule 16 violation involves the late disclosure of a witness, it is within the trial court's discretion to determine whether the late-disclosed witness will be permitted to testify at trial. State v. Lamphere, 130 Idaho 630, 633, 945 P.2d 1, 4 (1997). Although drastic, the exclusion of a witness is one of many permissible remedies available for a discovery violation and is reviewed on appeal for an abuse of discretion. State v. Winson, 129 Idaho 298, 303, 923 P.2d 1005, 1010 (Ct.App. 1996). In determining whether the remedy fashioned by the trial court constitutes an abuse of discretion, this Court considers whether the court correctly perceived the issue as one of discretion, whether the court acted within that discretion and consistent with legal standards, and whether the court reached its decision through an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
After defense counsel called Durant to testify, the prosecutor objected on the basis of nondisclosure of the witness. The trial court initially permitted Durant to take the stand, acknowledging the defense's supplemental discovery response and certificate of service on January 10. When it became apparent that Durant would be giving "expert" testimony, the prosecutor again objected and requested the opportunity to address the court. Outside the presence of the jury, the prosecutor elaborated on his objection:
What counsel is doing here, I assume, is laying a foundation to try to get this witness to testify as an expert. The State is highly prejudiced in that this witness was not revealed, this witness was not revealed as an expert. This witness should not be allowed to testify. And it becomes increasingly apparent why counsel agreed to allow the State's witness to fly back last night so that we wouldn't rebut that evidence. What they've done is brought in a surprise witness, they're going to call him what they want to call him, they're trying to qualify him as an expert and argue him as an expert to touch on the foundations regarding the field sobriety examinations, and the State is highly prejudiced.
Following this argument defense counsel explained that because Durant has expertise and experience in field sobriety evaluations, he would be offering his opinions regarding the efficacy of the field sobriety tests, as administered by Officer Burke. Defense counsel further noted that as soon as the decision was made to call Durant as a witness, an immediate supplemental response was filed notifying the prosecutor that Durant would testify.
The court sustained the prosecutor's renewed objection and excluded Durant as a witness, concluding:
It's basically a matter of whether it's fair to allow this man to go ahead and testify in view of the fact that the disclosure of him as a witness was made basically less than a week before the start of the trial. That's really what I have to address here. That's why I said I'll allow him to take the stand and basically testify because I have no idea what you ask him to come up and testify to.
And now it appears to me what you're going to do is basically utilize him strictly as an expert witness. And I think there is a great difference between an expert witness and just a witness that's going to testify to a factual situation because the other side obviously then doesn't have the opportunity to essentially meet that. And given the fact that this was filed on the 10th, even assuming that it was on the 10th that the prosecutor's office got this thing, that's basically six days before we started the trial. I don't think that's a timely disclosure of an expert witness.
So. I'm going to sustain the objection.
Thereafter, the defense made an offer of proof. Counsel asserted that Durant, as a former law enforcement officer, would offer testimony to show that: (1) Miller's vehicle was not traveling at 40 mph; (2) Officer Burke did not follow Miller's vehicle for a distance great enough to observe any impairment that would justify a stop; (3) the one leg stand field sobriety evaluation Officer Burke conducted was unreliable and could not be performed by Durant when sober; and (4) the toe to heel test results were borderline with respect to impairment. While the trial court explicitly recognized the significance of this proposed testimony, it nevertheless excluded Durant as a witness:
Frankly, I can see where it would be advantageous to the defense to have that testimony. But on the other side of the coin, fair is fair. I just don't think you can spring an expert with that sort of testimony. On the other side, I don't care whose side it is, without giving the chance to at least meet it. And they're not given that chance. Sustained.
When rendering its decision concerning the admissibility of Durant's testimony, the trial court did not have the benefit of recent appellate decisions in State v. Harris, 1998 WL 394900, 98.15 ICAR 651 (Ct.App. 1998), petition for review accepted, No. 25009 (Idaho S. Ct. Oct. 7, 1998), and State v. Lamphere, 130 Idaho 630, 945 P.2d 1 (1997). In Harris, defense counsel inadvertently failed to disclose the identity of a defense witness and then attempted to call the witness at trial. The trial court found the nondisclosure to be inadvertent but nevertheless excluded the witness from testifying as a sanction for the discovery violation. On appeal, this Court held that because the district court failed to evaluate the prejudice suffered by the state beyond the obvious fact that the state did not have an opportunity to interview the witness and because the district court failed to consider the defendant's right to receive a fair trial and whether a less severe sanction would be appropriate under the circumstances, the district court abused its discretion. Compare State v. Byington, 1998 WL 272631, 98.12 ICAR 483 (Ct.App. 1998), petition for review accepted, No. 23273 (Idaho S. Ct. June 23, 1998) (trial court's decision to allow material state witness to testify at defendant's trial despite the state's failure to disclose that witness until the first week of trial, upheld; defendant failed to carry burden to show that his substantial rights were prejudiced by nondisclosure of the witness).
In Lamphere, the Idaho Supreme Court reviewed the trial court's exclusion of a defense witness who was not disclosed to the prosecutor until five days before trial. The state objected to the witness's testimony but did not show how it had been prejudiced by the late disclosure, and the trial court did not engage in weighing the defendant's right to a fair trial before concluding that exclusion was the proper remedy. For these reasons, the Court determined that the trial court abused its discretion in excluding the defense witness.
Similarly, in State v. Winson, 129 Idaho 298, 923 P.2d 1005 (Ct.App. 1996), this Court reviewed the trial court's decision to remedy defense counsel's discovery violation through witness exclusion. Defense counsel failed to disclose two witnesses until the day before trial. This Court determined that because the trial court had imposed the most severe sanction without considering whether the sanction penalized the individual responsible for the violation and without considering whether the state had been prejudiced by the late disclosure, the trial court abused its discretion. See also State v. Stradley, 127 Idaho 203, 899 P.2d 416 (1995).
Here, the trial court determined that given the late disclosure of Durant as a witness and the state's inability to meet his testimony, it would not be fair to allow Durant to testify. In making this determination, the court relied on the prosecutor's assertion that the state did not have the opportunity to interview Durant and that Officer Burke, the only person who could rebut Durant's testimony, had left the jurisdiction. However, based on the offer of proof, Durant's testimony would involve matters that virtually any officer experienced in conducting field sobriety tests could rebut. It should also be noted that unlike the rules of civil procedure, the discovery provisions of the Idaho Criminal Rules make no distinction between lay and expert witnesses, except for the disclosure of reports and/or examinations. See and compare I.C.R. 16 with I.R.C.P. 26(b)(4).
In addition, although the trial court acknowledged that Durant's testimony would be beneficial to the defense, it did not weigh the prejudice suffered by the state against Miller's right to receive a fair trial in exercising its discretion to exclude Durant as a witness. Nor did the court consider whether a less severe sanction, such as a short continuance, would have eliminated the prejudice to the state by providing it with an opportunity to interview Durant, locate another rebuttal witness, and/or fly Burke back at the expense of the defense. This Court has previously held that it is incumbent upon the trial court, in its exercise of discretion, to consider the imposition of alternative discovery sanctions, and is not limited to those suggested by the attorneys. Winson, 129 Idaho at 303, 923 P.2d at 1010.
This case involves the late disclosure of a witness six days before trial, not a total failure to disclose. As such, the prosecution's claim of complete surprise is belied by the fact that Durant had been disclosed as a witness almost one week before trial. The prosecution's failure to review its own file prior to trial should not factor into its claim of prejudice to deny the testimony of a late-disclosed witness. Moreover, Durant's address was listed as that of the office of the Kootenai County Public Defender, making him readily available to the prosecution.
For these reasons, we conclude that the district court abused its discretion by excluding Durant's testimony as a sanction for the discovery violation. This conclusion, however, does not end our analysis.
The state asserts that even if the trial court abused its discretion in excluding Durant as a witness, such error was harmless. Specifically, the state argues that because Durant's testimony would only consist of his observations of the videotape of Miller's arrest and because the tape was admitted in evidence, there is no reasonable doubt that the jury would have reached the same result even if Durant had testified.
Pursuant to Idaho Criminal Rule 52, "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." In evaluating whether an error should be disregarded as harmless, we inquire "whether it appears from the record that the error so contributed to the verdict as to leave the appellate court with a reasonable doubt that the jury would have reached the same result had the error not occurred." State v. Carpenter, 113 Idaho 882, 883, 749 P.2d 501, 502 (Ct.App. 1988), citing State v. Hall, 111 Idaho 827, 727 P.2d 1255 (Ct.App. 1986).
Although the videotape of Miller's arrest was admitted in evidence, Durant's critique of the field sobriety tests and his opinions regarding the events depicted in the tape would be informed by eighteen years of experience and specialized background in law enforcement. Durant's analysis of Officer Burke's decision to pull Miller's vehicle over and his analysis of Officer Burke's administration of the field sobriety tests could therefore carry more weight than that of a layperson. See Idaho Rule of Evidence 702. Even the district court acknowledged that Durant's testimony would be advantageous to Miller's case. Given these facts, we cannot conclude beyond a reasonable doubt that the jury would have found Miller guilty if Durant had been permitted to testify. Thus, the court's error in excluding Durant as a witness was not harmless.
III.
CONCLUSION
We vacate Miller's judgment of conviction and remand the case for a new trial.
Chief Judge LANSING and Judge Pro Tem LEGGETT, CONCUR.