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NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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Courts:
303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ROBERT LEO HARRIS JR., | ) |
| ) Court of Appeals No. A-9548 | |
| Appellant, | ) Trial Court No. 1JU-04-925 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2190 October 31, 2008 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Juneau, Larry R. Weeks, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. W.
H. Hawley Jr., Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
The primary issue presented in this appeal is whether,
and under what circumstances, a trial judge has the authority to
exclude or restrict expert testimony offered by the defendant in
a criminal case if the judge finds that the defense attorney has
willfully (that is, purposely) violated the duty imposed by
Alaska Criminal Rule 16(c)(4) to disclose that evidence before
trial.
Under federal law, a judge clearly has this authority.
In Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d
798 (1988), the United States Supreme Court upheld a trial judges
exclusion of a defense witness after the defense attorney
willfully violated the duty under Illinois law to disclose this
witness.1 The defendant in Taylor argued that the Sixth
Amendment absolutely barred the states from excluding potentially
exculpatory evidence as a penalty for a discovery violation, but
the Supreme Court rejected that contention.2 The defendant in
Taylor also argued that it was fundamentally unfair to visit the
sins of the lawyer upon [the] client.3 The Supreme Court
rejected that contention as well:
Putting to one side the exceptional cases in
which counsel is ineffective, the client must
accept the consequences of the lawyers
decision to forgo cross-examination, to
decide not to put certain witnesses on the
stand, or to decide not to disclose the
identity of certain witnesses in advance of
trial. In this case, [the] petitioner has no
greater right to disavow his lawyers decision
to conceal [the witnesss] identity until
after the trial had commenced than he has to
disavow the decision to refrain from adducing
testimony from the eyewitnesses who were
[properly] identified [before trial].
Taylor, 484 U.S. at 418, 108 S.Ct. at 658.
Alaska Criminal Rule 16(c)(4) the
rule that governs a defendants duty to
disclose expert testimony to the government
before trial also explicitly grants trial
judges the authority to exclude the expert
testimony if the judge concludes (1) that the
defense attorney has violated the duty of pre-
trial disclosure, and (2) that a continuance
is not an adequate remedy for the defense
attorneys violation:
Failure to provide timely disclosure under
this rule shall entitle the prosecutor to a
continuance. If the court finds that a
continuance is not an adequate remedy under
the circumstances of the case, the court may
impose other sanctions, including prohibiting
the defendant from calling the expert at
trial.
In the present appeal, the
defendant makes alternative arguments.
First, the defendant argues that his trial
attorney did not willfully violate the duty
of disclosure imposed by Criminal Rule
16(c)(4). But this is a question of fact.
The trial judge expressly found that the
defense attorney acted willfully i.e., that
he knowingly violated the duty of disclosure
with a conscious motive to handicap the State
at trial. The record supports this finding.
Next, the defendant argues that
even if his attorney willfully violated
Criminal Rule 16(c)(4), the trial judge
abused his discretion when the judge
concluded that the attorneys violation of the
rule could not be adequately remedied by a
continuance. But as we explain in this
opinion, the defendants trial had previously
been continued, several months before, to
give the defense attorney time to comply with
Criminal Rule 16(c)(4). Under the
circumstances presented here, it was not an
abuse of discretion for the trial judge to
conclude that another continuance was not
adequate to cure the prejudice to the State
and to ensure that there would be no further
violations.
Finally, the defendant asks us to
reject Taylor as a matter of state
constitutional law, and to declare that
Alaska Criminal Rule 16(c)(4) is
unconstitutional to the extent that it
authorizes exclusion or restriction of expert
testimony as a sanction for a willful
discovery violation. In other words, the
defendant asks us to hold that, under the
Alaska Constitution, it is never permissible
for a trial judge to use exclusion of
evidence as a sanction for a defense
attorneys violation of the duty of pre-trial
disclosure no matter how egregious the
violation, and no matter how much the
violation prejudices the government.
But like the statutes enacted by
the Alaska Legislature, all rules promulgated
by the Alaska Supreme Court are presumed to
be constitutional. For the reasons explained
in this opinion, we conclude that the
defendant has failed to rebut the presumption
of constitutionality that attaches to
Criminal Rule 16(c)(4).
The underlying criminal allegation
A Juneau grand jury indicted Robert Leo
Harris Jr. for both first- and second-degree
assault upon an infant. The indictment charged
that, sometime between July 1, 2003 (the date of
the infants birth) and October 13, 2003, Harris
inflicted brain injury on the infant (first-degree
assault) and also broke several of his ribs
(second-degree assault). Harris was also indicted
on a separate count of second-degree assault for
allegedly breaking the infants arm on November 7,
2003.
The baby was born on July 1, 2003 to Harris
and his girlfriend, Shannon Renton. According to
the States evidence, the baby suffered a seizure
on the afternoon of October 12, 2003. Just before
this seizure, the baby vomited, had a slight
fever, and appeared to be out of it. Then the
babys eyes rolled upward and began to flicker, the
babys fingers started jerking, and his body began
to twitch. Harris and Renton took the baby to the
hospital.
At the hospital, a pediatrician administered
anti-seizure medicine, and the babys condition
stabilized. However, during the night, the baby again
began to seize, and it took a long time to stabilize
him. The pediatrician decided to have the baby
medevacked to Seattle. In preparation for transporting
the baby, x-rays were taken. These x-rays showed that
the baby had healing rib fractures.
In Seattle, doctors confirmed that the baby
had healing fractures on at least five of his ribs.
The doctors also found signs that the baby had been
deprived of oxygen for a significant period of time,
causing severe and irreversible damage to his brain.
According to the treating physician, unless
an infant has been in a car crash or has fallen from a
great height, rib fractures of the type observed in
this case are most likely caused by non-accidental
trauma (i.e., physical abuse). Moreover, the location
of this babys fractures was typical for the fractures
caused by holding a baby and applying inappropriate
pressure to its body.
Harriss and Rentons baby was born
prematurely. At trial, a physician who reviewed the
babys x-rays acknowledged that premature babies
sometimes have problems with weak bones. However, this
physician testified that there was no evidence of any
abnormalities in this babys bones that might have
caused the rib injuries.
While the baby was being treated in Seattle,
the police interviewed Harriss daughter, A.H.. The
police asked A.H. whether she had ever seen her father
or Renton hurt the baby. A.H. said no. However, after
this first interview, A.H. told her school counselor
and another police officer that she had not told the
interviewer everything she observed.
A.H. stated that she had seen her father do
things to the baby that made her uncomfortable: she
had seen her father put the baby face down on the bed
and then push or rub the babys body into the bed for a
few seconds to get him to stop crying. She had also
seen her father push the babys chin upwards, to force
his mouth closed and muffle his crying. A.H. stated
that both she and Renton had told Harris not to do
this, but that Harris did not listen to them.
On October 29, 2003, the baby was discharged
from the hospital in Seattle into the custody of
Harriss sister, Linnea Harris. However, both Harris
and Renton lived with Linnea, so they continued to have
physical access to the baby.
On November 6, the babys guardian ad litem,
Jeanine Reep, visited Linnea Harriss home. Harris and
Renton were there when Reep arrived. The baby was
asleep for most of Reeps visit, but toward the end of
the visit the baby woke up and vomited. After Reep
left, Renton took the baby into the shower to bathe
him. According to Linnea, after this bathing was over,
Renton called Harris to come take the baby. Harris got
the baby, wrapped him in a towel or blanket, and
brought him into the living room and laid him on the
couch.
When Harris unwrapped the baby, it was
obvious that there was something wrong: the baby was
screaming and seemed to be in pain, and his arm was not
moving. Harris and his sister Linnea took the baby to
the hospital.
At the hospital, the baby was found to have a
mid-shaft fracture of the right humerus (i.e., a
fracture in the middle of his upper right arm). The
attending doctor noted that this type of injury is
consistent with the patient being grabbed in the elbow
region and ... force being applied to the humerus ...
[so that] the apex of the fracture ben[ds] outward from
the body.
Harris and Linnea denied that they had
intentionally injured the baby. Later, when Renton
arrived at the hospital, she too denied causing any
injury to the baby. Both Harris and Renton told the
doctor that, even before Reeps visit, they had noticed
that the baby was not moving his right arm, and they
called the doctors office to make an appointment.
Then, when the baby grew fussy and vomited after
feeding, and when his arm did not improve, they decided
to bring the baby to the emergency room.
A few days later, on November 12th, when
Renton was interviewed by the police, she told the
officer that she thought the fracture to the babys arm
occurred when she was bathing him in the shower, or
when she wrapped him in a towel after the shower but
she could not figure out how she had hurt him.
A grand jury indicted both Harris and Renton
on various counts of mistreating and injuring the baby.
Following a jury trial, Harris was found guilty of
assault in the third degree for breaking the babys arm.
The jury acquitted Harris and Renton of the remaining
charges.
The facts underlying the defense attorneys violation of
Criminal Rule 16(c)(4) and the superior courts pre-
trial discovery order and an explanation of the trial
judges ruling
Harriss trial was originally scheduled for
the last week in October 2004.
On August 17, 2004, Superior Court Judge
Larry R. Weeks issued an omnibus hearing order. One
section of this order set a deadline of 45 days before
trial for the State to disclose all information
concerning its expert witnesses (i.e., the information
required by Criminal Rule 16(b)(1)(B)). Another
section of this order a section that is of primary
importance to Harriss case set a deadline of 30 days
before trial for the defendant [to] make the expert
witness disclosures required by [Criminal] Rule
16(c)(4).
Alaska Criminal Rule 16(c)(4) governs a
defendants obligation to disclose expert witnesses and
the substance of their proposed testimony to the
government before trial. Here is how that duty of
disclosure is defined in the rule:
(4) Expert Witnesses. Unless a
different date is set by the court, no later
than 30 days prior to trial, the defendant
shall inform the prosecutor of the names and
addresses of any expert witnesses the
defendant is likely to call at trial. The
defendant shall also make available for
inspection and copying any reports or written
statements of these experts. For each such
expert witness, the defendant shall also
furnish to the prosecutor a curriculum vitae
and a written description of the substance of
the proposed testimony of the expert, the
experts opinion, and the underlying basis of
that opinion.
For reasons that are not pertinent
to the present appeal, after Judge Weeks
issued the omnibus hearing order, Harriss
trial was rescheduled from October 2004 to a
new starting date of January 10, 2005.
On December 2, 2004 (i.e., 39 days
before the scheduled trial date), Harriss
attorney, Assistant Public Defender Eric
Hedland, filed a notice stating that the
defense intended to rely on the expert
testimony of Dr. Janice J. Ophoven.
According to this notice, Hedland intended to
have Dr. Ophoven testify regarding [the]
possible causes of [the babys] injuries.
A copy of Ophovens curriculum vitae
accompanied this notice, but Hedland offered
no description of the substance of Ophovens
proposed testimony that is, no description
of Ophovens conclusions, nor any explanation
of the underlying bases for those
conclusions. Instead, Hedland offered the
following:
Nor [sic] report is yet available. A more
detailed description of Dr. Ophovens proposed
testimony will be provided when received.
Five days later, on December 7th,
the prosecutor sent a memo to Hedland, asking
him when the State could expect to receive
Dr. Ophovens report. The prosecutor
explained, I cannot prepare for Dr. Ophoven[s
testimony] or [investigate potential]
rebuttal without a report indicating what her
opinion is and the basis for it. The
prosecutor added, If I have not received a
written report from Dr. Ophoven by December
13, 2004 i.e., by the expiration of the 30-
day pre-trial deadline established in the
omnibus hearing order4 I will be filing a
motion with the court to preclude her
testimony.
The prosecutor waited another ten
days for a description of Dr. Ophovens
proposed testimony, or for some other
response to his memo. None arrived. On
December 17th, with Harriss trial just over
three weeks away, the prosecutor filed a
motion asking Judge Weeks to preclude the
defense from presenting Ophovens testimony.
In this motion, the prosecutor
noted that medical testimony would be a
central component of the States case against
Harris, and the prosecutor asserted that the
State had gone to considerable effort and
great difficulty [to arrange] for a number of
physicians to testify on January 11th and
12th (i.e., the second and third scheduled
days of Harriss trial). The prosecutor
further asserted that several of these
physicians were being flown to Juneau from
other states, and that a continuance of trial
was not an adequate remedy for the discovery
violation because there was a risk that the
State would lose important witnesses.
That same day December 17, 2004
Harriss attorney filed a motion to continue
the trial. In this motion, Hedland asserted
that a delay of trial was needed because his
expert, Dr. Ophoven, had just been sent the
medical records in the case, and she [would]
need more time to review the reports and
medical records to formulate an opinion.
On December 27th, Judge Weeks
conditionally granted the defense request for
a delay of the trial. (The condition was
that the parties would agree to take a video
deposition of Harriss daughter, A.H., with
the understanding that this deposition would
be admissible at Harriss trial.)
Three days later, on December 30,
2004, the parties came to court for a
hearing, and Judge Weeks explicitly warned
the defense attorney:
The Court: I will order that [the
defense] provide [the required disclosure] 30
days prior to [the trial date]. ... I will
not allow experts to testify about things
that are not provided to opposing parties in
expert reports. So, if there is no report by
30 days prior [to trial], [that expert] will
not be testifying. And [if] things [are] not
included in the reports, [those experts] wont
be testifying about those things [that are
not] in the reports. Thats the way it is.
Harriss trial was recalendared for
May 2, 2005.
On April 6, 2005, defense attorney
Hedland filed another notice that he intended
to have Dr. Ophoven give expert testimony at
Harriss trial. In this notice, Hedland
declared that Dr. Ophoven did not create a
written report. However, Hedland offered the
following description of Ophovens proposed
testimony:
Dr. Ophoven will testify that prematurely
born babies are at an increased risk for
injury during normal care because they are
weaker physically, and that babies who are
immobilized after birth are at a terrible
risk for abnormal bone strength. She will
testify that, based on her review of the
medical reports, the alleged victim here was
released from the hospital too quickly after
birth. [Dr. Ophoven] will also testify that
a child who presents with seizures is not
necessarily suffering from traumatic injury.
She will testify that estimating dates of
[bone] fractures from x-rays is an inexact
science. She will testify that babies can
asphyxiate from treatment for seizures, and
that seizures that last too long can result
in cerebral edema.
After the defense attorney filed
this notice, Harriss trial was delayed again
(because the prosecutor assigned to Harriss
case was handling another trial that was
still in progress on May 2nd). This time,
Harriss trial was rescheduled for September
12, 2005.
On August 8, 2005, Hedland sent a
memo to the prosecutor in which he offered
another description of Dr. Ophovens proposed
testimony. For purposes of later discussion,
the most important aspect of this memo is
that it contains many medical assertions and
conclusions, but it provides very little
explanation of the doctors bases for these
assertions and conclusions. Here is the text
of the memo:
Dr. Ophoven is a seizure specialist. There
are many kinds of seizures and many causes.
[The baby in this case] had an unusual kind
of seizure.
[The baby] did not receive proper care until
he arrived at Harborview [hospital in
Seattle]. [The] ER admission order says that
he [was] diagnosed with status epilepticus
and [was] suspected of having sepsis.
Untreated status epilepticus for a half-hour
or more constitutes a medical emergency.
These [sic] are many possible causes of [the
babys] seizures. [The baby] shows no brain
trauma of any kind. There is no evidence
that [the baby] suffocated.
[The babys] rib fractures and his seizures
are not related. Bone scans do not tell
[the] same story as x-rays.
The [other] doctors grand jury testimony that
premature babies do not have weaker bones is
absolutely not true. Osteopenia of
prematurity is well documented. Other
factors present here increase the risk of
accidental fractures. [During the] first
year of life, many things make a person
susceptible to seizures. Children in the
NICU [i.e., the neonatal ICU] get fractured
arms, legs, and ribs just through daily care,
because of the weakness of their bones.
Some things that could cause fractured ribs
include burping a baby, rolling over the baby
accidentally while sleeping in the same bed,
falling off of a couch, the actions of a
babysitter. Additionally, there is no
evidence of inflicted injury in either the
case of the [babys] seizures or the case of
the [babys] broken arm.
On August 29, 2005 (i.e., about two
weeks before trial), the prosecutor again
filed a motion to preclude the defense from
calling Ophoven as an expert.
In this motion, the prosecutor
noted that he still had received no report
from Dr. Ophoven. The prosecutor
acknowledged receiving Hedlands memo of
August 8th, but the prosecutor described that
memo as very uninformative because it failed
to provide adequate notice of the opinions
... that Dr. Ophoven w[ould] testify to[,] or
the basis for those opinions. The prosecutor
also noted that, because Hedlands memo was
not Ophovens report, Ophoven [was] not bound
by anything in [that memo,] and Mr. Hedland
is not available as a witness [himself].
The prosecutor asserted that
Hedlands handling of this matter in
particular, his failure ... to provide a
report by Dr. Ophoven, after obtaining a
continuance for that very purpose was a
tactical gambit designed to prevent the State
from having an effective opportunity to cross-
examine the expert.
Two days later (on August 31st),
Hedland filed an opposition to the States
motion. The majority of this opposition was
devoted to arguing that the State had failed
to live up to its own obligation to disclose
expert testimony. However, one paragraph of
the opposition did address the prosecutors
claim that there had been inadequate
disclosure of Dr. Ophovens proposed
testimony:
Mr. Harris has filed [two] written
descriptions of ... Dr. Ophoven[s testimony].
The prosecutor, in fact, attached them to his
motion. Mr. Harris also long ago provided
the [doctors] C.V.[.] Not only has Mr.
Harris complied with the rules, [but] the
state additionally has the present ability to
gather any additional information from Dr.
Ophoven ... , and it has yet the further
ability to call/consult the myriad doctors
referenced in [the] medical records [in this
case]. And the state has also cross-examined
Dr. Ophoven at least twice recently [in other
cases] in Juneau[,] and is familiar with her.
Finally, her publications are readily
available.
On Friday, September 9, 2005, with
Harriss trial set to begin the following
Monday, Judge Weeks issued an order
precluding Dr. Ophoven from testifying.
Judge Weeks began by noting that
the omnibus hearing order issued at the very
beginning of Harriss case required that
expert reports be provided by the defense 30
days before trial.
Judge Weeks then noted that one of
the purposes of Criminal Rule 16 was to
require [a] meaningful exchange of expert
information between the parties. Judge Weeks
further noted that the superior court judges
of Juneau had traditionally enforced this
rule firmly. The judge reminded Hedland
that, in his last jury trial before Judge
Weeks, the State was precluded from offering
an expert on domestic violence because no
report had been submitted, even though
everyone knew what the witness would say.
Judge Weeks next reminded Hedland
that, the previous December, Hedland had
sought a continuance of Harriss trial for the
very purpose of giving Dr. Ophoven a better
opportunity to prepare as an expert witness
and that, in his pleading, Hedland had told
the court that, as of December 17, 2004, all
medical records and other documents [had
been] sent to ... Dr. Ophoven.
The judge noted that he had delayed
the trial so that Dr. Ophoven would have a
chance to testify for the defense. The judge
also noted that, when he granted the
continuance, he expressly warned Hedland that
the defense would have to provide the State
with a report for each and every one of its
expert witnesses, and that these reports had
to be filed 30 days before trial. And the
judge quoted what he had said at that hearing
on December 30, 2004: if there is no report
by 30 days prior [to trial], [that expert]
will not be testifying.
Judge Weeks then concluded:
Trial starts on Monday. There is no
report from Dr. Ophoven. The only apparent
reason why a report is not available nine
months later [i.e., nine months after Harris
sought a delay of the trial for the express
purpose of procuring Dr. Ophovens testimony]
is the attempt to obtain an unfair tactical
advantage. The court finds that [granting
another] continuance is not an adequate
remedy. The incidents [being litigated] are
alleged to have occurred nearly two years
ago[,] and the case is over a year old.
Numerous other experts have been noticed to
testify.
The motion to preclude Dr. Ophovens
testimony is granted on this record.
Later that same day, Hedland filed
a motion asking Judge Weeks to reconsider.
In that motion, Hedland argued that, even
though he had not provided the State with a
written report from Dr. Ophoven, he
nevertheless had complied with Rule 16(c)(4)
because he had filed two written descriptions
of Dr. Ophovens proposed testimony. (Hedland
was apparently referring to the notice dated
April 6, 2005 (quoted above), and to the memo
addressed to the prosecutor dated August 8,
2005 (also quoted above).)
Hedland told Judge Weeks that, to
the extent that [the description of the
proposed testimony] needs to be signed by
Dr. Ophoven, that can be readily accomplished
[now].
In the alternative, Hedland argued
that his client, Harris, should not be
penalized because of Hedlands failure to
comply with Rule 16(c)(4) and Judge Weekss
previous orders. Hedland contended Harris
had a right to present Dr. Ophovens
testimony, and that it would be improper to
bar Harris from presenting this testimony as
a result of Hedlands errors as counsel.
On the morning of Monday, September
12th that is, on the first business day
after Judge Weeks issued his order, and on
the morning when jury selection for Harriss
trial was scheduled to commence Hedland
filed Dr. Ophovens written report.
This report (which bears the date
of September 12th) details Dr. Ophovens
findings and opinions in two-and-a-half pages
of single-spaced text, using a very small
font. The font used in the doctors report is
either 9- or 10-point, and there are 60 lines
of text to the page (not counting the line
that bears the footer and the page number).
By comparison, the font used in this opinion
is 13.5-point, and there are 23 or 24 lines
of text to the page. If the text of
Dr. Ophovens report were formatted like the
text of this opinion, the doctors findings
and opinions would occupy approximately seven
pages.
That afternoon, Judge Weeks heard
argument on the defense attorneys request for
reconsideration of his order precluding Dr.
Ophovens testimony. The prosecutor pointed
out that Judge Weeks had been very clear that
no expert would be allowed to testify for
either side unless that experts report was
provided to the other side within the
deadlines set by the judge.
The prosecutor also pointed to the
fact that Dr. Ophoven had generated a lengthy
and detailed report so quickly after Judge
Weeks issued his order precluding her
testimony. The prosecutor argued that this
show[ed] how easy it [was all along] to
produce a report from th[is] witness.
Finally, the prosecutor argued that
the State would be prejudiced if Dr. Ophoven
were allowed to testify, because it would be
impossible for the prosecutor to conduct the
trial and, at the same time, get
knowledgeable about all those issues [that
the doctor] appears to raise in that report
and prepare rebuttal [on those issues].
Judge Weeks and the prosecutor then
discussed a number of medical issues that
appeared to have been raised for the first
time in Dr. Ophovens report.
When Judge Weeks asked Hedland to
respond, Hedland declared that he had
consulted another attorney in the Public
Defender Agency, and that this attorney had
assured him that the two documents he had
already produced the notice dated April 6,
2005, and the memo to the prosecutor dated
August 8, 2005 were sufficient to satisfy
his duty of disclosure. Hedland told Judge
Weeks, I thought a proffer from [a] lawyer
was an expert report. (Emphasis added)
Hedland also declared that [he had]
learned since then that [Judge Weeks] had
said, on this case specifically, that there
[was] supposed to be a written report by the
doctor. (Emphasis added)
(It appears, from this last
statement, that Hedland was asserting that he
only learned of Judge Weekss order after he
submitted the notice in April 2005 and wrote
the memo to the prosecutor in August 2005.
If this is what Mr. Hedland meant, his
assertion is inexplicably at variance with
the facts. Hedland was present in court on
December 30, 2004, when Judge Weeks orally
told the parties that no expert witness would
be allowed to testify in this case unless the
experts written report was provided to the
other side.)
Finally, Hedland argued that any
sanction ... should be leveled against the
lawyer (that is, against himself) because
preclusion of Dr. Ophovens testimony would
deprive Harris of his right to a fair trial.
At the end of the parties
arguments, Judge Weeks took the matter under
advisement until the following morning.
However, before court adjourned, Judge Weeks
asked the prosecutor to come prepared to
discuss whether the State would still be
prejudiced if (1) the judge precluded Dr.
Ophoven from testifying about any matter that
was not contained in Hedlands memorandum of
August 8th to the prosecutor; (2) the judge
allowed the prosecutor to examine the States
own experts about the matters contained in
Hedlands memorandum (in other words, the
prosecutor would not have to wait for the
defense to present testimony on those
matters, and then have to re-summon his
expert witnesses to offer rebuttal); and (3)
the judge ordered the defense to make Dr.
Ophoven available for a pre-testimony
deposition sometime during the week.
When the parties assembled in court
the next morning, the prosecutor indicated
that he was agreeable to going forward under
the conditions that Judge Weeks had outlined
with the added proviso that, if he found it
necessary to present rebuttal testimony from
his out-of-state expert witnesses, the
defense would agree that this rebuttal
testimony could be presented telephonically.
At this point, Hedland demanded to
know the precise justification for these
proposed limits on the defense case, and
these proposed accommodations to the State.
Judge Weekss response is the central factual
ruling in this case. Here is what Judge
Weeks said:
The Court: Heres what Ill find and if
you need more, Ill try to do more:
I believe that your notice under the
rule was inadequate. I dont believe that it
[disclosed] the basis for [the doctors]
opinion, and I dont believe that it provided
[all of] the opinions. I [further] believe
that [your notice] was in violation of this
Courts order.
[In addition,] I believe that [this] was
an attempt [on your part] to obtain a
tactical advantage during trial.
I think that Dr. Ophovens [late-
provided] report significantly substantiates
that finding. I believe that the detail of
her report makes it clear that the State was
going to be sandbagged. ...
I believe that [this course of conduct]
justifies not allowing [Dr. Ophoven] to
testify at all. [But] I [have] tried to make
these limited accommodations in order to make
sure that the clients [i.e., Harris and his
co-defendant Renton] are not substantially
damaged by [your] attempts to obtain tactical
advantage.
. . .
I [further] believe that the State would
be substantially prejudiced if [Dr. Ophoven]
were allowed to testify to those things in
that report [that arent included in your
previous memorandum].
Defense Attorney: And the Court is
making a finding that a continuance isnt an
adequate remedy for the State?
The Court: I have [already] made that
[finding].
Following more discussion by the
parties, Judge Weeks issued an order along
the lines outlined in the preceding
discussions. That is, (1) the judge ruled
that Dr. Ophoven would not be allowed to
testify about any matter that was not
contained in Hedlands memo to the prosecutor;
(2) the judge ordered the defense to make
Ophoven available for a deposition by the
close of business the following day; (3) the
judge ruled that the prosecutor would be
allowed to examine the States own experts
about the matters contained in Hedlands
notice and letter on direct examination,
without having to wait for the defense to
present testimony on those matters and then
re-summon the expert witnesses to offer
rebuttal; and (4) the judge ruled that if the
State needed to present expert rebuttal
testimony on the matters contained in
Hedlands memo, that testimony could be given
telephonically. The judge later reduced this
order to writing.
Harriss four arguments as to why the trial judge
committed error when he restricted the scope of the
evidence that Harriss attorney could introduce at trial
On appeal, Harris makes four different
arguments as to why Judge Weeks committed error when he
restricted Dr. Ophovens trial testimony to the matters
revealed in Hedlands August 2005 memo to the
prosecutor. (Harris does not challenge the other
provisions of Judge Weekss order.)
The first of these arguments is that Judge
Weeks actually committed error nine months before
Harriss trial in December 2004, when Judge Weeks told
the parties that neither of them would be allowed to
present expert testimony unless they produced that
experts report to the opposing attorney within the time
limits set forth in the omnibus hearing order (i.e., 45
days before trial for the State, and 30 days before
trial for the defense).
Harriss other three arguments are direct
attacks on Judge Weekss ruling of September 12, 2005
i.e., the ruling issued on the first day of trial,
which restricted the scope of Dr. Ophovens testimony.
Harriss second argument is that, when Judge
Weeks restricted the scope of Dr. Ophovens testimony,
the judge violated Alaska law by imposing this type of
sanction (i.e., exclusion or restriction of evidence)
when there was no proof that the defense had willfully
violated its pre-trial disclosure obligations.
Harriss third argument is that, even if
Hedland willfully violated his disclosure obligations,
it was improper for Judge Weeks to restrict Dr.
Ophovens testimony because, according to Harris,
lesser sanctions would have been sufficient to cure the
problem.
Fourth and finally, Harris argues in the
alternative that, to the extent current Alaska law
supports Judge Weekss ruling, that law is
unconstitutional. Harris contends that, no matter how
egregiously a defense attorney might violate the
disclosure obligations imposed by Criminal Rule 16(c),
and no matter how much prejudice that violation might
cause to the government and to the judicial process,
the Alaska Constitution forbids a judge from
restricting a criminal defendants presentation of
evidence as a sanction for the violation, at least
absent proof that the defendant was personally involved
in the discovery violation.
Harriss argument that Judge Weekss order of December
30, 2004 was, in effect, a local rule of practice and
that this local rule was unlawful because it conflicted
with the provisions of Criminal Rule 16(c)(4)
In Romero v. Alaska Financial Services, Inc.,
873 P.2d 1278, 1280 (Alaska 1994), the Alaska Supreme
Court declared that trial courts are prohibited from
adopting local practices that conflict with the rules
codified in the Alaska Rules of Court. Harris contends
that Judge Weeks violated this principle when, on
December 30, 2004, the judge ordered that no expert
witness would be allowed to testify in this case unless
the proponent of the experts testimony provided the
experts report to the other side.
Harris did not raise this claim of error
during the trial court proceedings. In fact, he never
challenged Judge Weekss authority to issue the order of
December 30th on this or any other ground. Thus,
Harris failed to preserve this issue for appeal. And,
to the extent that Harris is nevertheless entitled to
raise this claim as a matter of plain error, we find no
plain error.
Criminal Rule 16(c)(4) declares that, with
respect to any expert witnesses that the defendant is
likely to call at trial,
[t]he defendant shall ... make available for
inspection and copying any reports or written
statements of these experts. For each such
expert witness, the defendant shall also
furnish to the prosecutor a curriculum vitae
and a written description of the substance of
the proposed testimony of the expert, the
experts opinion, and the underlying basis of
that opinion.
From the wording of this portion of
Rule 16(c)(4), it appears that the rule
requires the defense to disclose two things.
First, if the expert has produced any report
or written statement, that report or written
statement must be disclosed. Second,
regardless of whether the expert has produced
a report or written statement, the defense
must also furnish ... a written description
of the substance of the proposed testimony of
the expert, the experts opinion, and the
underlying basis of that opinion. (Emphasis
added)
To our knowledge, no Alaska
appellate case has presented the issue of
whether a defense attorney is required to
separately provide a written description of
the substance of the expert witnesss proposed
testimony (including the experts opinion and
the underlying basis for that opinion) if
that expert witness has already furnished a
written report that fully describes these
same things. For present purposes, we will
assume that this is an unintended redundancy.
But even employing this assumption,
Rule 16(c)(4) is clearly designed to require
defendants to disclose the substance of the
experts proposed testimony one way or another
and not just the basic subject matter of that
testimony, but the experts specific opinions
and conclusions, as well as the underlying
bases of those opinions and conclusions.
This disclosure may take the form of a
written report or statement from the expert
witness, or a written description of the
proposed testimony by the defense attorney,
or (conceivably) both. But the disclosure
must be made.
Here, Harriss attorney failed to
make the required disclosure. Judge Weekss
decision to limit the scope of Dr. Ophovens
testimony was not based on Hedlands failure
to follow the particular procedures specified
in the discovery order as, for instance, if
Hedland had filed his own complete written
description of Dr. Ophovens conclusions and
the bases for those conclusions, instead of
complying with Judge Weekss directive to file
a written report from Ophoven herself.
Rather, Judge Weekss ruling was based on the
fact that Hedland flouted his discovery
order. The judge restricted the scope of Dr.
Ophovens testimony because Hedland never
disclosed the full substance of the doctors
proposed testimony before trial.
(As explained above, full
disclosure was not made until Hedland
submitted the doctors written report on the
first morning of trial.)
Thus, for purposes of resolving
Harriss case, it is irrelevant whether it is
consistent or inconsistent with Rule 16(c)(4)
for a trial judge to insist on an exchange of
written reports from the experts themselves,
rather than allowing the attorneys to
exchange their own written descriptions of
the experts conclusions and reasoning. And
because this issue is irrelevant to the
resolution of Harriss case, Judge Weekss
order of December 30, 2004 can not constitute
plain error. Proper or improper, the
issuance of this order did not affect the
outcome of the proceedings. Rather, Hedlands
misconduct was in failing to disclose the
full substance of Dr. Ophovens proposed
testimony in any form.
Harriss argument that Alaska law forbids a judge from
excluding evidence as a sanction for a pre-trial
discovery violation unless the violation was
willful
Harris next argues that Alaska law does not
allow a judge to restrict or exclude evidence as a
sanction for a discovery violation unless that
violation was deliberate and unequivocal. According to
Harris, this sanction can be imposed only when the
offending counsel figuratively thumbed his nose at
[the] applicable requirements of pretrial discovery and
demonstrated deliberate ... disregard of the courts
authority.
Harris contends that Judge Weeks violated
this tenet of Alaska law when he restricted the scope
of Dr. Ophovens testimony as a sanction for Hedlands
violation of his pre-trial disclosure obligations
because, according to Harris, there was no proof that
Hedland deliberately violated these obligations.
Harriss terminology is somewhat at variance
with the language employed in the Alaska cases on this
subject, but the principle he relies on is basically
correct. The Alaska Supreme Court has repeatedly
declared that even when there is a clear violation of
the discovery rules, a judge should not use that
discovery violation as a basis for granting judgement
to the non-offending party, or as a basis for excluding
crucial evidence (i.e., evidence so important that its
exclusion will essentially decide a central issue in
the litigation one way or the other), unless the
violation was willful.
In this context, a violation is not willful
if it arises from a mistaken but good-faith resistance
to the discovery obligation, or if the party was unable
to comply with the discovery obligation in a timely
manner, or if the violation consisted merely of
inordinate delay in complying with the obligation.
Rather, a violation is willful for these purposes only
if it was done with conscious intent to impede
discovery. Maines v. Kenworth Alaska, Inc., 155 P.3d
318, 325 (Alaska 2007); Lee v. State, 141 P.3d 342, 349
(Alaska 2006); Honda Motor Co., Ltd. v. Salzman, 751
P.2d 489, 492-93 (Alaska 1988).
However, when a party fails to comply with a
discovery obligation, the burden of proving non-
willfulness is on the party who failed to comply.5 The
rationale for placing the burden of persuasion on the
non-complying party is that [t]he reasons for [the]
noncompliance are facts peculiarly within [the
offending partys] knowledge. Honda Motor Co., 751 P.2d
at 492.
In Harriss brief to this Court, he argues
that Hedlands failure to disclose the substance of Dr.
Ophovens intended testimony until the first morning of
trial was not willful.
Harris points out that, when Judge Weeks
asked Hedland to explain his conduct, Hedland asserted
that (1) he honestly believed that he had complied with
his discovery obligation by sending the notice to the
court in April 2005, followed by his memo to the
prosecutor in August 2005; and that (2) he checked with
his supervisor in the Public Defender Agency, who
assured him that these actions constituted compliance
with Rule 16(c)(4). In addition, Harris points out
that Hedland did, in fact, ultimately provide Dr.
Ophovens written report to the State.
The problem with this argument is that Judge
Weeks heard Hedlands protestations of good faith, and
he rejected them.
We quoted Judge Weekss ruling earlier in this
opinion. As we explained, Judge Weeks expressly found
that Hedlands pre-trial description of Dr. Ophovens
proposed testimony violated both Criminal Rule 16(c)(4)
and Judge Weekss order regarding pre-trial disclosure
of expert witnesses because Hedland did not fully
disclose the doctors opinions, nor did he disclose the
bases for those opinions.
Judge Weeks further found that this non-
disclosure was an attempt [on Hedlands part] to obtain
a tactical advantage during trial. The judge concluded
that Hedlands sudden disclosure of a lengthy and
detailed report from Dr. Ophoven on the first morning
of trial significantly substantiate[d] the conclusion
that Hedland had been acting in bad faith. Judge Weeks
declared, I believe that the detail of [Dr. Ophovens]
report makes it clear that the State was going to be
sandbagged. In other words, Judge Weeks found that
Hedland purposely withheld Dr. Ophovens report with the
intent to defeat the States right of discovery and to
unlawfully put the State in a position of disadvantage
at trial.
We are obliged to uphold Judge Weekss
findings of historical fact i.e., the judges findings
regarding Hedlands intentions and motives unless
Harris shows these findings to be clearly erroneous.
He has not done so.
Because Judge Weeks found that Hedland was
acting in bad faith i.e., acting with the conscious
intent to impede pre-trial discovery the judge was
entitled to consider restriction or exclusion of
evidence as a sanction for the discovery violation.
Harriss argument that, even if Hedland acted willfully,
Judge Weeks was still required to impose lesser
sanctions because lesser sanctions would have been
sufficient
Harriss third argument is that, even if
Hedland willfully violated his obligation to disclose
the full substance of Dr. Ophovens intended testimony,
it was still improper for Judge Weeks to restrict
Ophovens testimony because, according to Harris,
lesser sanctions would have been sufficient to cure the
prejudice to the State and to ensure future compliance
with pre-trial disclosure obligations.
The Alaska Supreme Court has said that, even
when a party has willfully violated their duty of pre-
trial disclosure, the trial judge should not impose a
sanction that has the effect of establishing or
dismissing a claim or defense unless the judge has
first considered whether lesser sanctions would
adequately cure the prejudice to the other party and
ensure compliance with the discovery rules in the
future.6 This same limitation applies to orders that
preclude an expert witness from testifying, if the
preclusion of the experts testimony effectively
determin[es] a central issue in the litigation.7
Regarding the first prong of this test (i.e.,
whether a lesser sanction would be adequate to cure the
prejudice to the other party), the Alaska Supreme Court
has explained that the primary question to be answered
is whether it would be fair to force the non-offending
party to litigate the merits of the claim or issue
involved without disclosure of the evidence [that] the
court ... ordered the [offending] party to produce.
Lee, 141 P.3d at 350; DeNardo v. ABC Inc. RVs
Motorhomes, 51 P.3d 919, 926 (Alaska 2002).
In other words, if the claim or issue could
still be fairly litigated even though the offending
party purposely withheld relevant information, then the
trial judge is not allowed to use preclusion or
restriction of this evidence as a punishment for the
discovery violation. Lee, 141 P.3d at 350; DeNardo, 51
P.3d at 926. As the supreme court stated in Johnson v.
State, 577 P.2d 230, 234 (Alaska 1978), In the absence
of ... prejudice to a party [that is] likely to have a
substantial effect on the outcome of the case, failure
of counsel to comply with discovery orders should not
be utilized as a basis for ultimate disposition of
litigation.
On the other hand, if the offending party has
purposely withheld information that is central to the
litigation of a claim or issue, so that the non-
offending partys lack of opportunity to prepare to meet
this information will substantially prejudice the
partys ability to litigate the claim or issue, then a
trial judge has the authority to restrict or preclude
the presentation of the unlawfully withheld evidence.
Lee, 141 P.3d at 350-51.
Regarding the second prong of this test
(i.e., ensuring compliance with pre-trial disclosure
obligations in the future), the supreme court has
focused primarily on whether the offending party has
displayed a pattern of non-disclosure that needs to be
deterred.8
In Lee, for example, the State brought a
consumer fraud case against the defendant, who claimed
to be marketing new technologies that would allow
people to generate electrical power for little or no
money. Lee (who was represented by counsel in the
trial court, see 141 P.3d at 353) refused to obey
discovery orders that directed him to explain his
products and technologies. Without this pre-trial
disclosure, the State had little information about Lee,
his businesses, his technologies, and his free
electricity program. Id. at 350.
In light of Lees willful failure to provide
pre-trial disclosure of this information, the trial
judge entered judgement against Lee on the issue of
whether he had committed consumer fraud and the
supreme court upheld the trial judges action.
The supreme court declared that, even in the
face of willful discovery violations, a trial judge may
not issue liability-establishing sanctions without
first exploring possible and meaningful alternatives.
Id. at 351. But the supreme court concluded that the
trial judge had not abused her discretion when she
decided that there were no viable alternatives in Lees
case. Id.
The supreme court noted that the trial judge
considered imposing fees on Lee, and considered
delaying the trial, but found those sanctions to be
inappropriate because they would not deter future
discovery violations, or they would prejudice the
State. Id. The supreme court further noted that the
trial judge had already given Lee numerous
opportunities to comply with the pre-trial discovery
order. Id.
Quoting the trial judges decision a decision
which the supreme court called a model analysis of the
pertinent factors9 the supreme court approved the
trial judges conclusion that, [while a] monetary
sanction c[ould] compensate the State for its attorneys
fees, such a sanction could not compensate for the
[States] inability to prepare its case for trial. Lee,
141 P.3d at 354.
As the supreme court explained,
The state could not take the chance that
Lee, having failed to provide adequate
discovery responses, would attempt to
demonstrate [the validity of] his
technologies and products at trial. We
assume that the science underlying the
technologies and products Lee advertised is
sufficiently complex that, without pretrial
discovery, the state would have had
inadequate time to examine and understand the
scientific principles pertinent to any
demonstration, and consequently might have
been unable to dispute whether the
demonstration was valid or the principles
were invalid. For these reasons, the
sanction imposed accepting the [States]
alleg[ation of consumer fraud] as admitted
was sufficiently tailored to the discovery
violation.
Lee, 141 P.3d at 350-51.
The supreme court also approved the
trial judges conclusion that a delay in the
trial date to allow another opportunity [for
Lee] to complete discovery [would]
prejudice[] the State, not the Defendant.
Lee, 141 P.3d at 354.
Given these circumstances, the
supreme court concluded that the trial judge
had not abused her discretion when she
entered judgement against Lee on the issue of
whether he had committed fraud.
The supreme court employed
essentially the same test and analysis when
the court upheld the imposition of litigation-
ending sanctions in Honda Motor Co., Ltd. v.
Salzman, 751 P.2d 489 (Alaska 1988):
The [record] shows beyond doubt that
[the trial judge] gave Hondas situation very
careful consideration [before imposing such a
severe sanction]. [The judge] had given
Honda several warnings, oral and written,
which Honda failed to heed. She had extended
deadlines, imposed less drastic sanctions,
and endured Hondas violations of court orders
until it became evident that this ultimate
sanction was necessary and appropriate.
Hondas contention that it fully cooperated
and made extraordinary efforts to comply with
discovery is simply contradicted by the
record. Although Honda produced some
documents and provided for the depositions of
two Japanese witnesses, the fact is that
every single court order compelling
production was violated, and the violations
simply were not adequately explained by
Honda. We cannot say that the trial court
abused its discretion in imposing this
sanction.
751 P.2d at 493.
Harris argues that, even though
this may be a proper method of analysis in
civil cases, the policies are different in
criminal cases especially when a trial judge
is considering sanctions against the
defendant. Harris asserts that, because of a
defendants constitutional right to subpoena
favorable witnesses and affirmatively present
a defense case, a trial judge should rarely
be able to order preclusion or restriction of
defense evidence under Criminal Rule
16(c)(4), even when the defense has willfully
violated the discovery rules.
It is true that, with one exception
(Johnson v. State), the supreme court
decisions we have discussed here arose in the
context of civil litigation. We further
acknowledge that in State v. Lewis, 632 P.2d
547 (Alaska App. 1981) this Courts most
comprehensive discussion of this issue to
date we declared that preclusion of
significant evidence in criminal cases was a
disfavored remedy that should be used ...
only in rare situations. Id. at 550.
However, Lewis was decided in 1981.
At that time, the sole portion of Criminal
Rule 16 that addressed potential sanctions
and remedies for discovery violations was
subsection (e):
(1) Failure to Comply with Discovery
Rule or Order. If at any time during the
course of the proceedings it is brought to
the attention of the court that a party has
failed to comply with an applicable discovery
rule or an order issued pursuant thereto, the
court may order [that] party to permit the
discovery of material and information not
previously disclosed[,] or enter such other
order as it deems just under the
circumstances.
(2) Willful Violations. Willful
violation by counsel of an applicable
discovery rule or an order issued pursuant
thereto may subject counsel to appropriate
sanctions by the court.
As this Court noted in Lewis, the
language of subsection (e)(1) in particular,
the clause or enter such other order as [the
court] deems just under the circumstances
tracks the language of the 1978 Second
Edition of the American Bar Associations
Standards Relating to Discovery and Procedure
Before Trial, 11-4.7(a)(iii). In the
Commentary that accompanied Standard 11-
4.7(a), the ABA drafters declared that this
phrase [was] not intended to endorse
sanctions that exclude from evidence any
discoverable, but [as yet] nondisclosed,
items. Id., page 1167.10
But Alaska law has changed since
Lewis was decided. In February 1995, the
Alaska Supreme Court amended the provisions
of Criminal Rule 16(b) and (c) dealing with
expert testimony. See Supreme Court Order
No. 1191 (effective July 15, 1995).
The pre-1995 provisions dealing
with expert testimony Rule 16(b)(1)(iv)
(government experts) and Rule 16(c)(4)
(defense experts) declared that both the
prosecution and the defense had the duty to
disclose the reports or statements of its
experts to the other side. But these pre-
1995 provisions said nothing about the
potential sanctions for violating this duty.
Presumably, any failures to disclose proposed
expert testimony would have been subject to
the types of sanctions discussed in Rule
16(e) and in the Lewis decision.
But under the current (i.e., the
post-1995) version of Rule 16, the two
provisions dealing with expert testimony
i.e., a new Rule 16(b)(1)(B) (government
experts) and a revised Rule 16(c)(4) (defense
experts) both contain language that
explicitly addresses the range of sanctions
available to a trial judge when a party
violates the duty of disclosure. These two
provisions now explicitly authorize exclusion
of evidence as a sanction for a partys
failure to make proper disclosure of expert
testimony, if the judge affirmatively finds
that a continuance is not an adequate remedy:
Failure to provide timely disclosure under
this rule shall entitle the [other party] to
a continuance. If the court finds that a
continuance is not an adequate remedy under
the circumstances of the case, the court may
impose other sanctions, including prohibiting
[the party] from calling the expert at
trial[.]
The supreme courts enactment of
these amended provisions was, in effect, a
modification or partial rescission of what
this Court said in Lewis about the range of
permissible sanctions for discovery
violations. Our statements on this subject
in Lewis were based on the language of Rule
16 as it existed in 1981. But the post-1995
version of Rule 16 now explicitly authorizes
the exclusion of evidence as a potential
sanction for this particular type of
discovery violation i.e., a violation of the
duty to disclose expert testimony.
Certainly, a defendants
constitutional right to present a defense is
a weighty consideration militating against
any sanction that precludes or restricts
defense evidence. But we infer, from the
supreme courts amendment of Criminal Rule 16
in 1995, that the supreme court viewed expert
testimony as an area where willful discovery
violations might more readily support a
preclusion or restriction of defense
evidence.
As the supreme court indicated in
Lee, expert testimony is often complex, and
its jargon and principles are often beyond
the ken of non-experts. Thus, it is
particularly difficult for an unprepared
party to explain or rebut adverse expert
testimony. We also note that, in this case,
Judge Weeks declared that the preclusion or
restriction of evidence as a means of
deterring future discovery violations was
important because the Juneau superior court
had experienced repeated violations of the
rules requiring disclosure of expert
testimony by both prosecutors and defense
attorneys. Judge Weekss concern was
implicitly grounded on the fact that the
majority of criminal litigation is conducted
by the same small group of attorneys (both
prosecutors and defense attorneys) who work
for, or under contract with, government
agencies.
There are, of course, significant
differences between the civil and criminal
litigation processes. Further, our societys
interest in fair and full adjudication is at
its highest when someones liberty is at
stake. But the fact remains that our supreme
court amended Criminal Rule 16 to expressly
authorize preclusion of expert testimony as a
sanction for failures to disclose this
information. The supreme courts action is
clearly premised on the idea that exclusion
or restriction of evidence is sometimes
justified, despite a defendants
constitutional right to present a defense.
Thus, even though our supreme
courts decisions in civil cases may not be
controlling in all respects, these cases do
provide certain rules that a trial judge in a
criminal case should follow when deciding
whether to preclude or restrict proposed
expert testimony under Criminal Rules
16(b)(1)(B) and 16(c)(4).
First, a judge should not consider
this sanction unless the judge finds that the
failure to disclose was willful in the sense
that (1) there was a conscious decision not
to disclose the information, and (2) this
decision did not stem from a mistaken but
good-faith objection to the discovery
obligation, but rather from a conscious
intent to impede discovery.
Second, even when the discovery
violation is willful, a judge should not
exclude or restrict the proposed expert
testimony unless the judge affirmatively
finds that lesser sanctions (such as a
continuance) would not adequately remedy the
situation. On the question of what remedies
are adequate, the judge must consider (1) the
degree to which the non-disclosure will
prejudice the non-offending partys ability to
litigate the case, and (2) whether, given the
history of the case, lesser sanctions will be
sufficient to ensure future compliance with
discovery obligations.
It is possible that, because of a
defendants constitutional right to present a
defense, the weighing of these factors should
be different when the offending party is the
defendant (as opposed to the government). We
need not decide this issue in Harriss case
because, given the facts of Harriss case, the
superior courts action is clearly
supportable.
As we have just explained, Criminal
Rule 16(c)(4) authorizes the exclusion or
restriction of evidence only when the judge
finds that the defense violation of the duty
of disclosure was willful (in the sense that
it was prompted by a conscious intent to
impede discovery), and only when the judge
finds that lesser sanctions (such as a
continuance) will not be adequate to (1) cure
the prejudice to the other party and
(2) ensure compliance with the discovery
rules in the future.
Judge Weeks found that Hedlands
violation was willful, and that finding is
adequately supported by the record.
Judge Weeks also concluded that a
further continuance of Harriss trial would
not cure the prejudice to the State or ensure
compliance with the discovery rules in the
future.
With respect to whether lesser
sanctions would be adequate to ensure future
compliance with the discovery rules, Judge
Weeks noted that the defense attorney had
already procured a lengthy delay of Harriss
trial for the announced purpose of making
sure that Dr. Ophoven would have a fair
opportunity to study the medical records and
formulate her report and then the attorney
willfully withheld the report. This behavior
suggested that simply granting another
continuance would not be sufficient to deter
future violations.
With regard to whether a
continuance would be an adequate remedy for
the State, Judge Weeks noted that Harriss
case was already more than a year old. The
judge further noted the State had arranged
for many other witnesses to come to Juneau to
testify witnesses who would have to be
rescheduled (and who might potentially be
lost) if Harriss trial were delayed.
Of course, one might argue that,
absent the impending death or permanent
unavailability of an important witness, a
continuance or, as was the case here, an
additional continuance will almost always be
adequate to cure the prejudice to the non-
offending party. But this is not how the
Alaska Supreme Court has interpreted and
applied this concept.
The supreme courts decisions in
Lee, DeNardo, Maines, and Honda Motor Co. all
indicate that the non-offending party has a
cognizable interest in the scheduled trial
date.
For instance, in Lee, the supreme
court declared that the record supported the
trial judges decision to grant summary
judgement against Lee because Lees willful
discovery violation had prejudiced the State:
Lees omissions delayed progress in the
case and forced the state to either depose
Lee without the aid of written discovery[,]
or conduct a trial without the benefit of
meaningful discovery.
. . .
[W]ithout pre-trial discovery, the state
would have had inadequate time to examine and
understand the scientific principles
pertinent to [Lees claims], and consequently
might have been unable to dispute [their
validity]. For these reasons, the sanction
imposed [by the trial judge] accepting the
[States] alleged facts as admitted was
sufficiently tailored to the discovery
violation.
141 P.3d at 350-51.
This quoted language makes sense
only if one assumes that the State had an
interest in having the case go forward as
scheduled, and that the State would suffer a
cognizable prejudice if the trial had to be
delayed because of Lees willful misconduct.
Likewise, in DeNardo, when the
supreme court discussed why the non-offending
party suffered prejudice as a result of
DeNardos discovery violations, the supreme
court focused solely on the difficulties that
the non-offending party would have
encountered if they had been forced to trial
without the information that DeNardo refused
to disclose. 51 P.3d at 924-25. The supreme
court did not discuss the possibility that,
if a continuance had been granted, DeNardo
might eventually have been coerced into
making the required disclosures.
Similarly, in Honda Motor Co., the
supreme court upheld a trial judges decision
to enter judgement against Honda when the
company repeatedly failed to make required
pre-trial disclosures, even after the trial
judge extended the disclosure deadlines. 751
P.2d at 493. Implicit in the supreme courts
ruling is the concept that, in the face of a
partys willful disobedience of disclosure
obligations, it is sometimes permissible for
a trial judge to insist on orderly procedure
and that a trial judge need not keep
extending deadlines, or granting continuances
of a trial even when this means sacrificing
the goal of a full litigation of the relevant
facts.
(We also note, from the supreme
courts recitation of the procedural history
in Honda Motor Co., that the supreme court
did not require the trial judge to first try
to compel compliance by imposing monetary
sanctions on Honda or their attorneys before
moving to the more severe sanction of issue-
preclusion.)
Compare the supreme courts decision
in Maines, where the court concluded that the
trial judge was obliged to employ sanctions
short of the preclusion of evidence because
more than two months remained until the
scheduled trial date, and thus ample time
remained to cure any problems [caused by the
discovery violation]. 155 P.3d at 326.
Based on the Alaska Supreme Courts
treatment of this issue, we reject Harriss
contention that a continuance of trial will
always be an adequate remedy unless the non-
offending party proves that they will
certainly lose evidence if the trial is
delayed. The supreme courts decisions in
this area show that the non-offending party
has a protected interest in the scheduled
trial date.
This interest is not absolute; it
can be overridden when justice requires. But
when a trial judge is confronted with willful
disobedience to discovery rules and orders,
the judge is not required to keep delaying
the trial to protect the offending partys
interest in a full hearing of the evidence.
Rather, the judge has the discretion to order
the trial to go forward with abridged
evidence.
The ultimate question is whether,
given the finding that Hedlands discovery
violation was willful, Judge Weeks abused his
discretion when he concluded that another
continuance of Harriss trial would not cure
the prejudice to the State or deter future
violations of the discovery rules. Given the
record before us, we can not say that Judge
Weeks abused his discretion when he concluded
that a continuance would not be adequate to
achieve these purposes, and that a
restriction on Dr. Ophovens testimony was
required.
Harriss argument that, if Judge Weekss ruling was
proper under Alaska Criminal Rule 16(c)(4) as construed
in light of the relevant case law, then Rule 16(c)(4)
is unconstitutional
Harriss final argument is that, if Judge
Weekss ruling is defensible under Criminal Rule
16(c)(4), then Rule 16(c)(4) is unconstitutional.
Harris asks us to construe the Alaska Constitution as
embodying the view taken by the dissenters in Taylor v.
Illinois.11 In other words, Harris asks us to hold
that a defendants constitutional right to present a
defense absolutely bars trial judges from excluding
potentially exculpatory evidence as a sanction for a
defense violation of the discovery rules, no matter how
egregious the violation, unless the defendant is
personally responsible for the violation.
We reject Harriss argument for three reasons.
First, Alaska Criminal Rule 16(c)(4)
expressly authorizes trial judges to exclude expert
testimony as a sanction for a violation of the duty of
disclosure imposed by that rule. Court rules, like
statutes, are entitled to a presumption of constitu
tionality.12
Second, as this Court stated in State v.
Zerkel, 900 P.2d 744, 758 n. 8 (Alaska App. 1995), and
again in Aaron v. Ketchikan, 927 P.2d 335, 336 (Alaska
App. 1996), [w]hen a defendant asserts that the Alaska
Constitution affords greater protection than the
corresponding provision of the Federal Constitution, it
is the defendants burden to demonstrate something in
the text, context, or history of the Alaska
Constitution that justifies this divergent
interpretation. Harris argues that we should reject
the result in Taylor v. Illinois as a matter of Alaska
constitutional law in particular, under the compulsory
process clause13 but he offers no pertinent discussion
of the text, context, or history of that provision.
Third, the relevant decisions of the Alaska
Supreme Court indicate that, although our state
constitution may limit a judges authority to enforce
discovery rules by precluding or restricting evidence,
our constitution does not absolutely bar judges from
employing this sanction.
It is true that a defendants right to present
a defense is a fundamental tenet of our criminal
justice system. But so, too, is the principle that a
criminal trial should not be reduced to a process of
evasion and ambush. For example, in Babcock v. State,
685 P.2d 721, 726 (Alaska App. 1984), this Court
recognized that a trial judge ultimately has the
authority to bar a defense witness from testifying if
the witness has willfully violated a sequestration
order.
In Harriss case, Judge Weeks found that
Harriss attorney purposely concealed the substance of
Dr. Ophovens proposed testimony with the intent of
sandbagg[ing] the State. As our supreme court has
noted, such outright failures to respond to discovery
[obligations] halt the case development process dead in
its tracks, and threaten the underpinnings of the
discovery system[.] Hikita v. Nichiro Gyogyo Kaisha,
Ltd., 12 P.3d 1169, 1175 (Alaska 2000).14
In DeNardo, our supreme court held that,
despite a civil defendants constitutional right to due
process and right to trial by jury, it was
constitutional for the trial judge to grant judgement
against DeNardo because of his willful discovery
violations. 51 P.3d at 927-28. The supreme court
declared, A party willfully refusing to comply with a
discovery order risks ultimate loss of its case,
whether through dismissal (if the recalcitrant party is
the plaintiff) or imposition of liability (if the
non-complying party is the defendant). Id. at 927.
It is true that DeNardo was representing
himself, and he therefore bore direct responsibility
for his failure to comply with the discovery rules.
But the parties in Lee and in Honda Motor Co. were
represented by counsel, and yet our supreme court did
not mention this as a significant factor when the court
upheld the litigation-affecting sanctions imposed by
the trial judges in those two cases.
Harris does not discuss any of these cases,
nor any others of more than tangential relevance.
Because of this, Harris has failed to overcome the
presumption that Criminal Rule 16(c)(4) is
constitutional.
For all of these reasons, we uphold Judge
Weekss decision to limit the testimony of Dr. Ophoven.
The evidence of Harriss prior conviction for assaulting
another infant
In 1998, Harris assaulted his six-month old
daughter in a manner similar to the way he assaulted
the baby in this case: by breaking his daughters upper
right arm. He ultimately pleaded guilty to fourth-
degree assault.
When the State took Harriss case to the grand
jury, the State presented evidence of this prior
conviction. Before trial, Harris sought a protective
order barring the State from introducing this evidence
at trial. Judge Weeks ultimately ruled that the
evidence was admissible under Evidence Rule 404(b)(4)
as construed in Bingaman v. State, 76 P.3d 398 (Alaska
App. 2003).
At Harriss trial, this evidence was presented
to the jury by having the court take judicial notice of
Harriss guilty plea to fourth-degree assault.
When the prosecutor delivered his summation
to the jury, he pointed to Harriss prior conviction as
tending to prove that Harris (among the three adults
present when the babys arm was broken) was probably the
perpetrator. The prosecutor also pointed out that,
because of this prior conviction, Harris had the most
to lose if he was convicted of assaulting the baby. In
addition, the prosecutor noted that Harriss sister,
Linnea, had provided a false alibi for Harris in the
1998 case.
Alaska Evidence Rule 404(b)(4) states, in
relevant part, that [i]n a prosecution for a crime
involving domestic violence, ... evidence of other
crimes involving domestic violence by the defendant
against the same or another person ... is admissible.
In Bingaman, this Court clarified that Rule 404(b)(4)
authorizes a court to admit evidence of a defendants
other crimes involving domestic violence even though
the only relevance of this evidence is to prove that
the defendant characteristically engages in similar
acts of domestic violence, thus making it more likely
that the defendant committed the act of domestic
violence alleged in the current litigation.15
On appeal, Harris argues that it was error
for Judge Weeks to allow the State to introduce this
evidence. Harris concedes that his prior conviction
was probative to some degree. In fact, when this issue
was litigated in the superior court, Harris conceded
that most of the factors [listed] in Bingaman ...
[were] satisfied. However, Harris now argues that the
State had so much other evidence connecting Harris to
the present assault that there was little practical
need to let the State introduce evidence of the prior
assault.
This argument was not preserved for appeal.
In the superior court, Harris argued that the paucity
of the States evidence linking him to the present
crime, not its abundance, was the factor that made
evidence of the earlier assault more prejudicial than
probative.
Moreover, even if this argument had been
preserved, it lacks merit. Harris relies on Harvey v.
State, 604 P.2d 586 (Alaska 1979). In Harvey, the
Alaska Supreme Court held that evidence of a defendants
past acts of abuse in child abuse cases is often
relevant only in that it reflects on the propensity of
a past offender to continue a pattern of child abuse[,
and t]his is precisely the type of inference Rule
404(b) is intended to prevent.16 According to Harris,
the decision in Harvey supports his contention that
Judge Weeks should not have admitted evidence of
Harriss prior assault conviction.
But the supreme court decided Harvey in 1979,
before Evidence Rule 404(b)(4) was enacted. (That rule
was enacted in 1997.17) As this Court explained in
Bingaman, the legislature enacted Rule 404(b)(4) to
exempt certain evidence from Rule 404(b)(1)s
prohibition against propensity evidence.18 In other
words, the analysis used by the supreme court in Harvey
is inconsistent with Alaska law following the enactment
of Rule 404(b)(4).
Given the facts in this case, we conclude
that Judge Weeks could reasonably find that evidence of
Harriss previous assault on his infant daughter was
probative of Harriss identity as the babys assailant in
the present case, and that this evidence was not so
unfairly prejudicial as to require exclusion under
Evidence Rule 403. Moreover, Judge Weeks acted to
minimize any potential prejudice by cautioning the
jurors (1) that they were not to convict Harris for his
past conduct, and (2) that Harriss prior conviction, by
itself, was insufficient to prove his guilt in the
present case.
We further note (although neither party has
discussed this point) that the disputed evidence
appears to have been independently admissible under
Evidence Rule 404(b)(2) the portion of Rule 404(b)
that deals specifically with child abuse cases. This
rule reads:
In a prosecution for a crime involving
... physical ... assault or abuse of a minor,
evidence of other acts by the defendant
toward the same or another child is
admissible if admission of the evidence is
not precluded by another rule of evidence and
if the prior offenses
(i) occurred within the 10 years
preceding the date of the offense charged;
(ii) are similar to the offense charged;
and
(iii) were committed upon persons
similar to the prosecuting witness.
Harriss prior assault on his infant daughter
fits all three requirements listed in this
rule.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 Taylor, 484 U.S. at 405, 108 S.Ct. at 651.
2 Id., 484 U.S. at 410-416, 108 S.Ct. at 653-56.
3 Id., 484 U.S. at 416, 108 S.Ct. at 657.
4The pre-trial disclosure deadline expired on Monday December
13th because the 30th day before trial (December 11th)
fell on a Saturday. See Alaska Criminal Rule 40(a).
5 DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 923 (Alaska
2002); Hughes v. Bobich, 875 P.2d 749, 753 (Alaska 1994);
Honda Motor Co., 751 P.2d at 492; Hawes Firearms Co. v.
Edwards, 634 P.2d 377, 378 n. 2 (Alaska 1981).
6 Maines, 155 P.3d at 325.
7 Id.
8 See Lee, 141 P.3d at 350; DeNardo, 51 P.3d at 927; Honda
Motor Co., 751 P.2d at 493.
9 Lee, 141 P.3d at 351.
10 The most current version of the ABA Standards i.e., the
Third Edition published in 1996 now cautiously
endorses the exclusion of evidence as a sanction for
egregious discovery violations. Here is the text of
Standard 11-7.1(a) (Sanctions) of the ABAs Standards
Relating to [Criminal] Discovery:
(a) If an applicable discovery rule or an order issued
pursuant thereto is not promptly implemented, the
court should do one or more of the following:
(i) order the noncomplying party to permit the
discovery of the material and information not
previously disclosed;
(ii) grant a continuance;
(iii) prohibit the party from calling a witness or
introducing into evidence the material not
disclosed, subject to the defendants right to
present a defense and provided that the exclusion
does not work an injustice either to the prosecution
or the defense; and/or
(iv) enter such other order as it deems just under the
circumstances.
11484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
12DeNardo, 51 P.3d at 928.
13Article I, Section 11.
14Quoting James William Moore et al., Moores Federal Practice
(3rd ed. 1997), 37.90, Vol. 7, pp. 137-141.
15Bingaman, 76 P.3d at 401.
16Harvey, 604 P.2d at 590.
17See SLA 1997, ch. 63, 22.
18Bingaman, 76 P.3d at 408.
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