Com. v. Nichols

• Decision Date: 19 March 2009
• Docket Number: No. 2007-SC-000493-DG.,2007-SC-000493-DG.
• Citation: 280 S.W.3d 39
• Parties: COMMONWEALTH of Kentucky, Appellant, v. David NICHOLS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

280 S.W.3d 39

COMMONWEALTH of Kentucky, Appellant, v. David NICHOLS, Appellee.

No. 2007-SC-000493-DG.

Supreme Court of Kentucky.

March 19, 2009.

Jack Conway, Attorney General, Heather Michelle Fryman, Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellant.

Emily M.W. Roark, Bryant Law Center, PSC, Paducah, KY, Counsel for Appellee.

Opinion of the Court by Justice CUNNINGHAM.

Appellee, David Nichols, was previously convicted in the McCracken Circuit Court of one count of criminal abuse in the second degree and sentenced to serve five years in prison. On appeal, however, that conviction was vacated, and the case was remanded to the McCracken Circuit Court for a new trial. The retrial was scheduled for September 6, 2006.

Prior to trial, Nichols filed a motion requesting the trial court to clarify whether his defense counsel was obligated, pursuant to RCr 7.24, to disclose to the Commonwealth the identity of his expert witness and to provide to the Commonwealth a written report regarding the expert's anticipated testimony at trial. Nichols's expert had not prepared a report. It was Nichols's position, therefore, that no report could be produced and that the Commonwealth was not entitled to the expert's identity.

In an order entered July 18, 2006, the trial court held that RCr 7.24 does not require an expert witness to generate a report just to satisfy the rules of reciprocal discovery. As long as there is no report, there is no obligation to provide one to opposing counsel. However, the trial court ruled that because the "spirit" of RCr 7.24 requires such disclosure, and in order to give the Commonwealth a timely opportunity to request a Daubert hearing, Nichols was required to provide the full name and address of any expert witness he planned to call at trial. The Commonwealth's motion to alter, amend, or vacate the trial court's ruling was denied on August 8, 2006. At that stage of the proceeding, Nichols was under no obligation to generate a report solely for discovery, but was required to give the name and address of any expert witness expected to testify at trial.

On July 27, 2006, the Commonwealth filed an interlocutory appeal pursuant to KRS 22A.020(4), objecting to the trial court's ruling that Nichols's expert witness was not required to generate a report for reciprocal discovery. On August 3, 2006, Nichols filed a cross-appeal, objecting to the requirement that he provide the full name and address of the expert witness to the Commonwealth.

The Court of Appeals issued an opinion affirming in part and reversing in part, stating that the trial court did not abuse its discretion by failing to require Nichols's expert witness to generate a report for the Commonwealth. However, the Court of Appeals also stated that the trial court did abuse its discretion by ordering Nichols to provide to the Commonwealth the name and address of the expert witness. The Commonwealth petitioned for discretionary review before this Court. No cross-appeal was filed by Nichols, apparently since the opinion of the Court of Appeals was favorable on both issues. Both issues were briefed for the Court and oral arguments were heard.

Discovery in criminal cases, by either the Commonwealth or the defendant, was practically non-existent in the common law. The common law courts deemed themselves without inherent power to order such relief. Eugene Cerruti, Through the Looking-Glass at the Brady Doctrine: Some New Reflections on White Queens, Hobgoblins, and Due Process, 94 Ky. L.J. 211 (2005-2006). What movement there was in the area of criminal discovery came primarily, although not entirely, from legislative reform. Our current RCr 7.24 was enacted in 1965 on the heels of the U.S. Supreme Court landmark case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In that case, the appellant was convicted of murder while perpetrating a robbery. The question before the Court was whether the appellant was denied his constitutional rights where certain exculpatory evidence was not disclosed to the defendant. Id. at 87, 83 S.Ct. 1194.

Up until the enactment of RCr 7.24, the only discovery rule available in criminal cases allowed the defendant a copy of the grand jury transcript. That right was provided under Section 110 of the old Criminal Code of Practice. Before Brady, our Court did not require the Commonwealth to produce much of anything else. See, e.g., Kinder v. Commonwealth, 279 S.W.2d 782 (Ky.1955). Against this backdrop of statutory and judicial history, we now turn to the issues before us.

We begin by noting that the posture of this case is procedurally flawed. Nichols cannot file an interlocutory cross-appeal. Rather, KRS 22A.020(4) is uniquely for the benefit of the Commonwealth. Therefore, the Court of Appeals did not have jurisdiction over the issue of the trial court's order requiring disclosure of the name and address of the defense expert. Evans v. Commonwealth, 645 S.W.2d 346-47 (Ky.1982). Accordingly, that portion of the Court of Appeals' opinion must be vacated and the order of the trial court reinstated.

We then turn to the remaining issue as to whether the trial court was required, pursuant to RCr 7.24, to mandate that Nichols's expert witness generate a report for production to the Commonwealth. "The interpretation of criminal procedural rules is a question of law rather than a question of fact. Therefore, we give no deference to the interpretation of the rule by the [trial court]." Commonwealth v. Yelder, 88 S.W.3d 435, 437 (Ky.App.2002).

The pertinent part of RCr 7.24 is as follows:

If the defendant requests disclosure under RCr 7.24(1), upon compliance to such request by the Commonwealth, and upon written request of the Commonwealth, the defendant, subject to objection for cause, shall permit the Commonwealth to inspect, copy, or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody, or control of the defendant, which the defendant intends to introduce as evidence or which were prepared by a witness whom the defendant intends to call at trial when the results or reports relate to the witness's testimony.

We believe the trial court was correct in interpreting the plain meaning of RCr 7.24 and denying the Commonwealth's request for Nichols's expert witness to generate a report. RCr 7.24 is unequivocal in requiring a defendant to permit the Commonwealth to have "any results or reports ... of scientific tests or experiments made in connection with the particular case ... which the defendant intends to introduce as evidence or which were prepared by a witness whom the defendant intends to call at trial when the results or reports relate to the witness's testimony." See RCr 7.24(3)(A)(i) (emphasis added).

The rule says what it says. It requires a defendant to produce reports that are in existence, but does not require a defendant to generate such reports for production to the Commonwealth.

But the question does not end here.

Our case law strongly supports the trial court's discretion in interpreting the meaning of RCr 7.24, as well as in making rulings outside the strict confines of the criminal rule in order to enforce the "spirit" it is intended to advance.¹ Broad discretion in discovery matters has long been afforded trial courts in both civil and criminal cases. See Sexton v. Bates, 41 S.W.3d 452, 455 (Ky.App.2001) (trial courts have broad, but not unlimited, discretion over the discovery process); Berry v. Commonwealth, 782 S.W.2d 625, 628 (Ky.1990) (trial courts have broad discretion to permit such orders as may be "just under the circumstances" in matters of discovery), overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky.2008).

In Wright v. Commonwealth, 637 S.W.2d 635 (Ky.1982), our Court held that a "common-sense" construction of RCr 7.26 must be utilized. While dealing with the sister rule of RCr 7.24, this case clearly proclaims that the trial court has sound discretion as to discovery rules. In James v. Commonwealth, 482 S.W.2d 92, 94 (Ky. 1972), it was announced that the system cannot tolerate "a cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused." Again, we indicated that the trial court has broad discretion which may extend beyond the strict wording of RCr 7.24.

One of the more important decisions of this Court, in a series of post-Brady and post-RCr 7.24 discovery decisions, is Barnett v. Commonwealth, 763 S.W.2d 119 (Ky.1988). In that case, we reversed a murder conviction based upon several grounds, two of which dealt with discovery. By court order, the Commonwealth had been directed to furnish the names of witnesses and statements obtained prior to trial. However, the Commonwealth refused to produce the name of a surprise witness who testified about having seen the defendant casing out the scene of the crime some days before the murder. Defense counsel only became aware of the existence of this witness five days after the trial had begun. We noted that RCr 7.24 does not require the Commonwealth to produce a list of witnesses in advance of trial; but, in that instance, where the Commonwealth had "seemingly agreed" to furnish said witnesses, the Commonwealth was obligated to do so. In other words, under certain circumstances, such as the situation in Barnett, discovery obligations will extend outside the rule. Id. at 123. In Barnett, we also extended the obligation from merely producing a report of the Commonwealth's expert to one that is complete and provides due notice of the critical part of that witness's testimony. This was a noteworthy extension of the strict letter of RCr 7.24.

Since Barnett, we have considered numerous cases interpreting the dictates and the spirit of RCr 7.24. See ...