People v. Pronovost, No. 88SC31

Docket NºNo. 88SC31
Citation773 P.2d 555
Case DateMay 15, 1989
CourtSupreme Court of Colorado

Page 555

773 P.2d 555
The PEOPLE of the State of Colorado, Petitioner,
v.
Charles Franklin PRONOVOST, Respondent.
No. 88SC31.
Supreme Court of Colorado,
En Banc.
May 15, 1989.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H.

Page 556

Forman, Sol. Gen., Paul R. McLimans, Sp. Asst. Atty. Gen., Craig, for petitioner.

Mark J. Fischer, Hayden, for respondent.

ERICKSON, Justice.

Defendant Charles Franklin Pronovost appealed from a judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child in violation of section 18-3-405, 8B C.R.S. (1986). The court of appeals reversed the conviction, holding that the trial court's refusal to allow the late endorsement of an expert witness for the defense denied the defendant his right to a fair trial. People v. Pronovost, 756 P.2d 387 (Colo.App.1987). We granted the prosecution's petition for certiorari to determine whether the trial court abused its discretion by excluding the defense expert's testimony for failure to comply with the court's discovery deadline. We affirm the court of appeals and accordingly approve the reversal and remand for a new trial.

A.B., then eleven-years old, and her friend, R.D., were playing on a grassy area located in the apartment complex where they lived on April 11, 1985. The children were approached by Pronovost, who was the manager of the complex. The testimony at trial reveals that Pronovost was friendly with all of the children living in the complex and obtained their trust and affection. A.B. ran up and hugged Pronovost, who asked A.B. and R.D. to enter a vacant townhouse with him. The townhouse was part of the apartment complex and consisted of two floors connected by an internal staircase.

After entering the townhouse, R.D. was given permission by Pronovost to go up to the second floor where he was out of sight of A.B. and Pronovost. Pronovost and A.B. sat down next to each other on the steps between the floors. Pronovost kissed A.B. on the cheek and reached around her, placing his hand under her sweatshirt. A.B. testified that Pronovost then attempted to fondle her breasts. When R.D. descended from the top floor, Pronovost removed his hands from A.B. A.B. ran home and reported the incident to her mother. The police were contacted and following an investigation, Pronovost was charged with sexual assault on a child.

Pronovost was arraigned on October 21, 1985, and entered a plea of not guilty. A two-day trial was scheduled for March 31, 1986. At the arraignment, pursuant to Crim.P. 16, the trial court ordered that mutual discovery be completed by February 14, 1986. Before the deadline expired, both parties filed certificates of discovery compliance and lists of anticipated trial witnesses. 1

On Friday, March 28, 1986, the last working day before trial was to commence, Pronovost filed a motion to continue along with a speedy trial waiver. Pronovost sought a continuance of trial in order to endorse Dr. Philippus, a psychologist who would testify on behalf of Pronovost. The motion stated that the psychologist was contacted on March 27, 1986, and that he was the only psychologist Pronovost could afford. Pronovost argued in his motion that both he and his attorney had been engaged in efforts to contact other experts but no fee arrangement could be reached due to the defendant's moderate financial status. Pronovost also argued that he was entitled to an expert because the prosecution

Page 557

had endorsed three experts from the Kempe Center.

At the hearing on the motion, held on the morning of the first day of trial, counsel for Pronovost alternatively sought permission for the late endorsement of Dr. Philippus in the event a continuance was denied. The defense asserted that the prosecution would have an opportunity to review Dr. Philippus's report "over the weekend" and that Philippus would testify on the second day of trial. When given the opportunity to make an offer of proof, counsel for Pronovost stated that based upon an interview and psychological testing of defendant, Dr. Philippus would testify that Pronovost had a "truthful character" and that he did not fit the "typical patterns or profiles" of a person who would molest a child. The trial court denied the defendant's request for a continuance on the ground that Pronovost failed to timely endorse the psychologist as a witness. The defense then requested that Dr. Philippus be permitted to testify as a rebuttal witness in response to the prosecution's experts. Because Dr. Philippus was not endorsed in a timely manner, the trial court also denied that request.

The court of appeals, in reversing the conviction, applied a balancing test to determine if Pronovost's constitutional rights were violated by the exclusion of the expert testimony. The balancing test used by the court of appeals was found in Chappee v. Massachusetts, 659 F.Supp. 1220 (D.Mass.1987). The Chappee balancing test, adopted by the court of appeals, is a different test than the test we set forth in People v. Hampton, 696 P.2d 765 (Colo.1985) (Hampton I ), although the two tests are to some extent parallel. The court of appeals concluded that the exclusion of Dr. Philippus's testimony violated Pronovost's sixth and fourteenth amendment rights, was an abuse of discretion by the trial court, and constituted reversible error.

I.

We first determine whether the preclusion of Dr. Philippus's testimony for violation of the trial court's discovery order was an abuse of discretion. The trial court's order was predicated on Crim.P. 16, which describes the requirements and procedures for discovery in criminal cases. Pursuant to Crim.P. 16, the trial court has the authority and discretion to order the prosecution to disclose the identities of the witnesses that will be called to testify at trial. See Crim.P. 16(I)(a)(1)(I) (the prosecution must disclose to defense counsel the names and addresses of witnesses, together with their written and recorded statements). 2 Subject to constitutional limitations, the trial court may also require that the defense disclose the nature of any defense to be raised at trial and the names and addresses of defense witnesses. See Crim.P. 16(II)(c); see also People v. District Court, 187 Colo. 333, 531 P.2d 626 (1975) (defendant's duty to disclose); II ABA Standards For Criminal Justice, Discovery & Procedure Before Trial, § 11-3.3 (2d ed. 1986) (defendant's duty to disclose nature of defense and witnesses). 3

Crim.P. 16(III)(g), entitled "Regulation of Discovery: Failure to Comply; Sanctions" provides:

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 this rule or with an order issued pursuant to this rule, the court

Page 558

may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.

Crim.P. 16(III)(g) gives a trial court broad discretion in considering motions to endorse witnesses and in fashioning remedies for violations of a trial court's discovery orders. People v. District Court, 664 P.2d 247, 252 (Colo.1983); see also II ABA Standards For Criminal Justice, Discovery & Procedure Before Trial, § 11-4.7 (2d ed. 1986) (listing sanctions substantially similar to Crim.P. 16(III)(g)). We first address the circumstances under which a trial court may exclude a defense witness's testimony because of the attempted late endorsement of the witness, and second, whether the trial court in this case abused its discretion.

In People v. Hampton, 696 P.2d 765 (Colo.1985) (Hampton I ), we addressed the issue of whether a defendant's constitutional right to call witnesses or to testify in his own defense was violated by a rule preconditioning the presentation of an alibi defense on pretrial disclosure. We first noted in Hampton I that the right of an accused to call other witnesses in defense of the charge, like the right to testify in his own defense, is a fundamental component of due process of law. Hampton, 696 P.2d at 774; see, e.g., Taylor v. Illinois, 484 U.S. 400, ...

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31 practice notes
  • State v. J.Q.
    • United States
    • New Jersey Superior Court — Appellate Division
    • November 14, 1991
    ...child sex abuse case. [See e.g., U.S. v. Azure, 801 F.2d 336 (8th Cir.1986); People v. Pronovost, 756 P.2d 387 (Colo.Ct.App.1987), aff'd, 773 P.2d 555 (1989); Ward v. State, 519 So.2d 1082 (Fla.Dist.Ct.App.1988); Keri v. State, 179 Ga.App. 664, 347 S.E.2d 236 (Ct.App.1986); People v. Server......
  • People v. Casias, No. 09CA1745.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 27, 2012
    ...expert's testimony for a discovery violation, which, he asserts, cannot be justified under the five-factor test of People v. Pronovost, 773 P.2d 555, 558 (Colo.1989). ¶ 16 Defendant's argument is built upon a false premise. The court did not exclude his expert from testifying. Indeed, the c......
  • State v. Armstrong, No. S–14–339
    • United States
    • Supreme Court of Nebraska
    • May 29, 2015
    ...907 (D.C.Cir.1992) ; U.S. v. Peters, 937 F.2d 1422 (9th Cir.1991) ; Escalera v. Coombe, 852 F.2d 45 (2d Cir.1988) ; People v. Pronovost, 773 P.2d 555 (Colo.1989) ; State v. Lamphere, 130 Idaho 630, 945 P.2d 1 (1997) ; People v. Flores, 168 Ill.App.3d 284, 522 N.E.2d 708, 119 Ill.Dec. 46 (19......
  • People v. Chard, No. 89SC547
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1991
    ...R.S. was competent to testify. A. A criminal defendant has a constitutional right to present evidence on his behalf, People v. Pronovost, 773 P.2d 555, 558 (Colo.1989), as well as a constitutional right to confront adverse witnesses, Kogan v. People, 756 P.2d 945, 959 (Colo.1988). These rig......
  • Request a trial to view additional results
31 cases
  • State v. J.Q.
    • United States
    • New Jersey Superior Court — Appellate Division
    • November 14, 1991
    ...child sex abuse case. [See e.g., U.S. v. Azure, 801 F.2d 336 (8th Cir.1986); People v. Pronovost, 756 P.2d 387 (Colo.Ct.App.1987), aff'd, 773 P.2d 555 (1989); Ward v. State, 519 So.2d 1082 (Fla.Dist.Ct.App.1988); Keri v. State, 179 Ga.App. 664, 347 S.E.2d 236 (Ct.App.1986); People v. Server......
  • People v. Casias, No. 09CA1745.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 27, 2012
    ...expert's testimony for a discovery violation, which, he asserts, cannot be justified under the five-factor test of People v. Pronovost, 773 P.2d 555, 558 (Colo.1989). ¶ 16 Defendant's argument is built upon a false premise. The court did not exclude his expert from testifying. Indeed, the c......
  • State v. Armstrong, No. S–14–339
    • United States
    • Supreme Court of Nebraska
    • May 29, 2015
    ...907 (D.C.Cir.1992) ; U.S. v. Peters, 937 F.2d 1422 (9th Cir.1991) ; Escalera v. Coombe, 852 F.2d 45 (2d Cir.1988) ; People v. Pronovost, 773 P.2d 555 (Colo.1989) ; State v. Lamphere, 130 Idaho 630, 945 P.2d 1 (1997) ; People v. Flores, 168 Ill.App.3d 284, 522 N.E.2d 708, 119 Ill.Dec. 46 (19......
  • People v. Chard, No. 89SC547
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1991
    ...R.S. was competent to testify. A. A criminal defendant has a constitutional right to present evidence on his behalf, People v. Pronovost, 773 P.2d 555, 558 (Colo.1989), as well as a constitutional right to confront adverse witnesses, Kogan v. People, 756 P.2d 945, 959 (Colo.1988). These rig......
  • Request a trial to view additional results

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