State ex rel. Richardson v. Randall, 65061

• Decision Date: 22 November 1983
• Docket Number: No. 65061,65061
• Parties: STATE ex rel. Doris RICHARDSON, Relator, v. Hon. Alvin RANDALL, Judge, Jackson County Circuit Court, Respondent.
• Court: Missouri Supreme Court

Page 699

660 S.W.2d 699

STATE ex rel. Doris RICHARDSON, Relator, v. Hon. Alvin RANDALL, Judge, Jackson County Circuit Court, Respondent.

No. 65061.

Supreme Court of Missouri,

En Banc.

Nov. 22, 1983.

Rehearing Denied Dec. 20, 1983.

James R. Wyrsch, Mary Beth Gardner, Kansas City, for relator.

Robert Frager, Asst. Pros. Atty., Albert A. Riederer, Pros. Atty., Kansas City, for respondent.

GUNN, Judge.

Relator seeks a writ of prohibition to prevent having to disclose the name of a handwriting expert retained by her or her counsel for her defense against forgery charges. The respondent trial court ordered disclosure of the expert's name and address. Relator's efforts for relief have brought her to this Court which has issued a preliminary rule in prohibition.

The issue is whether a criminal defendant must divulge the name and address of an expert with whom she has consulted but does not intend to use at trial. Lying in the heart of this case is Rule 25.06(A) and the reasonableness of the state's request to disclose.

We make our preliminary rule in prohibition absolute.

Relator is the critical subject of forgery charges pending in respondent's trial court in Jackson County in a case styled "State of Missouri v. Richardson." For the purpose of this proceeding, the state has complied with the provisions of Rule 25.03 on relator's request for disclosure of material and information designated, including the names of handwriting and fingerprint experts to be called by the state and checks and money orders presumably pertinent to the prosecution.

The state has sought reciprocal treatment by asking relator to disclose the name of any expert employed for her defense to review any documents alleged to be forged. Relator has refused to provide the name of her expert or state whether there has been a review of the alleged forged documents.

Pursuant to Rule 25.06 the state has filed a motion with the respondent trial court seeking an order to compel the relator to disclose the name of any expert retained by her and the results of any tests or comparisons made. Relator's response is that she does not intend to call any expert on her behalf and that all discovery obtained by her purported expert was privileged and non-discoverable, referring to Rule 25.05.

The respondent trial judge has indicated his intention to sustain the motion to compel disclosure, and after failing to obtain relief in the Western District of the Court of Appeals, relator has brought the matter to this Court.

Relator's dilemma is manifest. She or her counsel, or both, have apparently consulted a handwriting expert. The results of that consultation have not been disclosed, but relator has announced that she does not intend to call any expert on her behalf. The state does not attribute any bad faith to her in this regard and accepts the fact that she will not call the expert to testify in her behalf. ¹ But if relator is required to reveal the name of the handwriting expert with whom she has consulted--and realistically assuming that the expert's findings are unfavorable to her--it would be devastating to her case for the state to reach out and use that expert against her. The relator would with her own efforts provide the state with the evidence to demolish her.

Relator refers to Rule 25.05(A)(1) which requires a defendant on written request by the state to disclose reports or statements of experts which defendant intends to introduce into evidence. She asserts in good faith that she does not intend to call upon any expert as her witness. Hence, her contention is--and correctly so--that Rule 25.05(A)(1) does not require her to disclose the name of the anonymous expert. His or her name would therefore be forever unknown except as serendipitiously stumbled upon by the state in its own investigation. The state counters that upon written notice Rule 25.06(A) allows the trial court to order disclosure of material not covered by Rule 25.05 if the request is reasonable. Rule 25.06(A) would therefore presumably provide for disclosure of experts found by defendant though not intended to be called.

Under the particular and narrow circumstances of this case, we find that the request for disclosure of relator's unknown expert to be unreasonable, and as a consequence, the preliminary rule in prohibition should be made absolute.

This Court has denounced promiscuous and expansive use and abuse of prohibition to allow review of trial court error, particularly in circumstances other than those concerning the question of trial court jurisdiction. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983); State ex rel. Hannah v. Seier, 654 S.W.2d 894 (Mo. banc 1983). But from time to time in peculiarly limited situations there are instances in which absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available to respond to a trial court's order. In such circumstances, the extemporaneous character of prohibition may be the remedy to be applied. See, e.g., State ex rel. Ken Reynolds Pharmacies, Inc. v. Pyle, 564 S.W.2d 870 (Mo. banc 1978).

This case fits into that phenomenal and exigent instance in which the trial court's ruling would result in irreparable harm to relator, and she faces the plight of being without other...