State v. Finnerty

• Decision Date: 23 August 1989
• Docket Number: No. 88-1720,88-1720
• Citation: 543 N.E.2d 1233,45 Ohio St.3d 104
• Parties: The STATE of Ohio, Appellant, v. FINNERTY, Appellee.
• Court: Ohio Supreme Court

Page 104

45 Ohio St.3d 104

543 N.E.2d 1233

The STATE of Ohio, Appellant, v. FINNERTY, Appellee.

No. 88-1720.

Supreme Court of Ohio.

Submitted May 17, 1989.

Decided Aug. 23, 1989.

Gregory A. White, Pros. Atty., and Jonathon E. Rosenbaum, Vermilion, for appellant.

Smith & Smith Attorneys, Gerald M. Smith, Avon Lake, and Daniel Wightman, for appellee.

RESNICK, Justice.

The issue before this court is when the prosecution, upon a proper discovery request, fails to furnish the defendant with the name of a known rebuttal witness, must the trial court exclude the testimony of the rebuttal witness?

Crim.R. 16 provides for discovery and inspection by either party in a criminal action. ² Crim.R. 16(B) imposes on the prosecutor a duty to disclose certain information upon a proper discovery request made by the defendant. Included in this rule is a provision for discovery of witness' names, addresses, and records of felony convictions.

"Upon motion of the defendant, the court shall order the prosecuting attorney to furnish to the defendant a written list of the names and addresses of all witnesses whom the prosecuting attorney intends to call at trial, together with any record of prior felony convictions of any such witness, which record is within the knowledge of the prosecuting attorney. * * * " Crim.R. 16(B)(1)(e).

The duty to disclose information pursuant to a proper discovery request is continuous. "If, subsequent to compliance with a request or order pursuant to this rule, and prior to or during trial, a party discovers additional matter which would have been subject to discovery or inspection under the original request or order, he shall promptly make such matter available for discovery or inspection, or notify the other party or his attorney or the court of the existence of the additional matter, in order to allow the court to modify its previous order, or to allow the other party to make an appropriate request for additional discovery or inspection." Crim.R. 16(D). See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 26, 514 N.E.2d 394, 401-402.

Rebuttal witnesses, as well as witnesses used in the prosecution's case-in-chief, fall within the scope of discovery. See State v. Howard (1978), 56 Ohio St.2d 328, 333, 10 O.O.3d 448, 451, 383 N.E.2d 912, 915; State v. Parson (1983), 6 Ohio St.3d 442, 445, 6 OBR 485, 487, 453 N.E.2d 689, 691. Thus, if the prosecution does not provide the name of a rebuttal witness upon a defendant's request for such information, the trial court may impose sanctions on the prosecution.

Crim.R. 16(E)(3) sets forth several sanctions when a party fails to comply with a discovery request. " * * * [T]he court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances." It is within the trial court's discretion to decide what sanction to impose. See Apanovitch, supra, 33 Ohio St.3d at 26, 514 N.E.2d at 402; Parson, supra, 6 Ohio St.3d at 445, 6 OBR at 487, 453 N.E.2d at 691; State v. Edwards (1976), 49 Ohio St.2d 31, 42, 3 O.O.3d 18, 24, 358 N.E.2d 1051, 1059-1060.

Exclusion of the rebuttal witness' testimony is only one sanction among many that the trial court can impose. In Howard, supra, the prosecution called a rebuttal witness, whose name the prosecution had not given to the defense, in order to attack the credibility of the defendant. We stated that the philosophy of the Criminal Rules was to " * * * remove the element of gamesmanship from a trial. [Accordingly], [t]he state should furnish upon a proper demand the names of all witnesses it reasonably anticipates it is likely to call, whether in its case-in-chief or in rebuttal. * * * " (Emphasis added.) Id. 56 Ohio St.2d at 333, 10 O.O.3d at 451, 383 N.E.2d at 915. However, we held that because no request for a continuance was made by the defendant and because the trial court explicitly instructed the jurors to limit the rebuttal witness' testimony to the issue of the defendant's credibility, the trial court had not committed prejudicial error. Likewise, in Edwards, supra, 49 Ohio St.2d at 42-43, 3 O.O.3d at 24-25, 358 N.E.2d at 1059-1060, the prosecution failed to provide the defense with the name of a witness to be called in its case-in-chief. Despite this omission, we held that the trial court properly could admit this testimony in view of the fact that the prosecutor's mistake was inadvertent; that the defense was not surprised by the testimony; and that the defense counsel did not ask for a continuance.

Hence, it is evident from our prior holdings that failure to comply with a discovery request for names of witnesses does not automatically result in exclusion of their testimony. If this were true, then Crim.R. 16(E)(3) would be meaningless.

" * * * The court is not bound to exclude such material at trial although it may do so at its option. Alternatively, the court may order the noncomplying party to disclose the material, grant a continuance in the case or make such other order as it deems just under the circumstances. * * * " Parson, supra, 6 Ohio St.3d at 445, 6 OBR at 487, 453 N.E.2d at 691.

An appellate court which reviews the trial court's admission or exclusion of evidence must limit its review to whether the lower court abused its discretion. Appellee herein asserts that the trial court did commit prejudicial error in allowing the rebuttal witness to testify. Appellant, on the other hand, contends that the trial court did not abuse its discretion in admitting this testimony.

A trial court abuses its discretion when it acts in an unreasonable, arbitrary or unconscionable manner. A reviewing court should not substitute its judgment for that of the trial court. See State v. Jenkins (1984), 15 Ohio St 3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264, 313.

In the instant case appellee's defense was "not guilty by reason of insanity." Appellee presented two experts who testified that appellee was legally insane when he killed Timothy Kolleda. Dr. Bertschinger stated that appellee had a long-standing mental illness which apparently was brought on by his trip to Duluth. The vast majority of the defense was devoted to this expert testimony. In view of this defense, the prosecution could not reasonably expect that the defense would present evidence as to appellee's peaceful nature. Indeed, only a few pages of the transcript pertain to testimony by non-expert defense witnesses. From a view of the record and in light of the circumstances, we do not find that the trial court acted in an unreasonable, arbitrary or unconscionable manner; hence, we find no abuse of discretion.

The rebuttal witness could not have testified in the appellant's case-in-chief. See Evid.R. 404(A)(1). In Howard, supra, 56 Ohio St.2d at 333, 10 O.O.3d at 451, 383 N.E.2d at 915, we stated that the prosecution should furnish the names of witnesses it " * * * reasonably anticipates it is likely to call." (Emphasis added.) Faced with an insanity defense, we cannot say that the prosecution should have "reasonably anticipate[d] " that it would be able to use this witness to rebut testimony as to appellee's peaceful character. The prosecution could use the testimony of the rebuttal witness only if appellee first put his character into evidence. Appellant learned of the existence of the rebuttal witness on Friday, July 17, 1987. The trial was to begin the following Monday. Appellant did not know that it could use the rebuttal testimony until trial on Tuesday when appellee placed his character as a gentle and non-violent person into...