State v. Talmadge
| Decision Date | 05 May 2000 |
| Docket Number | No. CR-98-0312-PR.,CR-98-0312-PR. |
| Citation | 999 P.2d 192,196 Ariz. 436 |
| Parties | STATE of Arizona, Appellee, v. Audra Jean TALMADGE, Appellant. |
| Court | Arizona Supreme Court |
Janet Napolitano, Attorney General, Phoenix, by Paul J. McMurdie, Chief Counsel Criminal Appeals Section, Donna J. Lam, Assistant Attorney General, Tucson, Attorneys for Appellee.
Susan A. Kettlewell, Pima County Public Defender, Tucson, by Rebecca A. McLean, Assistant Public Defender, Attorneys for Appellant.
¶ 1 In this case, we review evidentiary rulings that prevented two persons from testifying as expert witnesses on behalf of a defendant charged with eleven counts of criminal child abuse. We conclude, as to one of the experts, Dr. Paterson, that the court's ruling amounted to an abuse of discretion. By excluding both, the court prevented the defendant from presenting potentially sufficient evidence of the only defense raised. Nothing in the record suggests the proferred defense was trivial or frivolous. We thus remand for a new trial. Jurisdiction is predicated on Rule 31.19, Arizona Rules of Criminal Procedure, and article VI, section 5(3) of our state constitution.
¶ 2 Medical doctors discovered and treated several broken bones of the defendant Audra Talmadge's three-month-old daughter. Finding the broken bones consistent with what they thought may be child abuse, the doctors reported the defendant to state authorities. The child was placed in foster care, and the defendant was charged with two counts of class 2 child abuse (likely to produce death or serious injury in a victim under fifteen) and nine counts of class 4 child abuse (non-death, serious injury).
¶ 3 The defendant asserted that abuse was not involved and that the fractures were the result of temporary brittle bone disease ("TBBD"), a controversial cousin to the well-known and more accepted bone disease known as osteogenesis imperfecta. This was defendant's exclusive defense, and to support it she sought to have Dr. Marvin Miller testify as her principal TBBD expert. Miller works as a pediatric geneticist in Dayton, Ohio and is regarded as one of the nation's premiere experts with respect to TBBD.
¶ 4 Miller could not come in person but instead offered to testify via videotape or through some other electronic means. The trial court issued an out-of-state subpoena to compel Miller's attendance. Through counsel, Miller resisted enforcement of the subpoena in the Ohio courts, arguing that his attendance at the trial in Arizona would create an occupational hardship. The Ohio court refused to enforce the Arizona subpoena. ¶ 5 On February 8, 1996, the trial court granted defendant's motion to take Miller's videotaped deposition in lieu of live testimony, finding Miller to be a material and unavailable witness under Rule 15.3 of the Arizona Rules of Criminal Procedure. Five dates were submitted to the prosecutor as to when the deposition could be taken, three of which conflicted with the prosecutor's responsibility for a different trial. The prosecutor and defendant's counsel settled on March 14. A day later, the prosecutor sought to change the date to March 12, after remembering a family matter that prevented attendance on March 14.
¶ 6 The defendant was unable to agree to the prosecutor's proposed change and urged the prosecutor to take up the scheduling matter with the judge. Instead of addressing the scheduling issue, however, the State went on the offensive, responding with a motion challenging Miller's testimony as lacking "general acceptance" within the scientific community and asking for a hearing under principles enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).1
¶ 7 On March 29, 1996, the trial court denied the State's Frye request, but after reviewing more than 600 pages of Frye material submitted by the State and the defendant regarding TBBD and Miller's qualifications, and after conducting its own research, the trial court reversed its earlier Rule 15.3 ruling that would have allowed Miller's videotaped deposition to be taken. The trial court explained its ruling:
[S]ometimes he [Miller] looks real good and sometimes he looks real bad. The jury needs to see him. We cannot do it by having him all cleaned up on a video, with no objections and no anything, and have other doctors live in court. It's been a long time since you tried to get him here in December. I'm not going to put blame now, but there was [sic] scheduling difficulties and things that weren't done toward the end of the year, and I'd like for you to attempt to bring Dr. Miller here now. It's been months since he's testified anywhere. He has a reputation to defend. I would ask you to challenge him with that. The reason why I will allow the jury to hear this [testimony regarding TBBD] and to assess it themselves is so they can hear all that there is to hear, and it's in both your clients' interest[s] that your witness be live, and it's also the State's right, I think, to have your witness subject to the same kind of credibility test as their experts.
Unable to convince Miller to reconsider his decision not to testify in person, which seemed an obvious outcome in view of Miller's prior efforts to quash the Arizona subpoena, defendant was left with no alternative but to select a different TBBD expert.
¶ 8 On April 15, 1996, defense counsel indicated Dr. Colin Paterson of Scotland as a possible expert. He is arguably the world's preeminent TBBD expert, and Miller emulates his work. Paterson had not been officially disclosed as a potential witness before this time, but his work was at the heart of the Frye debate and was the subject of prior discussions between counsel about TBBD. Defense counsel believed the cost of Paterson's attendance might have been excessive, however, and mentioned that other potential witnesses may have to be contacted. With trial scheduled for June 18, the judge ordered disclosure of Miller's replacement by April 29. On that date, defense counsel disclosed Dr. Richard Roberts, who, in his career, had diagnosed only one TBBD patient and clearly lacked the experience and credentials of either Miller or Paterson.
¶ 9 On June 7, defense counsel disclosed Paterson as a surrebuttal witness, explaining that Paterson had made unexpected plans to be in the United States for reasons unrelated to the trial and would be willing to testify in Arizona as part of that trip. However, Paterson would be available only June 28, a fact that defense counsel apparently did not disclose until June 17, the day before trial.
¶ 10 After learning that Paterson would be available only June 28, the State moved to exclude the entirety of Paterson's testimony as a sanction for late disclosure. The trial court granted this motion. After a two-week trial at which Dr. Roberts testified, defendant was found guilty on all charges and was given two consecutive seventeen-year sentences for the class 2 felonies and nine concurrent four-year terms of probation for the class 4 charges, to be served consecutively to the class 2 sentences. On appeal, the court of appeals affirmed the convictions and sentences.
¶ 11 We granted review to evaluate three rulings by the trial court: (1) exclusion of Miller's videotaped deposition after first ruling the deposition admissible, (2) the preclusion of Paterson's testimony, and (3) the ruling that would not allow Roberts to mention Miller's conclusions, contained in a letter, with respect to the cause of broken bones in defendant's infant daughter.2 Because we now conclude the first two are dispositive, we do not reach the third.3
Miller's videotaped deposition
¶ 12 We review for abuse of discretion the trial court's Rule 15.3 ruling precluding Miller's videotaped deposition and requiring live testimony. See State v. Fuller, 143 Ariz. 571, 574, 694 P.2d 1185, 1188 (1985)
; State v. Reid, 114 Ariz. 16, 29, 559 P.2d 136, 149 (1976).
¶ 13 The basis of the court's initial decision to allow the videotape was that Miller was a material and unavailable witness under the rule. The only event that occurred between that ruling and the subsequent ruling which prevented videotaping was the State's Frye challenge. Yet the trial court refused the State's request to hold a Frye hearing, and Miller was just as material and unavailable after the challenge as before.
¶ 14 The record is not entirely clear why the trial court reversed itself, but a common sense rationale seems reasonable. In State v. Brady, we stated a clear preference for live testimony in a manner that suggests having live witnesses is the most advantageous way to proceed: "The live testimony of the proposed witness as opposed to the written interrogatories could have been the difference between conviction and acquittal." 122 Ariz. 228, 230, 594 P.2d 94, 96 (1979). We ordered a new trial in Brady because the defendant was forced to settle for interrogatory answers instead of live testimony as a result of the trial court's unwillingness to subpoena an out-of-state witness.4
¶ 15 In the instant case, unlike Brady, the question for the trial judge was whether to allow a videotaped deposition in lieu of live testimony. The judge ordered the live testimony simply out of concern that Miller would be "all cleaned up on a video" and that this would deprive the jury of a live appearance, deemed preferential, if not essential, on the facts of this particular case.
¶ 16 Accordingly, while the trial court's seemingly abrupt reversal of position on Miller raises a question even under our deferential standard for abuse of discretion, the question is not substantial, and we hold that the trial court's reversal was not an abuse.
Paterson's exclusion
¶ 17 We have held that precluding a witness entirely should be a sanction of last resort. See State v. Tucker, 157 Ariz. 433, 440, 759 P.2d 579, 586 (1988)
. Dr. Paterson's exclusion must be examined...
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