State v. Wilson , 30 Ohio St. 3d 99 ( 1987 )

Per Curiam.

The instant appeal concerns the continuing duty of a party in a criminal proceeding to disclose discoverable matter which would have been subject to a request for discovery had such matter been available at the time that the request was made. Counsel for defendant-appellee and cross-appellant urges that where the failure to disclose such information misleads the opposing party to believe that information previously disclosed and relating thereto is exculpatory in nature, the admission of the withheld information at trial is reversible error. We agree.

Crim. R. 16(D) provides:

“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.”

It is undisputed that the prosecution was aware of the substance of the Havekost testimony approximately one month prior to trial. In October 1984, the prosecution discussed the test results with Havekost and was apprised that the presence of barium on the hands of defendant was consistent with his having discharged a firearm equipped with ammunition possessing this element alone. This explanation of the test results was reiterated in a similar conversation on the day of the trial. However, this information was never provided to defense counsel. Consequently, the testimony of Havekost, far from being exculpatory in nature, was, as best, irrelevant and, at worst, devastating to the defense of Crawford Wilson.²

The unexpected nature of the expert testimony placed the defense in an awkward position. In an attempt to demonstrate that the expert had failed to disclose in his report the possibility that ammunition containing only barium could have been employed, the cross-examination tended to underscore the false conclusion that the presence of this element on the hands of defendant was probative of his guilt. Undoubtedly, the efforts of defense counsel were calculated to demonstrate that he was not apprised of the nature of the Havekost testimony in advance. In so doing, counsel sought to lay the foundation for a motion pursuant to Crim. R. 16(E)(3) which 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 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.”

Consistent with the provisions of the rule, defense counsel moved the trial court to declare a mistrial or, in the alternative, to strike the testimony. Counsel also moved to admit the laboratory report so as to ameliorate the damaging testimony of Havekost. All these motions were denied.

In support of the trial court’s determination, the state maintains that the proper response to this surprise testimony would have been a defense request for a continuance. It is highly questionable whether a request for a continuance would remedy the situation. The damaging testimony had already been given and its unexpected nature precluded the opportunity for the defense to object to its admission or for the trial judge to rule on its admissibility prior to its presentation before the jury. Given these circumstances, it is equally unlikely that a motion to strike the testimony would have been effective.

While conceding that it failed to comply with Crim. R. 16(D), the state maintains that such non-compliance was “harmless beyond a reasonable doubt.” This contention is highly speculative at best. It is certainly reasonable to conclude that the trial strategy employed by the defense and its pre-trial preparations would have been materially altered by prior knowledge of the Havekost testimony. Implicit in the argument advanced by the state is that there was ample evidence in the record apart from the Havekost testimony. The confidence expressed by the state in its case on appeal is in marked contrast to its persistent references to the Havekost testimony during trial. In particular, the state appeared to relish the opportunity to exploit the false conclusion that the presence of only barium on the hands of the defendant was probative of the fact that he had fired the gun.

Rather than confirming the position maintained by the state that the expert testimony was ancillary to its case-in-chief, the record discloses a pattern of prosecutorial behavior calculated to entrap the defense through a mistaken but understandable reliance on the facially exculpatory nature of the laboratory report. The prosecution unquestionably sought to foster a misconception with respect to the forensic report and was aware that its efforts were successful. The following exchange during opening statement is particularly illustrative:

“MR. BRITZ: * * * [for defendant] There’s a test that has been devised to determine whether people have fired guns * * *. The evidence in this case will be that these tests proved negative.

“MR. MANDROSS: * * * [for the state] I’m going to — excuse me, strike that.

“MR. BRITZ: No traces were found on his hand.”

It is evident, therefore, that the prosecution was fully aware at the outset of the trial that the construction accorded the report by the defense was erroneous. Far from seeking to correct this misconception, the prosecution sought to exploit it. Thus, during closing argument the prosecution remarked:

“MR. CONKLIN: * * * Defendant promised us all kinds of things. The defendant promised us that the tests were negative.* * *”

This course of conduct hardly evidences the confidence in its case-in-chief that the state has expressed on appeal. Rather, the constant references to the disputed testimony reveal a conscious effort on the part of the prosecution to conduct the type of “trial by ambush” condemned by the court in United States v. Kelly (C.A. 2, 1969), 420 F. 2d 26, 29, when it considered a former federal counterpart to Ohio Crim. R. 16(D).

This court is cognizant of the position in which the trial judge was placed. The failure to be apprised of the Criminal Rule violation prior to the testimony of Havekost prevented the court from ruling on motions before the damage was done. Nevertheless, it is our conclusion that the failure of the trial court to strike the testimony or otherwise exclude it from evidence was an abuse of discretion. This error was further compounded by the denial of the defense motion to admit the laboratory report. We therefore hold that the failure of the state to comply with Crim. R. 16(D) constituted a denial of procedural due process.

Accordingly, the trial court committed reversible error in denying the motions advanced by the defense. The judgment of the court of appeals is affirmed.

Judgment affirmed.

Sweeney, Douglas, Wright and H. Brown, JJ., concur. Moyer, C.J., Holmes and Locher, JJ., dissent.

2 A conclusive determination resulting from the neutron activation analysis test requires, within certain parameters, the presence of both barium and antimony. The presence of only one element renders the results inconclusive since the element could have originated from another source. Thus, if apprised of the testimony of Havekost prior to trial, the defense would have had the opportunity to object to its relevance or to suggest to the court that any probative value of testimony relating to only one element would be outweighed by its prejudicial impact. The defense would also have been able to seek expert testimony which might have contradicted the expert testimony presented by the state.