Allen v. State ( 1997 )

LUMPKIN, Judge,

specially concurring:

I agree the judgment and sentence in this ease should be reversed. I write separately to explain what I consider to be potentially misleading language in the opinion.

The opinion contains dicta dealing with an appropriate sanction for failing to comply with discovery orders. After determining the error in not allowing the clinical psychologist to testify constituted reversible error, the opinion goes on with a “furthermore” dealing with the severity of a discovery sanction (Op. at 937). The “furthermore” adds nothing to the opinion, and could lead to problems in the future. This could be read as holding that if something is critical to the defense but was not disclosed pursuant to a valid discovery order, the judge cannot sanction a defendant by refusing its admission into evidence, regardless of its merit as a sanction. That is not a correct statement of the law. To be sure, trial courts must be very careful in formulating appropriate sanctions for discovery violations. However, a reading of statutes and caselaw reveal other factors should be considered in addition to whether the evidence was critical to the defense. Under the Court’s dicta, a defendant could circumvent discovery provisions simply by withholding it, then claim the evidence was critical to his defense. I do not think that is the intent of the Oklahoma Criminal Discovery Code, 22 O.S.Supp.1996, § 2001 et seq. The language contained in the opinion is too broad, and I do not believe it was the intent of this Court to go after a gnat with a sledgehammer by holding the Oklahoma Criminal Discovery Code could be circumvented in this manner. Rather, I read this language as applying solely to the facts and circumstances of this case. In that light, I agree the defense witness was improperly excluded.