State v. Ferricci , 2022 Ohio 1393 ( 2022 )

[Cite as State v. Ferricci, 2022-Ohio-1393.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110208
v. :
MICHAEL FERRICCI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 28, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-607929-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey S. Schnatter and Janna R. Lifford,
Assistant Prosecuting Attorneys, for appellee.
Friedman & Nemecek, L.L.C., and Eric C. Nemecek, for
appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Michael Ferricci, appeals his rape conviction. For
the reasons that follow, we reverse and remand for a new trial.
I. Procedural Background
In 2016, Ferricci was named in a multicount indictment arising from
allegations that he sexually assaulted a minor child at the daycare center where he
worked.
In November 2017, the matter proceeded to a jury trial on one count of
rape in violation of R.C. 2907.02(A)(1)(b) (sexual conduct with a child under the age
of 13), and one count of kidnapping in violation of R.C. 2905.01(A)(4) (removal or
restraint of a child under 13 for the purpose of engaging in sexual activity) with a
sexual motivation specification under R.C. 2941.147(A).1 The jury acquitted Ferricci
of kidnapping, but could not reach a verdict on the rape offense. The trial court
declared a hung jury and scheduled a new trial on the rape offense for February
2018, which was later continued until May 2018. Trial was continued again until
February 24, 2020, following Ferricci’s unsuccessful appeal of the trial court’s denial
of his motion to dismiss based on double-jeopardy grounds. See State v. Ferricci,
8th Dist. Cuyahoga No. 107279, 2019-Ohio-994.
In preparation for retrial, Ferricci requested discovery from the state
pursuant to Crim.R. 16 and the state requested reciprocal discovery. The parties
supplemented discovery, including their respective witness lists, throughout the
pretrial proceedings. On February 24, 2020, the day of trial, the state filed a
1
Prior to trial, the state dismissed the counts charging Ferricci with sexual battery,
unlawful sexual conduct with a minor, and public indecency.
supplemental response to discovery identifying Dr. Sandra McPherson, an expert in
forensic psychology, as a state’s witness. The state concedes that it did not provide
defense counsel with Dr. McPherson’s expert report as required under
Crim.R. 16(K).
Interestingly, the defense had retained McPherson as an expert in
preparation for Ferricci’s first trial, and pursuant to Crim.R. 16(K), the defense
provided the state with Dr. McPherson’s expert report for the first trial. Ultimately
Dr. McPherson testified as Ferricci’s expert at the 2017 trial. For retrial, however,
the defense did not identify Dr. McPherson as a potential witness, nor did it provide
the state with Dr. McPherson’s expert report in its discovery responses.
The February 24, 2020 trial date was continued due to the
unavailability of a defense witness. The second trial commenced on March 2, 2020,
on the sole count of rape.
II. The 2020 Retrial
In 2016, then three-year-old C.W. attended preschool in Shaker
Heights. June 27, 2016, was “Mud Day” at the school. When C.W. got home from
school, his mother asked about his day ─ inquiring about “Mud Day” and if he got
dirty. According to his mother, C.W. said that “Mr. Mike” had “stuck his” “pee pee”
or “penis” in his mouth. C.W.’s father testified that his son had never said anything
like that before. C.W.’s mother stated that she asked C.W. to show her what “Mr.
Mike” had done and C.W. put his head down in his mother’s lap. C.W.’s mother said
that C.W. told her that “Mr. Mike told him not to tell his mommy.” (Tr. 491.) C.W.’s
mother and father contacted a relative who worked in law enforcement and then
called the Shaker Heights Police Department.
During his interview with police, C.W. told the officers that he saw “Mr.
Mike” “going tinkle.” Subsequently, C.W. was taken to the hospital. At the hospital,
C.W. was seen by Angelita Olowu, a SANE nurse examiner. The nurse met with the
family, evaluated C.W., and asked him questions about what had happened during
school. According to Olowu, C.W. made no disclosures to her regarding the
allegations.
C.W., who was seven years old at the time of the second trial, testified
that he remembered that “Mr. Mike” put his penis in C.W.’s mouth. He remembered
telling his mother but did not remember talking to the police or a social worker about
what happened. He also testified that what happened was “real,” not “make-
believe.”
Heather Pado, C.W.’s teacher, explained to the jury that June 27, 2016,
was “Mud Day” — a day during which the children were allowed to play outside in
the mud and get really dirty. Pado testified that C.W. and Ferricci were alone
together in the bathroom for two minutes. When C.W. returned to the classroom,
he acted “normal.”
Over objection, forensic psychologist Dr. Sandra McPherson testified
on behalf of the state. Dr. McPherson informed the court that she had reviewed the
report she authored for the defense for the first trial but could not locate her file on
the case. The trial court allowed Dr. McPherson to use her testimony from her first
trial to refresh her recollection.
Dr. McPherson testified that she is semi-retired but has been licensed
to practice psychology in the state of Ohio since 1972 and has worked with both
adults and children who have reported some form of sexual abuse. She testified that
she is trained in the questioning of children. Dr. McPherson did not interview either
C.W. or Ferricci, but reviewed the questioning of C.W. by various parties, including
the police. According to Dr. McPherson, the police officer who interviewed C.W.
“clearly had not had any of the necessary training, not for dealing with a very small
child.” Dr. McPherson noticed several factors that made the police interview “less
than ideal,” and testified that because the officer failed to follow accepted protocols
when interviewing C.W., the “entire interview” with C.W. would not be considered
“to meet any kind of reasonable expectations.” Dr. McPherson also opined that the
initial disclosure that C.W. made to his mother would likely be the most accurate
and reliable version of events, and the likelihood that C.W. would have said someone
put “their penis in the child’s mouth is pretty low unless it actually happened.”
Shaker Heights Police interviewed Ferricci for over three hours. The
state submitted Ferricci’s police interrogation video as an exhibit at trial. The jury
watched and listened to a redacted version of Ferricci’s interrogation with police.
During his lengthy police interrogation, Ferricci repeatedly denied that he had done
anything inappropriate to C.W. After two hours and forty-five minutes into the
interrogation, Ferricci changed his story several times and stated that he placed his
penis on C.W.’s mouth while they were in the preschool bathroom.
Dr. Richard A. Leo, a qualified and designated expert in the area of
social sciences and confessions, testified on behalf of Ferricci. Dr. Leo testified
regarding the science of coerced confessions. He opined that Ferricci’s interrogation
was predicated on a “guilt presumptive” model and that the officers were accusatory
and very aggressive throughout the interaction. Dr. Leo further noted that these
tactics, when combined with the overall length of the interrogation, could have
contributed to Ferricci providing a false confession.
Ferricci testified in his own defense. During his trial testimony,
Ferricci denied doing anything inappropriate to C.W. When asked about his
admission to police detectives, he said:
I had told [the police] a few times that I didn’t do anything and I had
told them the incidences that had happened. And they told me that —
that it wasn’t good enough, that it didn’t make sense or that I was lying.
There were a few times where they told me I was talking “B.S.” and so
I felt — I felt like there was no way out unless I said what they wanted
me to say.
The jury convicted Ferricci of rape and the further finding that the
victim at the time of the offense was under 10 years of age. The trial court classified
Ferricci as a Tier III sex offender and sentenced him to life in prison with the
possibility of parole after 15 years. The trial court granted Ferricci an appellate bond
because of the continuing COVID-19 coronavirus pandemic.
III. The Appeal
Ferricci now appeals, raising the following four assignments of error:
I. The trial court erred by permitting the state to call a defense expert
witness during its case-in-chief.
II. Ferricci’s convictions are against the weight of the competent,
credible, evidence introduced at trial and must be reversed in order to
avoid a manifest miscarriage of justice.
III. The trial court failed to properly instruct the jury as to each element
of the charged offense.
IV. The trial court erroneously prevented defense counsel from
eliciting testimony from Dr. Leo on the issue of false or coerced
confessions.
Following oral argument, this court sua sponte ordered the parties to
brief the following issues as it relates to Ferricci’s first assignment of error: “Did the
trial court err when it allowed into evidence testimony that the defendant retained
Dr. Sandra McPherson? Was it error for the state to comment during closing
arguments on which party retained Dr. Sandra McPherson?” We will address these
additional issues within the first assignment of error, which is dispositive of this
appeal.
A. Expert Testimony
The defense retained Dr. McPherson as an expert in preparation for
Ferricci’s first trial. Pursuant to Crim.R. 16(K), the defense disclosed Dr. McPherson
as its expert and provided the state with her expert report. McPherson also testified
as Ferricci’s expert at the 2017 trial. For retrial, however, the defense chose not to
use Dr. McPherson as its expert. Accordingly, in its discovery responses in
preparation for retrial, the defense did not list Dr. McPherson as a witness, expert
or otherwise, and did not provide the state with her report.
Trial was scheduled to begin on February 24, 2020. The record
reflects that the state filed a supplemental witness list the morning of trial, indicating
that Dr. McPherson would be called as an expert witness on behalf of the state. Trial
was continued for one week at the defendant’s request due to witness unavailability.
During trial, the state attempted to call as a witness William Roser, a
children and family services social worker, who interviewed C.W. following the
accusation.2 The state maintained that based on comments made to the jury about
C.W. making different and inconsistent statements, Roser’s testimony was
important because he would testify about forensic interviewing techniques. Defense
counsel objected, contending that he was not an expert in this field and that his
testimony was duplicative and cumulative to the testimony already provided by C.W.
and his mother. After reviewing Roser’s testimony from the 2017 trial, the court
sustained the objection and Roser was not permitted to testify.
The state then announced it was calling Dr. McPherson. Defense
counsel objected, contending that Dr. McPherson was a defense-retained expert in
the first trial. The trial court nevertheless permitted the testimony. The defense
raised additional objections during the beginning of Dr. McPherson’s testimony that
resulted in side-bar conversations conducted both on and off the record.
During one side-bar conference, it was discovered that although Dr.
McPherson had reviewed the report she authored for the defense for the first trial,
2 Roser testified during the 2017 trial.
she could not locate her file on the case. When the state could not refresh Dr.
McPherson’s recollection with her report, the trial court allowed Dr. McPherson to
refer to her testimony from the first trial to refresh her recollection.
The defense objected again after defense counsel perceived that the
state’s questioning of Dr. McPherson was generating answers that vouched for
C.W.’s credibility and truthfulness of the disclosure. During this sidebar conference,
counsel challenged the trial court’s decision to allow Dr. McPherson to testify,
contending that the state did not provide the defense with her expert report and that
because Dr. McPherson was a defense-retained expert in Ferricci’s first trial, her
report was protected under the attorney-client and/or work-product privileges.
During this side-bar conversation, the state admitted that it did not
submit an expert report, but maintained that the report would have been the same
report that the defense provided the state during discovery for Ferricci’s first trial.
Defense counsel noted, however, that the state’s questioning was beyond what the
report provided. The state agreed but maintained that its questioning was in line
with the testimony the state had elicited from Dr. McPherson in the first trial.
When questioned about the state’s disclosure of Dr. McPherson as a
witness, the prosecutor advised the trial court that when it learned from the defense
a week prior to trial that it was undecided as to whether the defense would call Dr.
McPherson as a witness, the state supplemented its witness list to include Dr.
McPherson as a state’s witness. The state did not tell the trial court that the
supplemental list was not filed until the morning of the February 2020 trial date.
The court permitted Dr. McPherson to continue testifying but
cautioned the state that any testimony regarding the validity or falsity of disclosures
would not be tolerated.
In his first assignment of error, Ferricci contends that the trial court
erred in allowing Dr. McPherson to testify. Specifically, he contends that the
attorney-client and/or work-product privileges should have precluded the state
from calling Dr. McPherson as a witness and utilizing her report, which was not
provided to the defense during the pretrial phase of the second trial.
“Evidentiary rulings made at trial rest within the sound discretion of
the trial court.” State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921, 967
N.E.2d 233 (8th Dist.), citing State v. Lundy, 41 Ohio App.3d 163, 535 N.E.2d 664(1st Dist.1987). A trial court’s admission of expert testimony is also reviewed for an
abuse of discretion. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70
N.E.3d 508, ¶ 161. An abuse of discretion occurs when “a court exercise[es] it’s
judgment, in an unwarranted way, in regard to a matter over which it has
discretionary authority.” Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304,
¶ 35.
1. Preservation of Error
At the outset, the state contends that Ferricci has waived any claim
regarding Dr. McPherson’s testimony because he did not properly preserve his
claims for appeal. According to the state, the defense’s general objection at trial was
insufficient to preserve the specific issues raised by the defense on appeal. We
disagree.
Not only did the defense enter a general objection when the state
announced its intention to call Dr. McPherson as an expert witness, the defense
specifically noted that Dr. McPherson was its expert witness in the first trial.
Additionally, during Dr. McPherson’s testimony, defense counsel objected several
times to the state’s questions and, during one sidebar conference, defense counsel
reiterated the defense’s objection to her testimony in general. See State v. Boaston,
160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, ¶ 54, fn. 3 (general objection
sufficient to preserve issue on appeal).
In fact, after the state’s questioning started eliciting arguably
inappropriate testimony regarding the truthfulness of C.W.’s disclosures, one of
Ferricci’s defense attorneys raised the issue of attorney-client privilege and insisted
that he had no knowledge the state was going to call Dr. McPherson as a witness.
Defense counsel further objected to Dr. McPherson’s testimony because the state
had not submitted any expert report in discovery as required under to Crim.R. 16(K).
While a violation of Crim.R. 16(K) may be waived — for instance when
an appellant objected only to the admission of the expert’s report but not to the
expert’s testimony, see State v. Williams, 6th Dist. Lucas No. L-14-1067, 2015-Ohio-
1686, ¶ 17-21 — here, defense counsel did not waive this issue. Our review of the
record reveals that defense counsel made no less than three objections regarding the
state using Dr. McPherson as a state witness and further made several specific
objections to her testimony. Accordingly, we find that Ferricci has not waived his
claims on appeal.
2. Work-Product/Attorney-Client Privilege
Crim.R. 16 governs criminal discovery and inspection. Crim.R. 16(H)
addresses a defendant’s obligation to provide the prosecution with reciprocal
discovery. Relevant to the appeal, the defense is obligated to provide to the state “all
investigative reports,” except those “subject to work-product protection,” including
but not limited to “reports, memoranda, or other internal documents made by * * *
defense counsel, or their agents in connection with the investigation * * * or defense
of the case.” Crim.R. 16(H) and (J).
Additionally, Crim.R. 16(K) provides that an expert witness for either
the state or the defense “shall prepare a written report summarizing the expert’s
testimony, findings, analysis, conclusions, or opinion, and shall include a summary
of the expert’s qualifications.” However, this subsection of the rule does not require
disclosure of “written reports of consulting experts who are not being called as
witnesses.” See Crim.R. 16(K), 2010 Staff Note.
Ferricci contends that the state was prohibited from calling Dr.
McPherson as its expert at retrial because she was retained by the defense as
Ferricci’s expert in the 2017 trial, and the defense chose not to utilize the doctor on
retrial. The issue, therefore, is whether a defense expert in the first trial is an agent
of the defense and thus protected by the attorney-client privilege or work-product
privilege in a subsequent retrial when the defense chooses not to call that expert to
testify.
In support of his argument, Ferricci cites State v. Fairchild, 2d Dist.
Darke No. 1481, 1999 Ohio App. LEXIS 4012 (Aug. 27, 1999), and State v. Kopchak,
5th Dist. Muskingum No. CT2017-0036, 2018-Ohio-1136.
In Fairchild, the defendant was convicted of burglary. Prior to trial,
defense counsel retained an expert to examine fingerprint evidence. At trial, the
state presented testimony from its own fingerprint expert, who opined that the
fingerprints found at the scene of the crime matched those of the defendant. The
state then called the defense’s expert witness to testify during its case-in-chief.
Under direct examination, the defense expert agreed with the conclusions of the
state’s fingerprint analyst.
On appeal, the defendant argued that trial counsel was ineffective for
not objecting to the state’s use of the defense’s expert witness during its case-in-
chief, because the expert’s report and opinion were protected by the “work-product”
privilege and should therefore not have been subject to disclosure or use by the state.
The Second District concluded that the trial court erred by permitting
the state to use a defense-retained expert. The court held that “the use of such
testimony contravenes the work-product privilege enjoyed by the defendant.”
Fairchild at 15. The court also referenced the “chilling effect” that a contrary
determination would have on defense counsel’s ability to represent their clients,
noting that defense attorneys would be deterred from seeking out such experts and
developing work product on behalf of their clients if said experts could be used by
the state during its case-in-chief.
In Kopchak, 5th Dist. Muskingum No. CT2017-0036, 2018-Ohio-
1136, the defendant was indicted on two counts of rape. As part of its investigation,
the Bureau of Criminal Investigation (“BCI”) conducted DNA analysis of bodily
fluids found on an article of the defendant’s clothing and compared it with a
standard submitted by the defendant, and the swabs from the victim’s rape kit. The
defendant’s first attorney retained an expert in the field of forensic DNA analysis to
perform independent testing of the results obtained by BCI. The expert did not
perform any additional testing and reviewed the procedures and methods utilized
by BCI. The expert then provided a letter to defense counsel opining that BCI’s
procedures were conducted accurately and reliably.
The defendant retained new counsel prior to trial. The new attorney
filed a written response to the state’s discovery request, stating that the defense did
not intend to call any expert witnesses at trial. The state was aware that prior counsel
had retained a DNA expert and attempted to obtain a copy of any report or letter
that was generated in connection with that expert. Following a hearing, the court
ordered defense counsel to provide the state with a copy of the expert’s letter.
During trial and over the objection of defense counsel, the state was permitted to
call the defense’s expert witness to testify during its case-in-chief.
The Fifth District determined that the trial court erred by requiring
the defense to disclose its expert’s letter to the state and by permitting the state to
call the expert as a witness during its case-in-chief. The court noted that Crim.R. 16
explicitly recognizes that certain classes of materials — including those covered by
the attorney-client and work-product privileges — must be excluded from discovery.
Id. at ¶ 23.
The state seeks to distinguish Kopchak and Fairchild, arguing that the
difference is that Dr. McPherson’s testimony and expert report had already been
disclosed in the first trial and, therefore, the state was not seeking to use privileged
information. According to the state, Ferricci waived any privilege he possessed by
having Dr. McPherson testify at the first trial and by not properly objecting to her
testimony at the second trial. Although the separate opinion seemingly is persuaded
by the state’s position, this writer is not.
It has already been determined that Ferricci properly preserved this
matter for our review. Moreover, Ferricci’s first and second trials are two separate
and distinct matters, demonstrated by the fact that the parties initiated new
discovery requests and responses; thus the parties did not intend to rely on their
initial discovery requests and responses, including witness lists.
Dr. McPherson was not on the defense witness list for the second trial,
nor had the defense disclosed or turned over her expert report to the state for use in
the second trial. Any information the state gleaned from Dr. McPherson came from
a separate proceeding ─ Ferricci’s first trial. The state has not provided this court
any authority that would allow it to use a defense witness from a prior proceeding in
its case-in-chief without following the rules of discovery.
It is undisputed that the defense did not intend to call Dr. McPherson
as a witness during its case-in-chief in the second trial. Thus, as in Kopchak and
Fairchild, Dr. McPherson was an agent of the defense who consulted on issues
relating to the interviews of C.W. As such, the state was precluded from calling Dr.
McPherson as a witness and utilizing her expert report at trial. Compare Civ.R.
26(B) (consulting expert’s work product is part of the work product of the attorney
who retained the expert) and Nunley v. Nationwide Children’s Hosp., 10th Dist.
Franklin No. 13AP-425, 2013-Ohio-5330, ¶ 16 (addressing the intent of the
consulting expert privilege is “to prevent unfairness that could result from allowing
an opposing party to reap the benefits of another party’s efforts and expense”); see
also State v. Richey, 64 Ohio St.3d 353, 360, 595 N.E.2d 915 (1992) (no plain error
found, but the court noted that “the prosecutor’s use of a defense expert may violate
an accused’s attorney-client privilege”).
This conclusion is not altered by the fact that the defense had
previously provided a copy of Dr. McPherson’s report to the state or called her to
testify during Ferricci’s first trial. Rather, as the Supreme Court of New Jersey has
recognized, while the defense may waive certain aspects of confidentiality by
furnishing the state with a report from an expert they intend to call at trial, “the
defense does not waive its right to control the testimonial use of the expert [who]
remains unavailable to the State as a witness.” State v. Mingo, 77 N.J. 576, 586, 392
A.2d 590 (1978). The Mingo Court reasoned:
[T]he right to confidentiality we have recognized not only places
limitations on prosecutorial discovery but also affords an evidentiary
privilege. If the expert actually testifies for the defense concerning the
substance of the reports [s/]he has rendered to defense counsel, the
State remains able to effectively cross examine him [or her] with
respect thereto by reason of the discovery it has been granted.
However, should the defense elect not to present the expert as a witness
after previously indicating to the contrary, the fact that his [or her]
otherwise confidential reports have been disclosed to the prosecution
does not entitle the State to call the expert as its witness over objection
by the defense. The testimony of a defense consultant concerning the
substance of expert services [s/]he has performed for the defense is
exclusively available to the defense. If the defense trial strategy results
in his not being called to testify, his [or her] potential testimony on that
subject remains privileged from use by the State.
Id.Accordingly, this writer finds that the trial court abused its discretion
in allowing Dr. McPherson to testify on behalf of the state during Ferricci’s retrial
when the expert was retained by and testified on behalf of the defense during the
first trial. Dr. McPherson became an agent of the defense pursuant to Crim.R. 16(J)
once the defense decided not to call her as a witness at retrial. Accordingly, her
report was subject to the protections of the work-product privilege under the
criminal rules.
Moreover, even if this writer agreed with the separate opinion that
this tactical maneuver by the state is permissible and not in violation of any
attorney-client or work-product privilege, this writer would find that the state failed
to follow the discovery rules of Crim.R. 16(K) and, therefore, the court should have
precluded Dr. McPherson’s testimony at trial.
3. Crim.R. 16(K)
During a side bar conference, Dr. McPherson stated that she possessed
a copy of her expert report but had lost her file. Defense counsel objected to Dr.
McPherson’s testimony, arguing that the state had failed to turn over her expert
report in discovery. The state responded that Dr. McPherson was a defense witness
in the 2017 trial and thus, defense counsel would already have her report because it
was the same report that defense counsel provided to the state in discovery for the
2017 trial. The trial court overruled the objection.
Crim.R. 16(K) requires that experts generate written reports and that
those reports be disclosed to the opposing party 21 days prior to trial. Crim.R. 16(K)
provides:
An expert witness for either side shall prepare a written report
summarizing the expert witness’s testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert's
qualifications. The written report and summary of qualifications shall
be subject to disclosure under this rule no later than twenty-one days
prior to trial, which period may be modified by the court for good
cause shown, which does not prejudice any other party. Failure to
disclose the written report to opposing counsel shall preclude the
expert’s testimony at trial.
The purpose of Crim.R.16(K) is to prevent “either party from avoiding
pretrial disclosure of the substance of expert witness’s testimony by not requesting
a written report from the expert, or not seeking introduction of a report.” Crim.R.
16(K), 2010 Staff Notes.
In Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, the
Ohio Supreme Court noted that “[e]ffective July 1, 2010, Crim.R. 16 underwent
comprehensive changes in large part to strengthen the protections of a defendant’s
constitutional due-process rights to a fair trial.” Id. at ¶ 44, citing Grove, Criminal
Discovery in Ohio: “Civilizing” Criminal Rule 16, 36 U.Dayton L.Rev. 143, 144-145
(2011). The changes to Crim.R. 16 promote “more open discovery,” leveling the
playing field by strengthening the defendant’s right to know the evidence the state
will present against him or her at trial. Id.
The state conceded at trial that it did not comply with Crim.R. 16(K)
because it did not ask Dr. McPherson to prepare an expert report and did not furnish
an expert report to the defense. Additionally, the record is undisputed that the state
did not comply with the 21-day deadline as required by Crim.R. 16(K). The state
contends that defense counsel was already in possession of the expert report because
of the 2017 trial and Dr. McPherson did not prepare a new report for retrial. Thus,
according to the state, Ferricci was not surprised by Dr. McPherson’s report or
testimony because the report had already been disclosed and it was permissible for
the state to use her expert report. Although the separate opinion might agree with
the state, this writer cannot.
First, under the plain language of Crim.R. 16(K), the state — just like
the defense — is mandated to provide and disclose all expert reports from expert
witnesses the state intends on calling to testify to trial. This did not happen. If the
state wished to call Dr. McPherson, it was obligated to provide the defense with her
expert report — even if the defense already had a prior report that Dr. McPherson
had authored on behalf of the defense for the 2017 trial. Accordingly, the state’s
violation of Crim.R. 16(K) should have precluded Dr. McPherson from testifying.
See State v. Fowler, 7th Dist. Columbiana No. 20 CO 0002, 2020-Ohio-2854, ¶ 39
(Crim.R. 16(K) limits a trial court’s discretion and requires the expert testimony
excluded); State v. Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700, 2019-
Ohio-2985, ¶ 54-55 (exclusion of expert testimony is the only remedy provided for
under Crim.R. 16(K)).
In a footnote, the separate opinion finds that the state’s
noncompliance with Crim.R. 16(K) was not prejudicial because the defense had a
copy of Dr. McPherson’s expert report from the first trial. It is this writer’s opinion,
that it is irrelevant whether the defense was in possession of Dr. McPherson’s expert
report that she authored in preparation for the first trial because this was a new and
separate trial and she was testifying on behalf of the state. Crim.R. 16(K) does not
qualify or exempt either the state or the defense from its mandated requirements
merely because the party may have in its possession a prior expert report.
Moreover, because this was a new trial and Dr. McPherson was now
testifying as a state’s witness, a new report could have been weighted differently to
now coincide with her testimony in the second trial — causing the defense to seek a
rebuttal expert. In fact, when the defense objected to Dr. McPherson’s testimony
because the state had not furnished an expert report, counsel stated:
But that expert report you are referencing that we provided from the
last trial does not include the information upon which you are inquiring
and it is completely opposite to what you are inquiring.
(Tr. 602.) The state rebutted that the testimony that Dr. McPherson was now
testifying to was information that the prosecutor “inquired to at the last trial, so you
can’t say you’re surprised by it. You sat through the last trial and you heard her
testify.” (Tr. 603.)
In Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, the
Supreme Court held that trial court erred in admitting expert opinion testimony on
topics that were not set forth in a written report prepared in compliance with
Crim.R. 16(K). The purpose of the rule is ‘“to avoid unfair surprise by providing
notice to the defense and allowing the defense an opportunity to challenge the
expert’s findings, analysis, or qualifications, possibly with the support of an adverse
expert who could discredit the opinion after carefully reviewing the written report.”’
Id. at ¶ 48, quoting State v. Perry, 11th Dist. Lake No. 2011-L-125, 2012-Ohio-4888,
¶ 55. See also Fowler at ¶ 40 (allowing testimony beyond the scope of the expert
report may have hampered the defense and improperly bolstered the child victim’s
credibility).
Accordingly, what occurred here at trial is exactly what the purpose
behind the 2010 revisions to Crim.R. 16 were intended to prevent — unfair surprise
that materially prejudices the defense. Pursuant to Crim.R. 16(K), an expert testifies
in accordance with her previously disclosed report; the expert does not testify in
accordance with prior trial testimony. In this case, the state utilized an undisclosed
expert report and combined it with prior trial testimony to circumvent the strict
mandates of Crim.R. 16.
Furthermore, even if Crim.R. 16(K) allows for this tactical maneuver,
the state’s eleventh-hour addition of Dr. McPherson was not in compliance with
Crim.R. 16’s 21-day timeframe. The Ohio Supreme Court made it clear in Boaston
that
[t]he plain language of Crim.R. 16(K) expressly provides the
consequence for failing to disclose an expert’s report as required:
“Failure to disclose the written report to opposing counsel shall
preclude the expert’s testimony at trial.” Crim.R. 16(L)(1) implicitly
acknowledges this remedy: “The trial court may make orders
regulating discovery not inconsistent with this rule.” And while
Crim.R. 16(K) confers some measure of discretion on trial judges, it is
limited to modifying the 21-day requirement “for good cause shown,
which does not prejudice any other party.”
Boaston at ¶ 55.
In this case, the state did not seek to extend the timeframe under
Crim.R. 16 and, in fact, did not advise the court that it supplemented its witness list
until the day that trial was scheduled to begin. This writer is not persuaded by the
state’s claim that it did not inform defense counsel of its intention to call Dr.
McPherson as a state’s witness until it found out that she was not going to be called
as a defense witness. Even if the state could have used a previously retained defense
witness as its own expert, there was nothing to preclude the state from contacting
defense counsel well before the second trial was held to discuss expert witnesses or
to have an expert report prepared. The state chose not to do either. Instead, the
state supplemented its witness list on the day trial was set to begin, February 24,
2020, and defense counsel was unaware of the state’s plan until at least that date, in
violation of the both the letter and the intent of Crim.R. 16.
The state’s violation of Crim.R. 16(K) is further exacerbated by the fact
that Dr. McPherson was not presented or qualified as an expert for the jury. The
state admits it used Dr. McPherson as an expert, yet it failed to present her as such
for the jury. We are cognizant that the Ohio Supreme Court has held that “no plain
error occurs when the state fails to formally tender an expert.” State v. Thompson,
141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 124. But in this case, our
review is not for plain error. Moreover, not only did the state fail to formally tender
Dr. McPherson as an expert, the court never qualified Dr. McPherson as an expert
witness.3
The parties do not dispute that Dr. McPherson is an expert in the field
of forensic psychology and is trained in the field of interviewing techniques with
individuals in sex abuse cases. Although she had already been qualified as an expert
3 Compare defense counsel’s actions in qualifying its expert witness, Dr. Leo.
After
asking Dr. Leo about his extensive background and qualifications, defense counsel
queried:
Defense: Dr. Leo, are you regarded as a leader if not the leading researcher in
your field?
Dr. Leo: I think I’m just the oldest.
Defense: Your Honor, at this time, I'd like to offer Dr. Leo as an expert
witness in the general sciences of social psychology and criminology and the
specific study and practice of police interrogations, psychological coercion,
and the making of false statements, admissions, and confessions.
State: I have no objection to him being found as an expert in his field of study,
Your Honor.
Court: Thank you. He will be designated an expert in that area of social
sciences and confessions.
in the first trial, this trial was a separate trial and must be treated as such. While
defense counsel, who retained Dr. McPherson in the first trial, does not dispute her
qualifications as an expert, this writer does not find that to be a determinative factor.
Evid.R. 702 governs the admissibility of expert testimony. A witness
may testify as an expert if all of the following apply: (1) the witness’s testimony
relates to matters beyond the knowledge or experience possessed by lay persons or
dispels a misconception common among lay persons; (2) the witness is qualified as
an expert by specialized knowledge, skill, experience, training, or education
regarding the subject matter of the testimony; and (3) the witness testimony is based
on reliable scientific, technical, or other specialized information. Evid.R. 702.
The purpose of expert testimony is to assist the trier of fact in
determining a fact, issue, or understanding the evidence. In re Leska, 8th Dist.
Cuyahoga No. 63417, 1993 Ohio App. LEXIS 1314 (Mar. 4, 1993). Evid.R. 702 “is
rooted in the fact that the jury is unable to draw proper inferences from the facts in
certain situations. An expert witness, however, is qualified to arrive at such
conclusions by reason of his or her expertise in a particular field.” State v. Campbell,
1st Dist. Hamilton Nos. C-010567 and C-010596, 2002-Ohio-11432, ¶ 31.
The state did not request that Dr. McPherson be qualified as an expert
witness, and the court never classified her in that manner. During one of defense
counsel’s objections, defense counsel noted as much, stating: “He [the prosecutor]
is using her as an expert. He hasn’t established her [sic] that she’s an expert. He’s
asking her [sic] for her to offer opinions.” (Tr. 600.) The prosecutor did not dispute
that Dr. McPherson was testifying as an expert witness, but instead replied that
defense counsel already had Dr. McPherson’s report from the first trial.
Clearly, Dr. McPherson was not testifying as a lay witness because she
had no firsthand knowledge of the subject of her testimony. She never interviewed
C.W., and therefore, her opinion could not have been one “that a rational person
would form based on the observed facts” under Evid.R. 701.
Rather, Dr. McPherson testified based on her review of the interviews
conducted by others with C.W. For example, she opined that the police officer who
interviewed C.W. had not received training in interviewing children in sex abuse
cases and that the officer’s interview of C.W. was not a quality forensic interview.
She told the jury that based on her knowledge of disclosures of sexual abuse, it is
important for an interviewer to ask questions of a child in the correct way and that
time and memory may have an effect on a child’s disclosure of sexual abuse.
Additionally, Dr. McPherson testified regarding a three-year-old’s understanding of
sexual activity.
Accordingly, the state sought to present Dr. McPherson as an expert
yet failed to tender her as an expert to the jury. Without qualifying Dr. McPherson
as an expert, it was improper for the state to ask the jury to draw certain inferences
based on her testimony. This failure is compounded by the state’s reliance on Dr.
McPherson’s testimony to persuade the jury that C.W.’s disclosure to his parents
was, in fact, the most reliable. Accordingly, based on the forgoing, even if the state
was permitted to call a defense-retained expert, the state violated Crim.R. 16(K) and
therefore, should not have been permitted to present Dr. McPherson as its expert
witness.
4. Prejudicial Error
Having found that the trial court erred in allowing Dr. McPherson’s
testimony, we must determine whether that error is harmless. Crim.R. 52(A)
provides that “[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” Under the harmless-error standard of
review, the state “bears the burden of demonstrating that the error did not affect the
substantial rights of the defendant.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-
297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct.
1770, 123 L.Ed.2d 508 (1993). In most cases, in order to be viewed as “affecting
substantial rights,” “‘the error must have been prejudicial.’” (Emphasis deleted.)
State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting
Olano at 734. Accordingly, Crim.R. 52(A) asks whether the rights affected are
“substantial” and, if so, whether a defendant has suffered any prejudice as a result.
State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24-25.
In State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d
1256, the Ohio Supreme Court reiterated the three-part analysis established
previously in Morris to guide appellate courts in determining whether the erroneous
admission of evidence affected the defendant’s substantial rights so as to require a
new trial or whether the admission of that evidence was harmless error under
Crim.R. 52(A):
First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. * * *
Second, it must be determined whether the error was not harmless
beyond a reasonable doubt. * * * Lastly, once the prejudicial evidence
is excised, the remaining evidence is weighed to determine whether it
establishes the defendant's guilt beyond a reasonable doubt.
Harris at ¶ 37, citing Morris at ¶ 27-29.
In addition, the conduct of the prosecutor “may combine with an
evidentiary error to cause greater impact.” Morris at ¶ 31 (finding state’s use of
gruesome slides during the penalty phase appealed to the jury’s emotions and
prejudiced the defendant). “[B]latent prejudice may override even a strong case and
require a new trial.” Id. at ¶ 32.
Although the separate opinion does not find an error in permitting Dr.
McPherson to testify in general, the panel agrees that blatant prejudice occurred in
this case because the state elicited testimony from Dr. McPherson that she was
retained by the defense and then repeatedly used this information during its closing
argument as an attempt to bolster her testimony. These statements are not harmless
beyond a reasonable doubt when the case hinges on a credibility contest amongst
witnesses.
During direct examination, the state asked Dr. McPherson how she
became involved in this case. Dr. McPherson replied, “I was retained by the
defense.” (Tr. 584.) During closing arguments, the state again highlighted that the
defense had retained Dr. McPherson:
Well, you also learned from a child psychologist, Dr. Sandra
McPherson, who, you know, came out and testified — she was actually
retained by the defense, so she’s, you know, not here — well, she’s here
to educate you. And I called her as a witness, even though she was
retained by the defense, because I felt her information was extremely
important for you to consider as you deliberate this case.
The fact that Dr. McPherson was first retained by the defense has no
relevance to any issue before the jury. Additionally, identifying Dr. McPherson as a
defense-retained witness serves only to invite the jury to give undue weight to her
opinion. Indeed, that characterization forces the defendant to involuntarily “vouch
for” the credibility of an expert that they have decided not to call as a witness. See
United States v. Walker, 910 F. Supp. 861, 864 (N.D.N.Y. 1995).
That is precisely what happened here. In an attempt to triage this
disclosure, defense counsel was compelled to acknowledge that Dr. McPherson was
retained by the defense and then attempted to explain to the jury why it did so but
did not call the doctor as a witness. (Tr. 614; 959.) The state forced the defense into
a position that risked unfairly neutralizing the effect of any otherwise proper
impeachment of the witness that the defense might undertake.
As noted in Walker at id.:
[I]n criminal proceedings much may turn on the jury’s assessment of
the candor and credibility of a defendant’s attorneys. The jury makes
that assessment unfamiliar with the adversary process, a defense
attorney’s duties in fully exploring the government’s case against his
[or her] client, and the role an attorney plays in developing and
presenting expert testimony. To permit the government to stress that
the defense was in possession of an expert’s negative conclusions but
declined to place those conclusions before the jury raises a real danger
of the jury concluding that the defense had improperly attempted to
suppress adverse facts or opinions.
The import of Dr. McPherson’s testimony cannot be overstated. The
alleged victim was three years old when the incident occurred and seven years old
when he testified at trial. There were numerous inconsistencies with his testimony,
including who was present and what transpired. The child also failed to disclose the
alleged abuse during multiple interviews, indicating to police that Ferricci was “just
going tinkle.” Ferricci testified, denying the allegations, and contended he only
confessed to the crime due to overbearing, coercive interrogation tactics.
Dr. McPherson’s testimony served to bolster the child’s testimony and
explain why his initial disclosure to his mother might differ and should be given
more weight or believed over that of the child’s subsequent disclosures. To illustrate
this point, the state questioned Dr. McPherson about false disclosure and her
previous testimony regarding the percentage of children who falsely disclose abuse.
The state queried:
State: Have you testified to lower numbers than 10 percent in the
neutral setting, closer to 2 or 3 percent and 6 percent in the contested
settings? In this case itself, I believe you testified in that range.
Dr. McPherson: Well, my memory and my reading of the current
research that’s been done is that the more common figure is closer to 2
percent than not, but there have been some studies upwards, up as high
up as 10 percent. But the figures that are associated with the more
difficult cases that can occur in a setting where someone is trying to get
a child to say something and has succeeded in doing so can be * * *
higher. * * *
State: And that’s all affected by the context of the disclosure?
Dr. McPherson: Right. Context is an extremely important variable.
State: How would you classify the context in this disclosure where the
mom just asked her kid how was Mud Day?
Dr. McPherson: Yeah. In making the assumption that that’s what mom
did, and I believe it was something similar to that, it’s the usual thing
* * * That the likelihood of the child saying something like someone put
their penis in the child’s mouth is pretty low unless it actually
happened.
(Tr. 598.)
Dr. McPherson further testified that unless a three-year-old child had
had an unusual experience, “they would not understand that placing a penis in the
mouth of another person is an act that is known to be part of sexual repertoire of
adults. They would not know that.” (Tr. 605.)
In State v. Walls, 2018-Ohio-329, 104 N.E.3d 280 (6th Dist.), the
Sixth District found reversible error when the trial court allowed an expert in child
sex abuse to testify beyond the scope of his written report. The state provided the
expert report to the defense prior to trial but failed to disclose that the expert witness
intended to testify about matters outside of the report, including sexual grooming,
delayed disclosure, or recantation; did not identify the studies upon which expert
relied in forming his opinions; and did not disclose his opinion that one of the
victims was a “troubled young lady with some serious psychological issues” who
likely had been sexually abused in the past. Id. at ¶ 38. The court performed a
harmless-error inquiry and found that the appellant’s substantial rights had been
violated. The court noted that the state intended for the expert’s testimony to carry
great weight with the jury, that there was no physical evidence in the case, and that
the state emphasized the improper evidence by repeatedly referencing the expert’s
testimony in its closing argument. Id. at ¶ 45–51.
In Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700, 2019-Ohio-
2985, the First District found reversible error where the state utilized a detective as
an expert without submitting an expert report in contravention of the plain language
of Crim.R. 16(K). Id. at ¶ 20. The court concluded that the error was not harmless
because the state intended the detective’s testimony “‘to carry great weight with the
jury,’” id. at ¶ 21, quoting Walls at ¶ 45, by focusing on the detective’s extensive
experience and training to bolster the victim’s credibility. The court found the state’s
use of the detective’s testimony in this manner extremely troublesome because
without it, “the jury might have considered the lack of physical evidence and the
victim’s credibility in a different light.” Id. at ¶ 22. The court found the state’s
actions even more offensive in its use of the detective’s testimony during closing
arguments. During closing argument, the state repeatedly referred to the defendant
as a “predator” or “wolf.” The First District noted the increase in instances where
prosecutors have engaged in tactics of name-calling and invading the jury’s realm
by rendering personal beliefs. Id at ¶ 30-31; see also State v. Walker, 8th Dist.
Cuyahoga No. 110741, 2022-Ohio-1238 (prosecutor’s comments to end the cycle of
violence invaded jury’s province). Although the First District found the prosecutor’s
name-calling reprehensible, it found the conduct even more egregious and
amounted to plain error when coupled with the state’s use of the detective’s
testimony during closing. “When the jury’s determination of guilt rests solely on the
question of which testimony they believed, the victim’s or [the defendant’s], the
prosecutor’s conduct (denigrating the defendant, calling him a ‘wolf’ and a
‘predator,’ vouching for the state’s witnesses) compounded the problems inherent
in admitting [the detective’s] testimony). Id. at ¶ 39.
Likewise, in this case, the state intended for Dr. McPherson’s
testimony to carry great weight with the jury and wanted the jury to rely on her
expert opinion when analyzing C.W.’s credibility and testimony at trial. Dr.
McPherson testified that she had been licensed since 1976 and was trained in the
forensic interviewing of child sex assault victims. She was the only expert — in fact,
the only witness — to do so. Dr. McPherson opined that a child of C.W.’s age would
not understand that the act of placing a penis in the mouth of another person is part
of adult sexual repertoire unless the child had had an unusual experience.
Furthermore, Dr. McPherson asserted that the likelihood that C.W. would have said
“something like ‘someone put their penis in the child’s mouth’ is pretty low unless it
actually happened.”
The state repeatedly referenced Dr. McPherson’s testimony in closing
argument:
And what did [Dr. McPherson] tell you? She talked about how a three-
year-old, a three-year-nine-month-old child, it is not in their
development. It isn’t in their knowledge set to have the concept of
sexual activity or penises in the mouth unless it is introduced there by
some outside source, right? And what is the outside source in this case?
It is the fact that Michael Ferricci put his penis in [C.W.’s] mouth.
So she also talked about disclosures of sexual abuse by children, how
there are different ways that disclosures occur in different settings.
And she talked about how important it is to question children
appropriately; how you can’t implant ideas into a child’s mind because
a child could just start parroting back things you’re saying.
And I agree 1,000 percent with Dr. McPherson. She’s right, it’s
important because we want to have accurate information. We want to
have information we can rely on in the most important of our affairs
when we make these decisions.
(Tr. 946-947.)
The state referenced Dr. McPherson’s opinion that C.W.’s initial
disclosure to his mother was “an extremely reliable circumstance” that was free from
any “dangers of corrupting the information.” (Tr. 947.) Likewise, the state implored
the jury to rely on Dr. McPherson’s expert opinion when analyzing C.W.’s credibility
and testimony at trial:
I asked you to critically analyze every bit of information you heard in
this case. Critically analyze it and assess it and understand it based on
what you were educated by, frankly, [Dr.] McPherson.
[C.W.] has no conception at three years nine months, of a penis in his
mouth. Not [the prosecutor’s] words; Dr. McPherson’s words.
(Tr. 970-971.)
Additionally, there was no physical evidence in this case that Ferricci
committed rape. The state’s case largely hinged on whether the jury believed the
state’s witnesses over the defense witnesses. Dr. McPherson’s testimony, the state’s
actions in emphasizing her testimony, and the state’s inappropriate comments that
the defense retained Dr. McPherson, all lead this court to conclude that there is “a
reasonable possibility that the testimony contributed” to Ferricci’s conviction. See
Morris, 141 Ohio St. 3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, at ¶ 28.
Based on the facts and circumstances of this case, the error was not
harmless. A finding of harmless error is not justified if the case is a “credibility
contest” between the victim and the defendant and no independent evidence exists.
State v. Burrell, 89 Ohio App.3d 737, 746, 627 N.E.2d 605 (9th Dist.1993). Allowing
into evidence testimony that the state’s expert witness was originally retained by the
defense unfairly prejudiced Ferricci’s constitutional right to a fair trial. It put the
defense in the position of cross-examining a witness it had previously retained and
left defense counsel in the position of having to justify to the jury why the state called
the witness instead of the defense. The error in allowing the admission of Dr.
McPherson’s testimony became unduly prejudicial by the state’s repeated
statements in closing arguments that the doctor had been retained by the defense.
The improper testimony and comments effectively permitted the jury to infer not
only that the defense was attempting to withhold damaging evidence, but that Dr.
McPherson’s testimony and, in turn, C.W.’s allegations against Ferricci, were
deserving of more credibility. We agree with appellant’s argument that this led to
impermissible burden shifting. Essentially, the state’s comments that its own
witness was previously retained by the defense implied that the defense had an
obligation to put forth evidence but instead hid it from the jury. To do so was one of
the many errors that, when viewed together, deprived Ferricci of a fair trial.
If the state is permitted to call defense-retained experts to testify
against the defendant, defense attorneys would be deterred from seeking out such
experts and developing work product on behalf of their clients. Moreover, in no
event should the court allow the state to identify the witness as one that was
previously retained by the defendant, as occurred in this case. Accordingly,
Ferricci’s first assignment of error is sustained and his conviction is reversed. The
remaining assignments of error, also challenging evidentiary rulings and the
evidence presented at trial, are hereby rendered moot. See App.R. 12(A)(1)(c)
Judgment reversed; case remanded for a new trial.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION);
EILEEN T. GALLAGHER, J., CONCURS WITH THE SEPARATE CONCURRING
IN JUDGMENT ONLY OPINION
MICHELLE J. SHEEHAN, J., CONCURRING IN JUDGMENT ONLY:
I respectfully concur in judgment only. While I agree with the
outcome reached by the lead opinion, I disagree with the lead opinion’s holding that
the work-product privilege (or the related attorney-client privilege) prohibited the
state from calling Dr. McPherson to testify in the new trial because she was retained
by the defense as its expert in the first trial. In my view, the defense waived the
work-product privilege when it called Dr. McPherson to testify in the first trial but
no longer retained her as its expert in the new trial. Therefore, the trial court did
not abuse its discretion in permitting the state to call Dr. McPherson to testify in the
new trial. I agree, however, with the lead opinion’s determination that appellant was
substantially prejudiced by the state’s improper elicitation of Dr. McPherson’s
testimony that she was originally retained by the defense and the error was
compounded by the state’s repeated allusions to that information at its closing
argument.
Work-Product Doctrine
The work-product doctrine “protects the attorney’s mental processes
in preparation of litigation, so that the attorney can analyze and prepare their client’s
case free from scrutiny or interference by an adversary.” Watson v. Cuyahoga
Metro. Hous. Auth., 8th Dist. Cuyahoga No. 99932, 2014-Ohio-1617, ¶ 29, citing
Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161,
2010-Ohio-4469, 937 N.E.2d 533, ¶ 55. The doctrine initially arose in the civil
context but has long been extended to the criminal context. United States v. Nobles,
422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).
Crim.R. 16(J) incorporates the work-product doctrine and explicitly
protects material subject to the work product protection from disclosure in criminal
cases. State v. Glenn, 165 Ohio St.3d 432, 2021-Ohio-3369, 179 N.E.3d 1205, ¶ 17.
Crim.R. 16(J) states, in pertinent part:
The following items are not subject to disclosure under this rule:
Materials subject to the work product protection. Work product
includes, but is not limited to, reports, memoranda, or other internal
documents made by the prosecuting attorney or defense counsel, or
their agents in connection with the investigation or prosecution or
defense of the case[.]
Moreover, “the work product doctrine protects material prepared by agents for the
attorney as well as those prepared by the attorney * * *.” State v. Fairchild, 2d
Dist. Darke No. 1481, 1999 Ohio App. LEXIS 4012 (Aug. 27, 1999). In the context
of Crim.R. 16, the courts have treated an expert as an agent of the prosecutor or
defense counsel. See, e.g., State v. Kopchak, 5th Dist. Muskingum No. CT2017-
0036, 2018-Ohio-1136, ¶ 23 (addressing the propriety of the state’s use of a
defense-retained expert, the court explained that it was necessary that the work-
product doctrine protected material prepared by agents for the attorney as well as
those prepared by the attorney).
Issue of First Impression
The highly unusual circumstances of this case appear to present a
novel issue of first impression: whether an expert retained by defense counsel who
testified for the defense in a trial should be precluded by the work-product doctrine
(or the related attorney-client privilege) from testifying for the state in a new trial
when the expert is no longer retained by the defense.4
4The transcript reflects that, at a side bar, the prosecutor represented to the trial
court that Dr. McPherson had told the prosecutor that she has not talked to the defense
since the first trial and there has been no communication between her and the defense.
(Tr. 602.)
Extension of Work-Product Protection to Expert’s Testimony
On its face, Crim.R. 16(J) does not speak to the issue of whether the
state can call a defense-retained expert as a state witness. Crim.R. 16 regulates the
process of discovery and the work-product doctrine typically applies to documents
rather than oral testimony. Vore v. Warden, S.D.Ohio No. 1:13-cv-800, 2014 U.S.
Dist. LEXIS 174175, 13 (Dec. 17, 2014).
However, some courts have extended the work-product protection
incorporated in Crim.R. 16 to the testimony of an expert retained by the defense
counsel, holding that the use of a defense-retained expert by the state was error
pursuant to the work-product doctrine (or the related attorney-client privilege).
Kopchak, 5th Dist. Muskingum No. CT2017-0036, 2018-Ohio-1136, at ¶ 24
(permitting the state to call a defense-retained DNA expert to present evidence
cumulative to its own DNA expert was error); Fairchild, 2d Dist. Darke No. 1481,
1999 Ohio App. LEXIS 4012, 15 (the use of testimony of a defense-retained
fingerprint expert by the state contravened the work-product doctrine); and State v.
Delaney, 10th Dist. Franklin No. 92AP-1408, 1993 Ohio App. LEXIS 4310 (Sept. 2,
1993) (the admission of a handwriting expert’s testimony for the state was in
contravention of appellant’s attorney-client privilege). See also State v. Richey, 64
Ohio St.3d 353, 360, 595 N.E.2d 915 (1992) (“the right to the effective assistance of
counsel includes access to defense experts, and the state’s use of such witnesses
could infringe an accused’s attorney-client privilege”).5 In these cases, the experts
were retained by defense counsel but were not called by the defense to testify at the
trial. The court held that allowing such experts to testify for the state in its case in
chief contravened the work-product privilege.
Waiver of Work-Product Privilege
In the instant case, however, the defense itself had called Dr.
McPherson to testify on its behalf, but chose not to call the expert in the new trial.
By voluntarily calling Dr. McPherson in the first trial, the defense published the
expert’s opinions and waived any work-product protection. See, e.g., DMS Constr.
Ents., L.L.C. v. Homick, 8th Dist. Cuyahoga No. 109343, 2020-Ohio-4919, ¶ 30
(“work product protection belongs to the attorney and an attorney’s actions can
waive work product protection, including by voluntary disclosure of information to
an adverse party”). The expert testifying for the defense distinguishes the instant
case from Kopchak and Fairchild, where the expert was not called by the defense to
testify and there was no waiver of the work-product protection. I would also note
5 But see State v. Freshour, 4th Dist. Pickaway No. 83 CA 32, 1986 Ohio App.
LEXIS 6092, 23 (Mar. 19, 1986) (Crim.R. 16 only regulates the process of discovery and
it “does not prevent the state from engaging in its own investigation and calling an expert
previously hired by an accused on direct examination”); and State v. Webb, 9th Dist.
Summit No. 8546, 1977 Ohio App. LEXIS 9076, 7 (Jan. 5, 1977) (“[O]nce defense counsel
stated he did not intend to call the handwriting expert as a witness, any confidentiality
concerning the expert’s reports or statements was lost. At that point, the expert could no
longer be either an agent of [defendant’s] attorney or a prospective witness. The state
was, consequently, free to call the expert as its witness.”).
that, while appellant asserts work-product protection as grounds for the exclusion
of Dr. McPherson as the state’s expert witness, Dr. McPherson was not retained by
the defense as its expert in the new trial.
I recognize that courts have remarked on the chilling effect of allowing
the state to call a defense-retained expert: “if the State were permitted to call defense
retained experts to testify against the defendant, defense attorneys would be
deterred from seeking out such experts and developing work product on behalf of
their clients.” Kopchak at ¶ 22, quoting Fairchild at 6. See also Freshour, 4th Dist.
Pickaway No. 83 CA 32, 1986 Ohio App. LEXIS 6092 (Grey, J., dissenting)
(“[a]llowing the defendant’s expert witness to be used by the prosecution has an
undeniably chilling effect of the right to competent counsel. Counsel’s ability to
independently investigate the case is hampered by the threat that what he finds will
be used against his own client”). The chilling effect noted by these courts, however,
is minimal under the circumstances of this case, where the defense itself had called
the expert to present her report and opinions in the prior trial.6
6 Regarding the requirement of Crim.16(K), I agree with the lead opinion that State
v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, required the exclusion of
Dr. McPherson’s testimony that went beyond the scope of the written report. In that case,
the expert’s report was provided to the defense but the report did not contain all the
opinions the state elicited from the expert. The Supreme Court of Ohio held that it was
error to admit the expert’s testimony on the topics not set forth in the expert’s report.
Generally, “the purpose of Crim.R. 16(K) is to avoid unfair surprise by providing notice to
the defense and allowing the defense an opportunity to challenge the expert’s findings,
analysis, or qualifications, possibly with the support of an adverse expert who could
discredit the opinion after carefully reviewing the written report.” State v. Perry, 11th
Dist. Lake No. 2011-L-125, 2012-Ohio-4888, ¶ 55. Here, while the defense would be hard
pressed to claim surprise by its own expert’s report, the state elicited testimony from
Prejudice
While I believe neither Crim.R. 16 nor the case law precedent
prohibits the state from presenting the testimony of Dr. McPherson, I agree,
however, with the majority regarding the two questions we sua sponte raised in
connection with appellant’s first assignment of error: (1) did the trial court err when
it allowed into evidence testimony that the defendant retained Dr. McPherson, and
(2) was it error for the state to comment during closing argument on which party
retained Dr. McPherson?
During its case in chief, the state elicited from Dr. McPherson
information that she was originally retained by the defense counsel.7 This
information was arguably irrelevant to whether appellant was guilty of the offense
charged and therefore inadmissible pursuant to Evid.R. 402. In any event, any
purported probative value of the information is substantially outweighed by the
danger of prejudice. Evid.R. 403(A). This testimony served to imply the defense
was attempting to withhold unfavorable evidence from the jury and improperly
Dr. McPherson on the topic of the likelihood of false initial disclosures, which was beyond
the scope of her report. Therefore, in my view, while it was harmless error for the trial
court to allow Dr. McPherson to testify when her report was already in the defense’s
possession, her testimony on the likelihood of the child’s initial disclosure being false
went beyond the scope of her written report and its admission was error pursuant to
Boaston. I note, however, the issue of whether the state complied with Boaston was not
specifically raised by Ferricci on appeal.
7While the defense objected to the state’s calling Dr. McPherson as its witness, the
transcript reflects that the defense did not raise a specific objection when she testified that
she was involved in this case because she was retained by the defense counsel.
bolstered the credibility of Dr. McPherson’s opinion elicited by the state that the
initial disclosure the child made to his mother would likely be the most reliable
version of events.
The harmful effect of the prejudicial testimony was exacerbated by
the state’s repeated allusions to it during the state’s closing argument; the state told
the jury to place significance on the fact that the expert was originally retained by
the defense counsel and it implored the jury to afford more credibility to her
testimony regarding the child’s initial disclosure based on that fact.
Therefore, while the defense waived the work-product privilege and
the state is not precluded from calling Dr. McPherson to testify at the new trial, the
state’s improper elicitation of the fact that she was retained by the defense and
exploitation of that fact at its closing argument resulted in substantial prejudice to
appellant under the circumstances of this case, where there was no corroborating
physical evidence or eyewitnesses and the question of appellant’s guilt hinged
entirely on the credibility of the child’s initial disclosure. For all the foregoing
reasons, I concur in judgment only.