WHITE v. STATE

STRUBHAR, VICE-PRESIDING JUDGE:

¶ 1 Kevin Boyd White, hereinafter Appellant, was tried by jury and convicted of Murder in the first degree (21 O.S. 1991 § 701.7[ 21-701.7](A)), in the District Court of Craig County, Case No. CF-95-14, the Honorable James D. Goodpaster, District Judge, presiding. The jury recommended death after finding four aggravating circumstances and the trial court sentenced Appellant accordingly. From this Judgment and Sentence, he appeals.

¶ 2 On February 4, 1995, Appellant beat to death fellow inmate Donald Iwanski at the Northeast Oklahoma Correctional Center [hereinafter NEOCC] over a twenty dollar debt. The contested issue at trial was whether Appellant beat Iwanski to death with malice aforethought or while in a state of voluntary intoxication.

¶ 3 Three inmates testified they saw Appellant get on the "chow" bus after dinner and ride to Building 14 where Iwanski lived. Appellant entered the building with a pipe in his sleeve, went to Iwanski's bunk and beat Iwanski delivering several blows. After the beating, Appellant put the pipe in his sleeve and walked toward the exit. As he reached the exit, he averted his face from the guard station and placed the pipe in a bathroom that was under construction. One of the inmates testified Iwanski told him on the day of the homicide that he was afraid that if he did not repay the debt, he would be "taken out." All three inmates stated that Appellant was not stumbling, staggering, weaving or swaying and that Appellant did not have slurred speech. Deputy Sherriff Eddie Griffin, O.S.B.I. Agent Rick Stephens, and the bus driver, NEOCC Officer Randy Burke, testified that Appellant spoke clearly and did not appear intoxicated when they saw him around the time of the homicide.

¶ 4 Appellant took the stand and testified that in the days preceding the homicide, as well as on the day of, he had been ingesting valium and drinking vodka. Appellant said on the day of the homicide, he took six valium tablets after lunch and consumed more vodka. Appellant remembered being at the dining hall and waiting for Iwanski after dinner so he could get the money he was owed. He remembered being in Building 14, walking down the aisle to Iwanski's bunk, swinging the pipe and landing the initial blow. Appellant claimed he did not remember eating dinner, the bus ride to Building 14, having the pipe in his possession, delivering the blows after the first one or disposing of the pipe. Appellant testified that he had suffered memory loss in the past when he was abusing drugs and alcohol and that when he committed past crimes he was severely intoxicated. Appellant claimed that he did not intend to kill Iwanski, but only intended to go there to get paid. ¶ 5 In his first proposition of error, Appellant claims the trial court committed reversible error by refusing to allow the defense to present its mental health expert in the first stage of trial to support his voluntary intoxication defense. Because we must agree with Appellant that the trial court abused its discretion in prohibiting the mental health expert's testimony, this case must be reversed and remanded for a new trial and this Court will not reach the merits of the other claims raised by Appellant.

¶ 6 Shortly before trial, the defense retained Dr. Phillip Murphy, a licensed clinical psychologist, to examine Appellant and offer evidence in support of Appellant's voluntary intoxication defense. Ten days prior to trial the defense filed a notice of its intent to call Dr. Murphy with a brief summary of his proposed testimony. Thereafter, the State filed a motion in limine to exclude Dr. Murphy's testimony from the first stage of trial based on Hooks v. State, 1993 OK CR 41, ¶ 16, 862 P.2d 1273, cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994). At trial, the State argued that it did not receive adequate notice of Dr. Murphy's proposed testimony because it did not receive a report of Dr. Murphy's findings. Further, the State re-urged that Dr. Murphy was prohibited from giving an opinion on Appellant's intent to kill based on Hooks. The trial court reserved its ruling until the defense announced its intention to call Dr. Murphy, but noted it would hold an in camera hearing to determine the extent to which Dr. Murphy would be allowed to testify if the defense elected to call him during first stage. After the State rested, defense counsel renewed the request to call Dr. Murphy in the first stage of trial and made an offer of proof. The trial court ruled Dr. Murphy would not be allowed to testify in the first stage of trial because the State had not been provided adequate notice of Dr. Murphy's proposed testimony and because Dr. Murphy's opinion was prohibited by Hooks. Because defense counsel objected to the exclusion of Dr. Murphy's testimony and made an offer of proof, we are satisfied under the unique circumstances of this case that the issue has been properly preserved for review.

¶ 7 The issue to resolve is three-fold: (1) Did defense counsel violate the trial court's discovery order by not producing a report of Dr. Murphy's opinion when no report existed; (2) If there was a discovery violation, was the sanction imposed too severe, i.e. was Appellant prejudiced by the exclusion of Dr. Murphy's testimony; and (3) Was Dr. Murphy's opinion prohibited by Hooks.

¶ 8 This Court must determine first whether the criminal discovery code, 22 O.S.Supp. 1996 §§ 2001[ 22-2001] and 2002 [ 22-2002], requires all mental health experts to issue reports of their opinions to comply with the notice provisions of the discovery code.

¶ 9 Title 22 O.S.Supp. 1996 § 2002[ 22-2002](B)(1)(c) provides:

1. Upon request of the state, the defense shall be required to disclose the following:

c. the names and addresses of any witness the defendant will call, other than himself, for testimony relating to any mental disease, mental defect, or other condition bearing upon his mental state at the time the offense was allegedly committed, together with the witness' statement of that fact, if the statement is redacted by the court to preclude disclosure of privileged communications.

¶ 10 This Court must determine if the language "together with the witness' statement of that fact" in section 2002 [ 22-2002](B)(1)(c) requires a report to be made and produced any time a defendant intends to call a mental health witness or whether it only requires defense counsel to file a summary stating the mental health witness' opinion. The plain language of section 2002 [ 22-2002] (B)(1)(c) appears to require defendants to provide a report or statement from the actual witness setting forth the witness' opinion. If defense counsel could satisfy section 2002 [ 22-2002](B)(1)(c) by producing a summary of the mental health witness' testimony, there would be no need for the redaction of privileged communication because a defense attorney would not include privileged communication in a summary. This interpretation is further bolstered by looking at section 2002 [ 22-2002](B)(1)(a) which requires defendants to provide the State with the relevant, written or recorded statements if any of the witnesses the defense intends to call. Section 2002 [ 22-2002](B)(1)(c) presupposes the mental health witness will issue a statement or report since it does not contain the "if any" language of section 2002 [ 22-2002](B)(1)(a).

¶ 11 We realize this holding could create a hardship on indigent defendants. Oftentimes as in this case, indigent defendants have funds only for an evaluation and consequently there is no report to produce because one was not made. This budgetary issue is a matter left to the Oklahoma Indigent Defense System which must allocate the monies it receives from the Legislature prudently to ensure that indigent defendants may comply with the criminal discovery code. Requiring defendants to provide a mental health witness' report fulfills the legislative purpose of the criminal discovery statute which is to provide notice and eliminate "trial by ambush" tactics. Accordingly, we find that section 2002 [ 22-2002](B)(1)(c) requires mental health witnesses to issue statements or reports for production and that Appellant, although not deliberately, did violate the trial court's discovery order by not providing the State with a report from Dr. Murphy even though no report existed.

¶ 12 The issue now becomes whether the exclusion of Dr. Murphy's testimony was too severe a sanction for this discovery violation. The right of the accused to confront the prosecution's witnesses and to present his own witnesses to establish a defense is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). Although the criminal discovery code provides for exclusion of evidence as a sanction for non-compliance, this Court has found in several capital cases that the exclusion of a defense witness was "too severe a sanction." See Allen v. State, 1997 OK CR 44, ¶ 11, 944 P.2d 934, 937. See also Wisdom v. State, 1996 OK CR 22, ¶ 44, 918 P.2d 384, 396; Morgan v. District Court of Woodward County, 1992 OK CR 29, ¶ 8, 831 P.2d 1001, 1005. In so finding the Allen court noted the Sixth Amendment Compulsory Process Clause could be violated by excluding a material defense witness as a sanction for a discovery violation. Allen, 1997 OK CR 44, ¶ 11, 944 P.2d at 937. "Excluding a material defense witness is appropriate only where the discovery violation is `willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence.'" Id. (quoting Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 656, 98 L.Ed.2d 798 (1988)). Where the discovery violation is not willful, blatant or calculated gamesmanship, alternative sanctions are adequate and appropriate. See Allen, 1997 OK CR 44, ¶ 11, 944 P.2d at 937.

¶ 13 In the instant case, the record shows that the trial court did not consider the alleged discovery violation willful. Nor can Appellant's failure to produce a report under these circumstances support a finding that such failure was done to gain a tactical advantage to minimize the effectiveness of the State's cross-examination of Dr. Murphy or to hinder the State's ability to produce rebuttal evidence. The record clearly shows the prosecutor anticipated Appellant's voluntary intoxication defense because he questioned all witnesses about Appellant's sobriety. Further, the State's rebuttal witness testified that although Appellant smelled of alcohol, he appeared sober. The State was well prepared to contest any evidence that Appellant was intoxicated at the time of the homicide to an extent that his mental abilities were so overcome that he could not form the requisite intent to kill.

¶ 14 This Court is acutely aware the adversary process could not function effectively without adherence to rules of discovery and procedure that govern the orderly presentation of facts and arguments that provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case. However, excluding Dr. Murphy's testimony in the first stage of trial denied Appellant the ability to present the foundation of his voluntary intoxication defense and the prejudicial impact is plain. Appellant established, if believed, that he was intoxicated after he ingested six valium tablets and drank vodka the afternoon preceding the homicide. He further testified that he never intended to kill Iwanski and that he could not remember significant portions of the evening of the homicide. Dr. Murphy would have explained the second component of the voluntary intoxication defense, i.e. how Appellant's intoxication affected his mental state and prevented him from forming malice aforethought. Such evidence is critical to establish the defense of voluntary intoxication.

¶ 15 Although Dr. Murphy's opinion would have embraced an ultimate issue to be decided by the trier of fact, it was not prohibited by Hooks. The Hooks court held that a mental health expert could not render an opinion on a defendant's intent to kill unless the opinion related to a cognizable defense such as insanity. Hooks, 1993 OK CR 41, ¶ 16, 862 P.2d at 1279. Voluntary intoxication has long been recognized as a defense to the crime of First Degree Malice Murder. E.g., Cheadle v. State, 11 Okla. Cr. 566, 149 P. 919 (1915). Dr. Murphy should have been free to suggest the inferences the jury should draw from the application of his specialized knowledge to the facts of this case as long as he refrained from merely telling the jury what result to reach. See Cannon v. State, 1998 OK CR 28, ¶ 18, 961 P.2d 838, 846; Romano v. State, 1995 OK CR 74, ¶ 21, 909 P.2d 92, 109, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996). Such opinion evidence is admissible because it assists the trier of fact to understand the evidence and determine a fact in issue and its probative value is not substantially outweighed by the danger of unfair prejudice. See Cannon, 1998 OK CR 28, ¶ 20, 961 P.2d at 846; Romano, 1995 OK CR 74, ¶ 22, 909 P.2d at 109-110, Hooks, 1993 OK CR 41, ¶ 13, 862 P.2d at 1279. Because Dr. Murphy's opinion was admissible and material to the issues at trial and there was no willful discovery violation, we find the trial court's exclusion of Dr. Murphy's testimony in the first stage of trial constitutes reversible error. Allen, 1997 OK CR 44, ¶¶ 11-12, 944 P.2d at 937. Accordingly this case is reversed and remanded to the District Court for a new trial.

¶ 16 Appellant, Kevin Boyd White, was convicted of one count of Murder in the first degree (21 O.S. 1991 § 701.7[ 21-701.7](A)), in the District Court of Craig County, Case No. CF-95-14, the Honorable James D. Goodpaster, District Judge, presiding. The jury recommended the death penalty and the trial court sentenced Appellant accordingly. From this judgment and sentence, he appeals. REVERSED AND REMANDED FOR NEW TRIAL.

CHAPEL, P.J.: CONCUR IN RESULT LUMPKIN, J.: SPECIALLY CONCUR LANE, J.: CONCUR JOHNSON, J.: CONCUR