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State v. Canada1/31/2003
R.C. 4511.19(A)(3) charge (driving with an alcohol concentration of .10 or greater). Appellant now appeals, setting forth the following assignment of error:
. "The trial court erred in excluding the testimony of appellant's expert on the basis that appellant had only given appellee five days notice of the identity of the expert and the subject matter of the expert's testimony and the information provided the state relative to the subject matter was insufficient to satisfy the requirements of the rules of discovery."
. It is well-established that a trial court has discretion to admit or exclude evidence at trial, and a reviewing court should not reverse such a decision absent an abuse of discretion. State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, at , reconsideration denied, 2002-Ohio-7367. The Supreme Court of Ohio has stated that " he term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157.
. The Ohio Supreme Court has addressed this sanction issue before. See Lakewood v. Papadelis (1987), 32 Ohio St.3d 1. The court recognized that, in fashioning a proper sanction for discovery abuse in criminal cases, trial courts must consider several competing interests: the defendant's Sixth Amendment right to present a defense, the state's interest in discovery, and the purposes of the criminal discovery rules. Id. Therefore, the Ohio Supreme Court developed a "balancing test" for determining a proper sanction. The premise of the test is that the trial court should choose the "least drastic sanction possible that is consistent with the state's interest." Id. at 5. In choosing the sanction, the trial court must consider all of the surrounding circumstances, and it should consider the following factors:
. "the extent to which the prosecution will be surprised or prejudiced by the witness' testimony, the impact of witness preclusion on the evidence at trial and the outcome of the case, whether violation of the discovery rules was willful or in bad faith, and the effectiveness of less severe sanctions." Id. If, after considering the factors, the court concludes that exclusion is proper, exclusion is not impermissible unless the exclusion "acts to completely deny defendant his or her constitutional right to present a defense." Id. However, in deciding on the "least drastic sanction" consistent with the state's interest, the court should also recognize that,
. " f a short continuance is feasible and would allow the state sufficient opportunity to minimize any surprise or prejudice caused by the noncompliance with pretrial discovery, such alternative sanction should be imposed. Even citing defense counsel for contempt could be less severe than precluding all of the defendant's testimony." Id.
. In this case, the trial court stated that it considered the Lakewood factors and expressly considered whether a continuance was appropriate. Noting how long the case had been pending and how much time had passed since discovery was supposedly complete, the trial court decided against continuing the case. However, it is also evident in the record that, in fashioning a sanction, the court considered that defense counsel had been previously involved in situations involving late notice, and the court indicated that some "direction from the Court would be appropriate." The record thus creates an inference that the trial court sanctioned the defense for counsel's past behavior, behavior over which appellant had no control. At least one court has held that suc
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