concluding that the improper exclusion of a defense witness warranted re-sentencing
How later courts described this case
- concluding that the improper exclusion of a defense witness warranted re-sentencing
Written by the judges who cited it.
The opinion
LUMPKIN, Judge,
concurring in result.
I agree the case must be reversed, based on the particular facts and circumstances of this case. I do not, however, subscribe to the flat statement of law that in each instance, a case will be reversed because a judge excluded a defendant’s evidence from trial because a discovery order was violated. Further, I disagree with the statement the case must be reversed because Appellant himself was not at fault.
I joined in the Court’s decision to remand this case for an evidentiary hearing. However, trial counsel should always be aware this *397 Court has typically held that defense counsel must make an offer of proof as to what excluded evidence would be; otherwise, the complaint that the evidence should have been allowed is waived.
Second, the law requires a defendant to bear the brunt of counsel’s errors, unless those errors rise to the level of incompetent counsel. No such allegation is made here. Further, at the evidentiary hearing, the doctor testified he did not prepare a formal report, in part because defense counsel did not want one. Although the record is unclear as to the reason, Appellant must admit that, at least on the surface, this sounds suspiciously as if counsel deliberately failed to. comply with the court’s discovery order. Were this true, and were counsel’s actions not indicative of ineffective counsel, a deliberate disregard of the trial court’s order could warrant exclusion of the evidence. Which leads directly to my third point.
Although Morgan is valid law in this state, so is Wilkerson v. District Court, 839 P.2d 659, 661 (Old.Cr.1992). There, this Court observed that “flagrant” violations of discovery orders by defense counsel which are “designed to conceal a plan to present fabricated testimony or [which are] willful and motivated by a desire to obtain a tactical advantage” could warrant preclusion of the introduction of that evidence at trial. This opinion makes no mention that Wilkerson is being overruled. Therefore, to make broad statements based on Morgan which conflict with existing caselaw is simply ill advised.
These concerns aside, the record before us does not show bad faith on defense counsel’s part concerning the discovery order. On this point, the evidence is conflicting. The judge who presided over the evidentiary hearing came to the conclusion that it was “possible” the testimony of the doctor could have affected the jury’s decision to impose the death penalty. I give such findings great weight. Accordingly, I agree the death penalty here must be vacated and the case remanded for a new sentencing proceeding.