F I L E D

United States Court of Appeals

Tenth Circuit

SEP 20 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTOPHER YOUNG,

Petitioner-Appellant,

v.

RANDY G. WORKMAN, Warden; and

DICK CONNER CORRECTIONAL

CENTER,

Respondents-Appellees.

No. 02-6325

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. 01-CV-1382-C)

Steven M. Presson (Robert W. Jackson with him on the brief) of Jackson &

Presson, P.C., Norman, Oklahoma, for Petitioner-Appellant.

Nancy E. Connally, Assistant Attorney General (W.A. Drew Edmondson, Attorney

General, with her on the brief), State of Oklahoma, Oklahoma City, Oklahoma,

for Respondent-Appellee.

Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and

HARTZ, Circuit Judge.

SEYMOUR, Circuit Judge.
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Christopher Young was convicted of multiple acts of sexually abusing a

child, all after three prior convictions, in violation of Oklahoma law. OKLA.

STAT. tit. 21, §§ 886, 888, 1123. At trial, the court barred Mr. Young from

introducing certain witnesses and documents as a sanction for his counsel’s

failure to turn over the discovery information to the state. In this habeas action,

Mr. Young contends the sanction violated his Sixth Amendment right to present a

defense and resulted in a fundamentally unfair trial. He appeals the district

court’s denial of relief. We affirm.

I.

Prior to Mr. Young’s trial, the state objected to the introduction of several

Department of Human Services (DHS) reports and the testimony of certain

witnesses because defense counsel had failed to provide court ordered discovery

regarding the documents and the nature of the witnesses’ testimony. According to

defense counsel, he had planned to introduce testimony “regarding inconsistencies

in the alleged victim’s version of events” and “documents indicating that the

child’s care givers noticed nothing unusual about the child’s demeanor or

behavior while she was at day care during the relevant period of time.” Aplt. br.

at 11-12. After hearing argument from the parties about whether to admit the

evidence, the court noted it had previously ordered defense counsel to provide the
1

 Section 2002 of the Oklahoma Discovery Code provides, in relevant part:

B. Disclosure of Evidence by the Defendant.

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

disclose the following:

a. the names and addresses of witnesses which the

defense intends to call at trial, together with their

relevant, written or recorded statement, if any, or if

none, significant summaries of any oral statement . . . .

. . . .

3. Upon the prosecuting attorney’s request after the time set by

the court, the defendant shall allow him access at any

reasonable times and in any reasonable manner to inspect,

photograph, copy, or have reasonable tests made upon any

book, paper, document, photograph, or tangible object which

is within the defendant’s possession or control and which:

a. the defendant intends to offer in evidence . . . .

(continued...)

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state with any DHS records he would be relying on, along with more detailed

information regarding the testimony of the proposed witnesses. The court further

noted it had continued the trial so defense counsel could provide the discovery. 

Despite the court’s orders and continuance, defense counsel completely failed to

turn over the discovery information. 

During the trial, the court made a further record regarding the discovery

issue, noting that its decision to sanction counsel by refusing to admit the DHS

reports and the testimony was based on counsel’s refusal to abide by its orders: 

There has been no further discovery by you, [defense counsel], to the state. 

So you did not comply with my order back in April of 1999. As you did not

comply with my order . . . and did not give the state the discovery that I

ordered you to give under 2002,[1] it allows the Court to order certain
1

(...continued)

. . . .

E. Regulation of Discovery.

2. Failure to Comply with a Request. If at any time during the

course of the proceedings it is brought to the attention of the

court that a party has failed to comply with this rule, the court

may order such party to permit the discovery or inspection,

grant continuance, or prohibit the party from introducing

evidence not disclosed, or it may enter such other order as it

deems just under the circumstances.

OKLA. STAT. tit. 22, § 2002 (emphases added).

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sanctions, and the sanction that I imposed in this case was that those

witnesses would not be called as the state still had not – did not have

sufficient information to adequately proceed to trial. I did not want to

continue the trial because it was time to take this case to trial. And that’s a

remedy that I chose.

Tr., vol. IV, at 103–04.

Mr. Young was convicted of three counts of forcible oral sodomy and

twelve counts of lewd or indecent acts with a child. He was sentenced to thirty

years incarceration per count, to run consecutively. On direct appeal, the

Oklahoma Court of Criminal Appeals (OCCA) affirmed. Pursuant to 28 U.S.C. §

2254, Mr. Young then filed a petition for a writ of habeas corpus. The district

court denied relief on all grounds. We granted a certificate of appealability on

only one issue: whether Mr. Young’s trial was rendered fundamentally unfair

when the trial court excluded evidence as a sanction for repeated discovery

violations.
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II.

Mr. Young filed his habeas corpus petition after the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214 (1996). His case is therefore governed by its provisions. See

Williams v. Taylor, 529 U.S. 420, 429 (2000). Under AEDPA, a federal court

may not grant habeas relief on a claim adjudicated on the merits in state court

unless the state court decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or “was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(1), (2). State court fact findings are presumed correct unless

the petitioner rebuts them by clear and convincing evidence. Hale v. Gibson, 227

F.3d 1298, 1309 (10th Cir. 2000) (quoting Smallwood v. Gibson, 191 F.3d 1257,

1265 (10th Cir. 1999)).

A state court decision is contrary to clearly established federal law under

section 2254(d)(1) “if the state court arrives at a conclusion opposite to that

reached by [the Supreme Court] on a question of law or if the state court decides

a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A

state court decision is an unreasonable application of federal law under section
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2254(d)(2) “if the state court identifies the correct governing legal principle from

[the Supreme Court’s] decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Williams, 529 U.S. at 413. The reasonableness of

the state court’s application of federal law is to be evaluated by an objective

standard under which a state court decision may be held reasonable even if not all

reasonable jurists would agree with that conclusion. See id. at 409-10. The

Supreme Court has cautioned “that an unreasonable application of federal law is

different from an incorrect or erroneous application of federal law.” Id. at 412

(emphasis in original). 

On direct appeal to the OCCA, Mr. Young contended his Sixth Amendment

right to present a defense was violated by the sanctions imposed by the trial court. 

The OCCA addressed this issue on its merits, holding that “the district court did

not err in excluding Appellant’s witnesses based on the failure to comply with

discovery as there is no proof the witnesses were material or that appellant was

prejudiced by the sanction.” Aplt. app. at 53-54. 

Mr. Young’s Sixth Amendment rights to compulsory process and a fair

trial, as well as his Fourteenth Amendment right to due process, include the right

to present witnesses in his own defense. Richmond v. Embry, 122 F.3d 866, 871

(10th Cir. 1997) (citing Washington v. Texas, 388 U.S. 14, 18-19 (1967)). As the

Supreme Court has stated,
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[t]he right to offer the testimony of witnesses, and to compel their

attendance, if necessary, is in plain terms the right to present a defense, the

right to present the defendant’s version of the facts as well as the

prosecution’s to the jury so it may decide where the truth lies. Just as an

accused has the right to confront the prosecution’s witnesses for the

purpose of challenging their testimony, he has the right to present his own

witnesses to establish a defense. This right is a fundamental element of due

process of law.

Washington, 388 U.S. at 19. “By necessity, the right of a defendant to present

witnesses in his or her defense includes the right to have the jury hear the

testimony those witnesses are called to give.” Richmond, 122 F.3d at 871 (citing

Rock v. Arkansas, 483 U.S. 44, 55 (1987)). “In presenting such testimony,

[however], the defendant must comply with established rules of evidence and

procedure as required by the state ‘to assure both fairness and reliability in the

ascertainment of guilt and innocence.’” Id. at 871-72 (quoting Chambers v.

Mississippi, 410 U.S. 284, 302 (1973)). 

Certainly, “the state may not arbitrarily deny a defendant the ability to

present testimony that is ‘relevant and material, and . . . vital to the defense.’” Id.

at 872 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)

(further quotation omitted)). Nevertheless, “[w]hile a state may not apply a rule

of evidence mechanistically to defeat the ends of justice, in appropriate

circumstances, the defendant’s right to present relevant testimony may ‘bow to

accommodate other legitimate interests in the criminal trial process.’” Id. (quoting

Michigan v. Lucas, 500 U.S. 145, 149 (1991) (further quotation omitted)). The
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integrity and efficient administration of judicial proceedings constitute such

countervailing interests. See Taylor v. Illinois, 484 U.S. 400, 414-15 (1988)

(noting importance of balancing defendant’s right to present witnesses with

integrity of judicial process and judicial efficiency); United States v. Combs, 267

F.3d 1167, 1179 (10th Cir. 2001) (“[e]ven in the absence of prejudice, integrity

and scheduling considerations alone may justify suppression of otherwise

admissible evidence offered by the delinquent party.” (quoting United States v.

Russell, 109 F.3d 1503, 1511 (10th Cir. 1997))).

Mr. Young must show his trial was fundamentally unfair if he is to

establish a violation of his compulsory process, fair trial, or due process rights:

“‘[i]n order to declare a denial of [fundamental fairness] we must find that the

absence of that fairness fatally infected the trial; the acts complained of must be

of such quality as necessarily prevents a fair trial.’” Richmond, 122 F.3d at 872

(quoting Valenzuela-Bernal, 458 U.S. at 872 (further quotation omitted)). “It is

the materiality of the excluded evidence to the presentation of the defense that

determines whether a petitioner has been deprived of a fundamentally fair trial.” 

Maes v. Thomas, 46 F.3d 979, 987 (10th Cir. 1995). Evidence is material if its

suppression might have affected the trial’s outcome. Valenzuela-Bernal, 458 U.S.

at 868. In other words, “material evidence is that which is exculpatory – evidence

that if admitted would create reasonable doubt that did not exist without the
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evidence.” Richmond, 122 F.3d at 872 (citing Valenzuela-Bernal, 458 U.S. at

868) (further citation omitted)). 

On this record, there is simply no indication that the evidence precluded by

the trial court would have created reasonable doubt had it been introduced. As

the district court noted,

[t]he anticipated witnesses would have testified regarding inconsistencies in

the victim’s version of events. The DHS reports would have revealed that

no one noticed anything unusual about the child while she was at a daycare

center. Testimony regarding the child’s inconsistent statements and

demeanor was heard by the jury throughout the trial. At most, the excluded

evidence would only repeat previously admitted evidence regarding the

child’s credibility, that being statements that the child was upset at [Mr.

Young] and wanted to get him in trouble and that she had made up the story

of molestation.

Aplt. app. at 46. 

In his brief to this court, Mr. Young merely asserts without substantiation

or argument that “[i]t is equally clear that the excluded evidence was material,

and it might have affected the outcome of the trial.” Aplt. br. at 14 (emphasis in

original). Our review of the record supports a contrary conclusion. Given the

other evidence introduced at trial, we are not persuaded the evidence undercutting

the child’s credibility or documenting inconsistent statements would be anything

more than cumulative. 

Rather than analyzing materiality, Mr. Young argues the Supreme Court’s

decision in Taylor “strongly demonstrates that the trial court should not have
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imposed such a drastic and severe sanction.” Id. at 13 (emphasis in original). He

bases his Taylor argument on the fact that the trial court did not make specific

findings that his counsel’s discovery violations were willful or motivated by a

desire to obtain a tactical advantage. See id. The “willful” and “tactical

advantage” language does derive from Taylor. See 484 U.S. at 415. Mr. Young’s

reading of that case, however, is flawed.

In Taylor, the Supreme Court affirmed the trial court’s exclusion of a

witness whose name did not surface until the second day of trial despite the fact

that defense counsel knew the witness’s name before trial. Id. at 403-05. Finding

this violation of the discovery rules to be willful and blatant, the trial court did

not allow the witness to testify. Id. at 405. In ruling that the sanction of

excluding the witness’s testimony did not violate the defendant’s rights under the

Compulsory Process Clause of the Sixth Amendment, the Court focused on the

necessity of balancing interests:

[i]t is elementary, of course, that a trial court may not ignore the

fundamental character of the defendant’s right to offer the testimony of

witnesses in his favor. But the mere invocation of that right cannot

automatically and invariably outweigh countervailing public interests. The

integrity of the adversary process, which depends both on the presentation

of reliable evidence and the rejection of unreliable evidence, the interest in

the fair and efficient administration of justice, and the potential prejudice

to the truth-determining function of the trial process must also weigh in the

balance.

Id. at 414-15. It is clear from the record the trial court here engaged in such
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balancing.

Where a party has failed to comply with a discovery request, and the failure

is “willful and motivated by a desire to obtain a tactical advantage” at trial, then

exclusion of the evidence is “entirely consistent with the purposes of the

Compulsory Process Clause” of the Sixth Amendment. Id. at 415. However, the

Court made it clear in Taylor that while willfulness and seeking of tactical

advantage justified exclusion, it was “neither necessary nor appropriate . . . to

attempt to draft a comprehensive set of standards to guide the exercise of [a

court’s] discretion [in ordering the exclusion of evidence] in every possible case.” 

Id. at 414. Mr. Young’s argument that the trial court did not make a specific

finding of willfulness in this case misses the point of the Court’s case-by-case

approach: such a finding is not required for exclusion to be justified as a sanction

for discovery violations. See Lucas, 500 U.S. at 151-53 (holding exclusion of

testimony as sanction for violating discovery rule does not violate Compulsory

Process Clause as long as exclusion will prevent prejudice to the state and

preserve the integrity of the judicial process); United States v. Nobles, 422 U.S.

225, 241 (1975) (court’s “preclusion sanction was an entirely proper method of

assuring compliance with its order” when counsel refused to comply with court’s

order to submit copy of investigator’s report to prosecution). 

Moreover, although a specific finding of willfulness is not required, the
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clear inference from the trial court’s questioning of Mr. Young’s counsel is that

the court believed counsel’s behavior to be willful.

THE COURT: . . . if I ordered you to get something to me,

would you bring it to me or would you just tell me maybe I should

just come by your office in the event they might be there when I

happen to come by? This order to the state told the state that at some

point in time you might have these records. It is not incumbent upon

the state to call your office every day and say, Mr. James, do you

have those records yet, I’d like to get them. You made absolutely no

effort to get those records to the state or at least even notify the state

I’ve got the records, if you want to come and get them and copy

them, they are available. Isn’t that correct?

MR. JAMES: In response to your question, yes, I would bring

them to the Court because of my respect to the Court.

THE COURT: And I understand. But isn’t it correct that you

did not even notify Ms. High that you had finally gotten those

records and that you – these were the records that you intended

using? Did you even do that?

MR. JAMES: No I did not notify her, no, Your honor.

Tr., vol. IV, at 105-06.

We do not require the trial court to use the word “willful” if the record

clearly reflects the court’s belief that counsel’s violation of a discovery order was

indeed willful. To hold otherwise would create reliance on magic words, which

we decline to do. Cf., e.g., United States v. Kelley, 359 F.3d 1302, 1305 (10th

Cir. 2004) (unnecessary for district court to “recite any magic words” to show it

has fulfilled its responsibility to be mindful of sentencing factors); Wells v. City

& County of Denver, 257 F.3d 1132, 1150 (10th Cir. 2001) (district court
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conducted time-place-manner analysis, despite its failure to say magic words so

indicating); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999)

(in employment disability context, unnecessary for employee to express desire for

reassignment in magic words).

On this record, the exclusion of testimony as a sanction for violation of a

procedural rule did not violate Mr. Young’s constitutional rights. This conclusion

is consistent with our prior decisions. See Combs, 267 F.3d at 1178-80

(upholding exclusion of defense witness based on failure to disclose witness in

accordance with discovery requirement to which parties had assented); Watley v.

Williams, 218 F.3d 1156, 1159 (10th Cir. 2000) (denying habeas writ where state

excluded alibi testimony for violation of state rule requiring listing of alibi

witnesses, even though violation was not willful); United States v. Pearson, 159

F.3d 480, 483-84 (10th Cir. 1998) (upholding exclusion of alibi witness whose

identity defense counsel failed to disclose, despite fact that counsel acted

diligently in informing government as soon as defendant made him aware of

testimony); United States v. Bautista, 145 F.3d 1140, 1151-52 (10th Cir. 1998)

(“[T]he right to present defense witnesses is not absolute. A defendant must

abide by the rules of evidence and procedure.”); Richmond, 122 F.3d at 871-72

(noting state trial court properly excluded evidence of victim’s prior sexual

activity where defendant did not follow procedures set forth in state’s rape shield
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law); Russell, 109 F.3d at 1509-12 (affirming district court’s exclusion of

witnesses as sanction for defense counsel’s violation of mutual witness disclosure

agreement).

Finally, Taylor makes it clear that Mr. Young is bound by the actions of his

lawyer in this situation:

[t]he argument that the client should not be held responsible for his

lawyer’s misconduct strikes at the heart of the attorney-client relationship.

Although there are basic rights that the attorney cannot waive without the

fully informed and publicly acknowledged consent of the client, the lawyer

has–and must have–full authority to manage the conduct of the trial. The

adversary process could not function effectively if every tactical decision

required client approval. Moreover, given the protections afforded by the

attorney-client privilege and the fact that extreme cases may involve

unscrupulous conduct by both the client and the lawyer, it would be highly

impracticable to require an investigation into their relative responsibilities

before applying the sanction of preclusion. In responding to discovery, the

client has a duty to be candid and forthcoming with the lawyer, and when

the lawyer responds, he or she speaks for the client. Putting to one side the

exceptional cases in which counsel is ineffective, the client must accept the

consequences of the lawyer’s [tactical decisions] . . . . Whenever a lawyer

makes use of the sword provided by the Compulsory Process Clause, there

is some risk that he may wound his own client.

Taylor, 484 U.S. at 417-18 (footnote omitted).

For the foregoing reasons, the trial court’s exclusion of certain evidence as

a sanction for defense counsel’s violation of its discovery order and Oklahoma’s

discovery rules was neither contrary to, nor an unreasonable application of,

established federal law. We therefore AFFIRM the district court’s denial of Mr.

Young’s petition for a writ of habeas corpus.