Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanagh

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

January 16, 2009

136437

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v SC: 136437 COA: 270938 Bay CC: 01-001129-FC DONNA ALICE YOST, Defendant-Appellee.

________________ _______________ __________/

On order of the Court, the applicati on for leave to appeal the March 27, 2008 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

M ARKMAN , J. ( concurring ).

Although defense counse l, in my judgment, co mmitted several discovery violations, what I view as most significant about this case is the trial court’s exclusion of the testimony of three key d efense witnesses. I believe that the exclusion of this testimony constituted harmful e rror and deprived defendant of the ability to fully and fairly defend herself at trial. In light of Justice Corrigan’s thou ghtful dissent, I write separately to briefly explain why, in my vi ew, the Court of Appeals analysis is correct.

First, I am concerned that the trial cour t’s exclusion of the te stimony of Dr. Firoza VanHorn, defendant’s psychologist, deprived defendant of her ability to present a meaningful defense as to wh y she had demonstrat ed no emotion in the wake of her daughter’s death. Thro ughout the trial, the pr osecutor invoked defenda nt’s apparent lack of emotional response in the moments and days following her daughter’s death as being indicative of her guilt. Dr. VanHorn’s testimon y was critical in attemp ting to explain that defendant’s unusual emotional responses w ere not indicative of guilt, but rather were characteristic of defendant’s general inability to properly express emotions when faced with difficult life situations. The prosecu tor argued that Dr. VanHorn’s testimony was being offered as proof of “dimin ished capacity,” which this C ourt has held is no longer a

viable defense. See People v Carpenter , 464 Mich 223, 226 (2 001). However, this argument misunderstands the true purpose for which the testim ony was offered, which2

was to explain that defenda nt does not display emotions in a normal manner. The prosecutor repeatedly referen ced defendant’s lack of emoti onal reactions in front of the jury, most notably during closing arguments. By depriving defenda nt of the principal

means available to her to e xplain her inability to respond in a normal fashion to her daughter’s death, defendant wa s seriously undermined in h er ability to respond to the prosecutor and to present a meaningful defense.

Justice Corrigan argues in her dissent that the tr ial court properly limited the testimony of Dr. VanHorn, because it “coul d have properly excluded Dr. VanHorn from testifying at all” in light of the fact that defense counsel “sprun g Dr. VanHorn [on the prosecutor] during tria l on March 23, 2006, after the pr osecution had already rested its case.” However, because the prosecutor had actual notice of Dr. Va nHorn, I respectfully disagree. On Februa ry 21, 2006, the trial court posed the follow ing question to the prosecutor in regard to defendant’s motion to add Dr. VanHorn: “So you’re not objecting to . . . Dr. Firoza Vanhorn?” The prosecu tor responded, “correct .” Further, the prosecutor admitted that “as far as . . . VanH orn, Mr. Czuprynski [defense counsel] did provide an amended witness li st, that’s dated March 2nd of 2005; we received notice of

that.” In other word s, the prosecutor admitte dly had more than a year of actual notice

that defense counsel in tended to call Dr. VanHorn as a w itness, and waived any objection

to this. 1 Thus, I do not believe that defendan t’s failure to formally request that Dr. VanHorn be added as a witness, which was re quired by court order, was indicative of bad

faith.

Second, I also believe that the trial c ourt erred by excluding significant portions of Roxanne Davis’s testimony. Just as with Dr. VanHorn, Davis’s excluded testimony was

not offered to show defendant’s intellectual limitations, but wa s offered, and should have been admitted, to show that defendant’s emotional reactions to traumatic events were

1 Justice Corrigan also argues that defense co unsel “failed to provide the prosecutor with any information whatsoever con cerning expert reports prepared by [Dr. VanHorn] . . . [and] the prosecutor specifically objected to Dr. VanHorn’s testimony on March 23, 2006 because defense counsel only informed the prosecu tor that Dr. VanHorn would testify

about defendant’s diminished capacity, a defense explic itly precluded by an earlier ruling.” I respectfully disag ree with this assessment of th e record. Significantly, it was

the prosecutor who characterized Dr. VanHorn’s tes timony as pertaining to diminished capacity, not defense counsel. Additiona lly, the fact that the pros ecutor was, in fact, able to object as it did to Dr. VanHorn’s propos ed testimony suggests, al though the record is by no means dispositive, that defense counsel did provide the prosecutor with “a written description of the substance of the proposed testimony of the expert, the expert’s opinion” and perhaps “the u nderlying basis of that opin ion,” which is an acceptable alternative, under MCR 6.201(A)(3), to “a re port by the expert.” Once again, I do not view a relatively minor evidentiary violation (i.e., failing to produce an actual report), as justifying the extreme remedy of exclusion.3

abnormal, including, implicitly, her reaction to her daughter’s d eath. Although, as Justice Corrigan points out, defense counsel wa s allowed to reference defendant’s limited intellectual abilities on several occasions, this is distinct from being allowed to present

evidence of defendant’s ability to display normal emotions . An individu al with limited intellectual functions may have complete ly normal emotional reactions, while an individual with above-average intelligence may not have the ability to normally express

emotions. Because Davis was prevented from testifying ab out defendant’s inability to
express emotions in a normal fashion, the trial c ourt erred. Once again, because the prosecutor used this evidence extensively as an indi cator of defenda nt’s guilt, the

defendant was undermined in h er ability to respond to the prosecutor and to p resent a meaningful defense.

Third, I believe that the trial court erred by preventing Dr. Bernie Eisenga, a toxicologist, from testifying. Dr. Eisenga wa s the only expert who could have informed the jury that Monique had inge sted as few as 30 pills of Im ipramine as comp ared to the prosecutor’s theory that sh e had taken as many as 120. Altho ugh I share Justice Corrigan’s concern that defens e counsel violated the trial court’s order by failing to identify Dr. Eisenga at least 30 days before tria l, I nevertheless believe that the trial court erred by preventing Dr. Eisenga from testifying . In determining wh ether a defendant’s expert should be precluded from testifying, this Court has held that the sanction of preclusion is extreme and should be limit ed to only the most egregious cases. People v

Merritt , 396 Mich 67, 82 (1976). In determinin g whether exclusion is proper, the trial

court should examine wh ether the other party will be severely prejud iced by the untimely

disclosure. People v Burwick , 450 Mich 281, 296 (1995).

In context, this discovery violation does not appear to be a most egregious case, given that defendant’s original pathologist retired, thereby req uiring that defense counsel obtain a new pathologist, Dr. Steven Cohle. Dr. Cohle then opined that defendant’s daughter may have ingested significantly fewer pills of Imipram ine than both the prosecutor’s experts and defenda nt’s prior pathologist had estimated. Indeed, Dr. Cohle stated that defendant’s daught er could have ta ken as few as 30 pill s, which may not have been fatal and would provide additional supp ort that her death was not the result of a homicide, but was instead due to a heart defect . In light of this conclusion, Dr. Cohle recommended that defendant obtain an expert t oxicologist to testif y about the number of pills in her daughter’s system, which trigge red defendant’s request to add Dr. Eisenga relatively shortly before trial. Under these circumstances, I do not believe that defendant was attempting to ambush the pr osecutor. Rather, it was not until the eve of trial that defense counsel realized that a toxicologist was needed to rebut the opinion of the prosecutor’s experts that defendant's daughter ha d ingested up to 120 pills. Further, the prosecutor had already secured a toxicologist who could have been used to refute Dr. Eisenga’s testimony. Thus, it is unclear how th e prosecutor would ha ve been prejudiced, much less “severely” so, by the intr oduction of Dr. Ei senga’s testimony.4

Further, other testimony indicating that defendant’s daughter had probably taken fewer pills than the pr osecutor’s experts suggested does not render the trial court’s exclusion of Dr. Eisenga’s testimony harmless. Without expert testimony about the exact number of pills taken by th e daughter, the jury had no way of determining the extent or magnitude by which the prosecutor’s experts overestimated the amount of Imipramine in her system at the time of her death. A difference of as many as 90 pills constitutes a substantial overestimation, whic h may well have caused the ju ry to conclude that there was a reasonable doubt concerning whether this was actually a homicide. This error, too,

was not harmless.

In sum, the trial court’s exclusion of the testimony des cribed above effectively prevented defendant from mounting any defense to the two most damaging pieces of evidence used by the prosecu tor: defendant’s apparent lack of concern after her daughter’s death and the existence of 120 pills of Imipramine in her daughter’s system. The effective operation of our cr iminal justice system depe nds on the discovery of the truth, and evidence is the lifebl ood of this pursuit. I believe that the trial court erred in depriving the fact-finder of avai lable evidence and, as a resu lt, deprived defendant of a fair trial, and deprived the pe ople of a criminal justice system in which the discovery of

the truth was facilitated.

For these reasons, I agree with the Court of Appeals that defendant is entitled to a

new trial.

C ORRIGAN , J. ( dissenting ).

I respectfully dissent from the order denyi ng the prosecutor’s application for leave to appeal. I would grant leav e to appeal to consider whet her the Court of Appeals erred

when it determined that the trial court’s alleged errors required reversal of defendant’s first-degree murder conviction after a nearly seven week trial. People v Yost , 278 Mich App 341 (2008). I do not believe that the trial court abused its discretion in its various evidentiary rulings. Even if errors occurred, th ey were harmless, particularly in light of the gamesmanship displayed by the defense regarding viola tions of discovery orders. 2
Because the Court of Appeals manifestly erred, I would grant leave to appeal.

I. Background

2 I cannot recall any murder case that involv ed such egregious gamesmanship like submitting seven amended witne ss lists identifying as ma ny as 141 witnesses but ultimately calling only 14 witn esses. The defense witness lists violated court orders intended to restrict these games. Defense counsel failed to furn ish defense experts’ reports, also contrary to court orders.5

Defendant was convicted of first-degree felony murder for the death of her sevenyear-old daughter Monique. The prosecution’s proofs show ed that defendant caused Monique to overdose on Imipram ine, a medication prescribed fo r bedwetting and anxiety. In contrast, defense counsel p resented two theories of the cas e. First, defense counsel argued that Monique herself t ook the pills either to commit suicide or from ignorance of the consequences. Second, defense counsel contended that the levels of Imipramine found in Monique’s body were not fatal and that a heart defect caused her death. Defendant appealed her convictions. The Cour t of Appeals reversed, concluding that the

trial court abused its dis cretion by excluding defense evidence c oncerning her limited intellectual functioning, by excluding Dr. Bern ie Eisenga as an expert toxicologist, and by permitting the prosecution to elicit testimony about defe ndant’s involvement with

Child Protective Services without limit ing the nature of such testimony.

Specifically, the Court of Appeals ruled that two defense exp erts were crucial and

the exclusion of their testim ony deprived defendant of a fair trial: a psychologist, Dr. Firoza VanHorn, and a toxicologist, Dr. Eisenga . The Court of Appeals failed, however,

to consider the trial court’s ruli ngs regarding these experts in li ght of a series of discovery abuses by the defense. The trial court’s ru lings fell within the range of principled

outcomes and in accordan ce with established caselaw, court rules, and statutes governing discovery because of defense counsel’s serious and persiste nt discovery abuses. Any remaining errors were harmless.

II. Analysis

A. The Trial Court’s Exclusion of Ev idence Concerning De fendant’s Limited Intellectual Functioning

The trial court excluded p art of the testimony offered by defendant’s daughter and the testimony of Dr. VanHorn concerning defendant’s intellect ual capacity. The prosecutor argued that, through this testimo ny, defendant improperly sought to establish “diminished capacity,” a defense restricted by People v Carpenter , 464 Mich 223 (2001).

In Carpenter , we explained that “the Legislature has signified its intent not to allow

evidence of a defendant’s lack of mental capacity short of legal insanity to avoid or reduce criminal responsibility by negating specific intent.” Id . at 241. The Court of Appeals concluded that eviden ce regarding defendant’s limit ed intellectual functioning was not “diminished capacity ” evidence becau se it was not being offered to negate specific intent. Rather, the Court adopted the defense argument th at it was offered to explain defendant’s emo tional responses and actions after Monique’s death. The defense sought to introduce evidence of defen dant’s mental capabilities to refute the prosecution’s charge that her emotional responses and other actions were signs of guilt. That is, the defense contended that defenda nt’s limited mental capabilities, and not her guilt, made her respond in unusu al ways. The prosecution has consistently asserted that

this excluded evidence is di minished capacity ev idence, however, and contends that6

allowing such evidence woul d essentially create a “non-i ntent exception” to the prohibition on diminished capac ity evidence set forth in Carpenter . In any event, the trial court’s decision to exclude part of the te stimony offered by defendant’s daughter and the testimony of Dr. VanHorn fell within the range of principled outcomes.

1. Discovery Violations Involving Dr. VanHorn

Although preliminary proceed ings in this case began in 2000, nearly six years elapsed before jury selection began on Febru ary 22, 2006. Two y ears before trial, Dr. VanHorn, a psychol ogist and defense expert, administered tests to defendant at defense counsel’s request. Defense couns el did not file a notice of in tent to presen t an insanity defense or otherwise notify th e prosecution about this witne ss. Personnel from the Center for Forensic Psychiatry thus never examined defendant in co nnection with any insanity or

mental retardation claims. 3 Nor did any independent e xpert interview defendant in

connection with d efense counsel’s purporte d theory about defendant ’s limited intellectual functioning. On February 4, 2005, defense counsel first listed Dr. VanHorn on his fifth amended witness list, calling her an “expert w itness,” without any fu rther explanation.

Counsel failed to file this witness list until af ter the court-ordered d eadline had passed. Further, defense counsel never disclosed Dr . VanHorn’s expert report, contrary to the court’s order compelling production of repo rts by experts. Instead, defense counsel sprung Dr. VanHorn dur ing trial on March 23, 2006, after the prosecution had already

rested its case. 4

3 The Center for Forensic Ps ychiatry examined defendant twice but never in connection with defense claims of insanity or ment al retardation. Defen se counsel initially questioned defendant’s compet ency during preliminary pr oceedings in 2000. On February 8, 2000, personnel at the Center fo r Forensic Psychiatry examined defendant and found her competent to stand trial. Ye ars later, after a remand from this Court in April 2003, I note that Judge William J. Caprathe repeatedly attempted to schedule the trial. On September 16, 2005 , less than one month before an October 11, 2005, trial date,

counsel asserted that defendant was incompetent to assist in her defen se. On September 27, 2005, she was sent to the Center for Forensic Psychi atry and subsequently found competent to stand trial.

4 In his concurring statement, Justice Markman notes that at a hearing on February 21, 2006, the prosecutor did not object to Dr. VanHorn’s testimony. Ante at p 2. His observation, however, yields an incomplete picture of the record with reg ard to issue preservation. Defense counsel still failed to provide actual notice of Dr. VanHorn’s testimony. The prosecutor mainta ined his objection to that fa ilure. First, defense counsel

admitted that Dr. VanHorn was one of several witnesses “disclosed to the prosecutor by a

formal written list of witne sses about two weeks after the cu toff that this Court imposed”

in violation of a court ord er. The prosecutor, during the same Febru ary 21, 2006, hearing, reiterated his concern regarding defense counsel’s disc overy violations, stating,7

Although counsel named Dr. VanHorn on defendant’s fifth am ended witness list, he buried Dr. VanHorn’s name among 140 ot her defense witnesses. Indeed, defense

counsel filed seven amended witness lists befo re trial and buried v arious experts in all

these lists. His sixth and se venth amended witne ss lists each contained 101 potential

defense witnesses. The last two witne ss lists, however, omitted any mention of Dr.

VanHorn. 5

Nonetheless, the court permitted the defen se to call Dr. VanHorn to testify in a

limited fashion so that defense counsel had an opportunity to make a special record. Significantly, the prosecution filed a motion in limine to bar the d efense of diminished capacity on March 21, 2 006, and the trial court granted th is motion on M arch 23, 2006. The court expressed concern that this defense strategy was a b ack door attempt to assert a mental retardation defense under the guise of “limited emotional reactions” stemming from defendant’s alleged limited intellectual ab ility. The trial court also was concerned that the prosecution had no oppor tunity to test defendant regarding her psychological make-up. Moreover, at the time defense counsel called Dr . VanHorn, he had not yet supplied the prosecutor with an y information whatsoever con cerning reports prepared or tests conducted by Dr. VanHorn with respect to defendant’s mental limitations. The only information that defense counsel had give n the prosecutor regarding Dr. VanHorn’s proposed testimony indicated that Dr. Va nHorn would testify about defendant’s diminished capacity, which, as no ted, is a defense restricted by Carpenter

, supra . Under these circumstances, the tr ial court attempted to limit defense counsel’s ambush. 6

“And I just want to place that on the record that, you know, if defense coun sel is calling expert witnesses, that if thes e witnesses have reports that he needs to comp ly with what this Court has ordered previous ly by way of its ord ers.” Moreover, when defense counsel called Dr. VanHorn to testify on March 23, 2006, he failed to provide the prosecutor with any information whatsoever conc erning expert reports prepared by her, again in violation

of the court order to do so . Therefore, while the prosecu tor did not object to Dr. VanHorn’s testimony on February 21, 2006, the prosecutor consistently objected to defendant’s ongoing discovery violations. In addition, the prosecutor specifically objected to Dr. VanHorn’s testimony on M arch 23, 2006, because defense counsel only informed the prosecutor that Dr. VanHorn would testify ab out defendant’s diminished capacity, a defense explicitly p recluded by an earlier ruling.

5 According to the dock et sheet, defense counsel filed hi s sixth amended witness list on February 15, 2006. He filed his seventh ame nded witness list two days later on February 17, 2006. Defense counsel f iled his fifth amende d witness list appr oximately one year earlier, on February 1, 2005.

6 Justice Markman also argue s that any “relatively minor evidentiary violation” committed by defense counsel does not justif y “the extreme remedy of exclusion” regarding Dr. VanHorn’s testimony. Ante at fn 1, p 2. I resp ectfully disagree that the8

Because the trial court could have properly p recluded Dr. VanHorn from testifying at all, 7
its rulings regarding the scope of her testimony were harmless error. 8

2. Testimony of Defendant’s Daughter Roxanne Davis

The trial court excluded a portion of th e testimony given by defendant’s daughter Roxanne regarding defendant’s intellectual cap acity to plan the cri me and defendant’s communication skills. The trial court expresse d concern that such testimony represented impermissible diminished capac ity evidence. In contrast, the Court of Appeals adopted the defense argument that Roxanne could “p roperly testify about defendant’s poor

communication skills and how d efendant’s behaviors might seem unusual because of her ‘slowness’ without running afoul of the rule stated in Carpenter .” Yost

, supra at 359. Even if the Court of Appeals is correct, ho wever, defense counsel ultimately elicited testimony from Roxanne about her mother’s limited intellectua l functioning even though the trial court’s ruling barred such testimony. Therefore, even assuming that Roxanne’s testimony should have been ad mitted, the error was harmless.

Responding to a question from defense counsel, Roxanne stated, “My father

doesn’t have the mental limitations that she [defendant] did, so there was more reading

egregious actions of defense co unsel, including repeatedly vi olating court orders, can be described as “relatively minor.” Ante at pp 6-7.

7 I do not believe that Dr. Va n Horn’s testimony was proper, but that question need not be resolved because Judge Caprat he could have barred her testimony outright. Dr. VanHorn’s testimony about defendant’s limited mental capabilities was inadmissible

under MRE 702 because “MRE 70 2 requires the trial court to ensure that each aspect of an expert witness’s proffered testimony—including the data underlying the expert’s theories and the methodology by which the expert draws conclusions from the data— is

reliable.” Gilbert v Daimler Chrysler Corp , 470 Mich 749, 779 (2 004). Defense counsel provided no data underlying Dr. VanHorn’s theories. Nor did he provide information regarding the methodology by which Dr. VanHorn drew her conclusions. Moreover,

defense counsel did not fulfill the evidentiary requirement of MRE 703 that “[t]he facts or data in the particular case upon which an expert bases his opinion or inference shall be

in evidence.” Because a ll of defendant’s statements to Dr. VanHorn constituted inadmissible hearsay, the trial court prop erly excluded her te stimony. See Staff

Comment to 2003 Amendment of MRE 703 (“The modification of MRE 703 corrects a common misreading of the rule by allowing an expert’s opinion only if that opinion is based exclusively on evidence th at has been introduced into evidence in some way other than through the expert ’s hearsay testimony.”)

8 The Court of Appeals speculated that Dr. VanHorn’s testimony might not have been hearsay, but its speculation was not based on anything in an actual offer of proof. Yost

, supra at 362-364.9

and intellectual conversations.” Defense c ounsel later asked Roxa nne, “How were your mother’s communication skills?” but the prosecuto r objected. On appeal, the Court of Appeals reasoned that “the relevance of any testimony by Roxanne concerning whether her mother was intelligen t enough to carry out the actions necessary to commit the crime was at best marginal.” Yost

, supra at 359. Nevertheless, th e jury heard testimony from her concerning her moth er’s intelligence and mental limitations.

In addition to Roxanne testifying about her mother’s lim ited intellectual functioning, other witnesses offered similar tes timony in the jury’s presence. In one such instance, defense counsel asked a social wo rker, Amy Martinez, wh ether defe ndant had difficulty filling out necessary forms, asking Martinez, “You said she would ask you to help her with filling out forms?” After M artinez asked defense counsel a question to clarify whether he meant her forms, defense counsel again asked, “Yes. Did she have difficulty filling out your fo rms?” Moreover, although c ounsel’s statements are not evidence, defense co unsel invoked defendant’s mental li mitations at least 11 times in his opening and closing ar guments to the jury. Because witnesses other than Roxanne testified regarding defendant’s limited intellectual capacity and the jury heard repeated statements concerning defendant’s mental li mitations in defense counsel’s opening and closing arguments, any error made by the tr ial court in excluding this portion of Roxanne’s testimony was harmless.

B. The Trial Court’s Exclus ion of Dr. Bernie Eisenga as an Expert Toxicologist and Limiting the Scope of Dr. Steven Cohle’s Testimony as an Ex pert Pathologist

1. Discovery Violations Involving Dr. Eise nga and Dr. Cohle

Defense counsel also engage d in discovery abuses with regard to Dr. Eisenga and Dr. Cohle. Before trial, the prosecutor f iled two separate motions to compel discovery. 9
At the hearing on the prosecu tor’s second motion to compel discovery, the prosecutor

advised the court that he ha d not received amended witness lists that defense counsel

claimed to have furnished. Moreover, the prosecutor challe nged the propriety of defense counsel’s amended witness list, which contained entries such as, “all persons named or otherwise identified in the police reports relat ed to this case” and “all persons named or

otherwise identified in the FI A-DDS records and reports related to the agency’s contact with Donna Yost or her family members.” Defense counsel responded that he “threw those in, in case we—we need anyone during trial.” At this same hearing, defense

counsel advised the trial court that Dr. La urence Simson, the defense’s expert witness concerning forensic pathology, had moved to Ar izona and that defense counsel was in the process of finding a substitute expert.

9 The prosecutor filed its first motion to comp el discovery on July 23, 2004. Several months later, the prosecutor filed its second motion to compel discovery on November 12, 2004.10

Even though the court had already set th e case for trial approximately one month later on February 16, 2005, the trial court instead held hearings on that day re garding, in relevant part, defense counsel’ s filing of two additional ame nded witness lists containing

at least 12 more witnesses and five more doctor s. He filed both list s several days after the trial court’s filing deadlin e had passed. The prosecutor objected because he had no

idea who those five new doctors were or for what purpose the defense intended to call them. In an attempt to p revent further ambushes regard ing the defense’s evolving witness lists, the trial court held that before either side would be permitte d to add any more witnesses, that side first must file a motion and obtain court approval at least 30 days before the trial. Defen se counsel agreed that permitting additions to th e witness lists only by motion was “appropriate.” He furt her suggested, “How about if I submit a finalized witness list by Friday that eliminates those that y ou’ve ordered to be stricken

and eliminates those doctors that I’ve indicat ed to Mr. Sheeran shou ld be omitted. And we’ll make Friday’s list, the official list? Is that agreeable?” The prosecutor agreed with counsel’s suggestion, and the trial court noted the agreemen t on its “Action in Court” document for February 16, 2005.

Over one year later, the day before trial was scheduled to be gin on February 21, 2006, defense counsel moved to add a new expert path ologist and a new expert toxicologist. Counsel requested to have Dr. Cohle replace Dr. Si mson as the defense expert pathologist. Like Dr. VanHorn, Dr. Cohle appeared on defendant’s fifth amended witness list identified only as “expert witne ss,” but counsel failed to include him on

defendant’s seventh and final witness list. Ad ditionally, he sought to present Dr. Cohle,

in direct violation of the tria l court’s previous order that all new witnesses be admitted only by formal motion at least 30 days before trial. Nevertheless, the trial court permitted Dr. Cohle to testify on defendant’s behalf.

On February 21, 2006, defen se counsel sought to add Dr . Eisenga as a new expert toxicologist. Dr. Eisenga di d appear on defendant’s sevent h amended witness list. But

defense counsel failed to file a formal motion to present Dr. Eisenga as a witness until the day before trial, again in violation of the court’s order. Defense counsel explained that he neglected to follow the ord er regarding the addition of new witnesses because “it completely slipped my mind.” The prosecutor objected to defense counsel’s “very very late amendment” of Dr. Eisenga as an expert and requested that if the court allowed Dr. Eisenga to testify, defense co unsel must at the very least comply with MC R 6.201(A)(3), which addresses expert witnesses and requires a party to provide a ll other parties with

additional information about an expert witness and the basi s for the witness’s opinion. The prosecutor also noted, “I have request ed, by way of discovery, reports from any experts. I’ve never received any reports fro m any of his experts. ” Defense counsel responded, “We have no written reports from any of these experts to provide to the prosecutor and that’s why we ha ven’t provided any.” The tr ial court ordered that both parties comply with MC R 6.201 with respect to experts named by either side. It also11

declined to allow defense couns el to add Dr. Eisenga on th e day before trial, in flat

violation of the court’s discove ry order. This was a princi pled decision, in light of counsel’s noncompliance with court orders.

Moreover, any error by the trial court in refusing defendant’s request to add Dr. Eisenga as a witness was harm less because other w itnesses testified regarding the same proofs that Dr. Eisenga woul d have addressed. Defense counsel wi shed to have Dr. Eisenga testify regarding (1) post mortem redistribution, (2) th e standards and practices in obtaining samples to give accurate levels of Imipramine, and (3) the amount of Imipramine necessary to cause death. Bo th Dr. Cohle and Dr. Fleisher testified extensively on the same subject matter. Dr. Cohle testified about po stmortem toxicology, including postmortem redistri bution. Dr. Fleisher’s record ed testimony also addressed the postmortem redistribution that would have occurred when bl ood was taken from Monique’s heart approximately 20 hours aft er her death. Additionally, Dr. Cohle testified that the heart was a poor sour ce of blood when conducting postmortem toxicology, and, as a result, the Imipramine level in Moni que’s blood likely was lower than the prosecutor’s pathologist concluded. Similarly, Dr. Fleisher testified that approximately 10 percent of the Caucasian population doe s not metabolize Imipramine well and poor metabolization would cause elevated levels of the drug. Finally, Dr. Cohle

testified that based on his 24 years of experience as a foren sic pathologist, he would not

have ruled this as a homicide. Therefore, even if the tria l court erred by not permitting Dr. Eisenga to testify, its error was harmle ss because both Dr. Cohl e and Dr. Fleisher testified regarding the same proofs.

2. Limitations Placed on th e Scope of Dr. Cohle’s Testimony

The Court of Appeals also erred when it concluded sua sponte that the trial court committed plain error regarding the limitations placed on the testim ony of defendant’s expert pathologist, Dr. Cohl e. The Court of Appeals c oncluded that the trial court prevented Dr. Cohle from testif ying about “the accuracy of the level of Imipramine in Monique’s blood, the accuracy of the calculation of the number of pills it would take to reach that level, and whether the Imipramine in Monique’s bl ood was sufficient to cause

her death” because the data upon which the opinion relie d was inadmissible hearsay.

This is not accurate. The trial court did no te that the testimony wa s inadmissible hearsay, but the basis for the prosecutor’s objecti on was the lack of reliable testimony or evidentiary support for Dr. Cohle’s conclusi ons. The prosecution moved to exclude the testimony because Dr. Cohle had no support for his opinions rela ting to children. All Dr.

Cohle’s data involved adults , and he admitted that he ha d no authority pertaining to pediatric deaths from Imipramine. In fact, he did not know whether the age of a person

would be a factor. He testified:

I have not seen anything in the literature that would say, you know, a certain drug is more dangerous for a younger person, particularly.12

Although, there are certainly often differen ces in children, you know, and adults, and it’s possible that a drug that is not toxic at a certain level in an adult, might be toxic to a younger person.

Therefore, the prosecutor reasonably argued that Dr. Cohle’s testimony was insufficiently reliable, contrary to the requirement of MRE 702. Accordingly, the trial court acted within its discretion when limiting Dr . Cohle’s testimony on this point.

C. The Trial Court Did No t Abuse its Discretion by Ru ling that Defendant’s Prior Acts of Physical Abuse Towards he r Children were mo re Probative than Prejudicial

Next, defendant sought to exclude ev idence of her extensive history with Protective Services, including evidence of physical abuse, three prior incidents of drug overdoses involving her children, and allegations of sexual abuse. Because the trial court is in the best position to judg e the prejudicial effect or eviden tiary value of a given piece of evidence, “a defendant must meet a high burden to show that a trial court abused its discretion by declining to exclude relevant evidence under MRE 403.” People v Albers

, 258 Mich App 578, 588-589 (2003).

The Court of Appeals concluded that defe ndant’s history with Protective Services was strong evidence of defendant ’s motive, but concluded that its prejudicial nature substantially outweighed its probative value. In contrast, it determ ined that evidence of the three prior drug overdoses involving defendant’s ch ildren was relevant and not unfairly prejudicial. It furth er held that evidence of sexual abuse was relevant and that the probative value of this evidence outweighed its prejudicial nature.

The Court of Appeals only disagreed with the trial cour t’s ruling pertaining to testimony about specific instan ces of defendant physically ab using her children. The trial court, after a hearing, concluded that all the prior acts were highly relevant and none of the evidence of prior acts was unfairly prejudicial. In cont rast, the Court of Appeals

concluded that the trial court abused its disc retion by allowing such prior acts evidence. In any event, the trial cour t allowed the prosecu tor to present proo fs that defendant characterized Monique as a liar for reporting defen dant to Protective Services for specific acts of physical abuse in various statements to the police. As this evidence came in through defendant’s own statem ents, I question the Court of Appeals conclusion that the

trial court abused its discreti on by permitting evidence of prior act s of physical abuse. In concluding otherwise, the Cour t of Appeals simply substituted its opinion for that of the trial court. Again, the trial court acted w ithin the range of principled outcomes when it admitted the prio r acts evidence.

D. The Trial Court Did Not Abuse its Disc retion in Light of the Defense’s Persistent Violation of CaseLaw, Court Rule s, and Statutes Re garding Discovery13

As illustrated by th e above examples, defen se counsel’s actions displayed a degree of gamesmanship that violated well-estab lished caselaw, court rules, and statutes governing discovery. “We have long entrusted the questi on of discovery in criminal

cases to the discretion of the trial court.” People v Lemcool ( After Remand ), 445 Mich 491, 497 (1994). Moreover, “Michigan recogni zes the broad power of the trial court to prevent ambush and surprise thro ugh the use of discovery.” Id . at 498 (quotation marks and citation omitted). In 1995 , this Court adopted Subcha pter 6.200 of the Michigan Court Rules, which provides a series of st andards for discovery. Pursuant to MCR 6.201(A)(1), upon request, a party must prov ide all other parties with “the names and addresses of all lay and expert witnesses whom the party may call at trial.” Additionally, as noted, upon request, a party must provide all other parties with “the curriculum vitae of an expert the party may call at trial a nd either a report by the expert or a written description of the substance of the proposed testimony of the ex pert, the expert’s opinion, and the underlying basis of that opinion.” MCR 6.201(A)(3).

After reviewing the volumi nous record, I conclude that defense counsel violated MCR 6.201(A)(3). He failed to provide the curriculum vitae of many of his experts. And, as the prosecutor advised the trial court, counsel also fa iled to provide reports by the experts or written descriptions of the s ubstance of their testimony. Faced with defendant’s evolving witness lis ts, the trial court tried to prevent ambush trial tactics by ordering that either party attempting to add a new witness after Febr uary 16, 2005, must do so by a formal motion filed at least 30 days before trial. The trial began over one year later on February 22, 2006, yet defense counsel waited until February 21, 2006, to formally move to add his new expert toxico logist. Counsel attempted to justify his violation of the order by explaining that “[a]gain, though, I ha d forgotten that you required us to file a motion to seek permissi on to add anyone and that’s why I’m doing it

at this late date.” Counsel also pleaded ignorance of MCR 6. 201(A)(3), insisted that he had no reports, and failed to produce even written descripti ons of the proffered testimony to give the prosecution, as the rule requires.

Defense counsel similarly violated well-established stat utory requirements regarding the introduction of expert tes timony. MCL 767.94a(1)(b) requires that a

defendant disclose the nature of any defense that she intends to establish at trial by expert testimony. MCL 767.94a(2) requires that the disclosure must o ccur no later than 10 days before trial or at any other time as the cour t directs. A defendant may not “offer at trial any evidence required to be disclosed . . . un less permitted by the court upon motion for good cause shown.” MCL 767.94 a(3). In this case, defense counsel continually ignored these statutory requirements.

III. Conclusion14

In light of defense counsel ’s repeated discovery violati ons, I think that the Court of Appeals erred by ruling that the trial cour t abused its discretion or committed an error requiring reversal. Specifically , the trial court did not abus e its discretion when it opined that if defendant wished to offer exp ert testimony from Dr . VanHorn regarding

defendant’s mental limitati ons and psychol ogical make-up, then the prosecutor was entitled to counter with expert evidence of her psychological make-up. In any event, defense counsel repeat edly injected statements or elicited testimony concerning defendant’s mental limitations in the jury’s presence. Nor is it clear how the trial court abused its discretion by refusing to allow defense counsel to add Dr. Eiseng a as a witness the day before the trial, in direct violation of the court’s order. I do not see how the trial

court’s decisions fell outside th e range of principled outcome s, particularly in light of defense counsel’s gamesmanship.

“The decision whether to ad mit evidence is with in a trial court’s discretion. This Court reverses it only where there has be en an abuse of discretion.” People v Katt, 468 Mich 272, 278 (2003). When the trial court heard argumen ts regarding the prosecutor’s

motion in limine to bar the defense of di minished capacity, the prosecutor had already presented the entire case in chief. At that late stage of the trial, the trial court correctly assessed the impropriety of allowing d efense counsel to provide lengthy testimony regarding defendant’s psychol ogical make-up without giving the trial court and the prosecutor adequate notice.

Moreover, as the United Stat es Supreme Court has stated:

Rules that provid e for pretrial discovery of an opponent’s witnesses serve the same high purpose [as rules en forcing the right to cross-examine]. Discovery, like cross-examina tion, minimizes the risk that a judgment will be predicated on incomp lete, misleading, or even deliberately fabricated testimony. The “State’s interest in prot ecting itself against an eleventh hour defense” is merely one component of th e broader public interest in full and truthful disclosure of critical facts. [ Taylor v Illinois , 484 US 400, 411-412 (1988).]

Here, defense counsel buried various experts in seven amended witness lists. Experts such as Dr. VanHorn and Dr. Cohle appeared on one list, only to be omitted from laterI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk January 16, 2009

d0113 15

lists. Defense counsel did not disclose his purpose for listing these experts, as required by court rules governing discovery. Nor did he furnish experts’ reports, contrary to court

order. The trial court had an interest in both protecting the pr osecution from a defense ambush and facilitating the full and truthf ul disclosure of critical facts. Id . I believe that the trial court attempted to facilitate full disc losure as best it could despite the fact that defense counsel kept playing “hide the ball.”

Therefore, the Court of Appeals manifes tly erred by ignoring defense counsel’s repeated discovery violations a nd by holding that the trial cour t abused its discretion in its attempts to prevent ambush trial tactics. In my view, the trial c ourt did not abuse its

discretion. Because the trial court reached the right result regard ing its evidentiary rulings even if it arguably em ployed the wrong reasons at tim es, I would grant leave to appeal.

H ATHAWAY

, J., not participating. To avoid u nnecessary delay to the parties in cases considered by this Cour t before I assumed office, I fo llow the practice of previous justices in transition and p articipate only in cases that need my vote to achieve a majority for a decision.