Appeal from the Superior Court of the District of Columbia No. F1322-00. Hon. Natalia M. Combs Greene, Trial Judge.
Before Schwelb, Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
This case raises the question as to whether the trial court erred as a matter of law in finding that the government did not violate aspects of the discovery rules set forth in Super. Ct. Crim. R. 16, and if the trial court did err, whether the error was harmless in light of its decision to provide the defense with an opportunity to seek appropriate relief, which the defense declined to do. Appellant Clemente K. Ferguson was indicted on multiple charges, including armed robbery, attempted robbery while armed, first-degree felony murder while armed, and first-degree premeditated murder while armed. Although he was acquitted of these charges, he was convicted of the lesser included charge of voluntary manslaughter while armed (of Michael McDonald); assault (of Kionta White) with intent to commit robbery while armed; assault (of Kionta White) with intent to kill while armed; possession of a firearm during a crime of violence; and carrying a pistol without a license. He claims on appeal that the trial court erred by not finding violations of Rule 16 by the government with respect to its expert medical witness. We hold that the trial court erred as a matter of law in finding that the government did not violate Rule 16 (a)(1)(E) by failing to provide the defense a written summary, and related information, pertaining to the testimony of the expert that it planned to use for its case-in-chief. We also hold that the trial court erred by concluding that the government did not violate Rule 16 when it failed to provide notice to the defendant in a timely manner that its medical expert would give testimony at trial different from that which he orally conveyed to the defense approximately one and one-half weeks prior to trial. However, we affirm the trial court's judgment of conviction because we conclude that the trial court's error regarding the government's Rule 16 violation was harmless since the court provided an opportunity to the defense to seek appropriate relief, which defense counsel declined to do.
The record shows that the charges against Mr. Ferguson grew out of a drug-related matter. Kionta White and Michael McDonald traveled to New York to purchase marijuana laced with PCP in order to sell it within the District. Upon their return from New York by way of an interstate bus, they discovered that Mr. White's car had a flat tire. Mr. White made some telephone calls and eventually made contact with his friend, Mr. Ferguson. Mr. Ferguson picked the two men up and began to drive them toward Mr. McDonald's home in the Northeast quadrant of the District. According to trial testimony by Mr. White, during the drive, Mr. Ferguson and Mr. McDonald discussed the purchased drugs and the amount of money to be made on their sale. Eventually Mr. Ferguson stopped the car, and he and Mr. McDonald got out and went to the trunk of the car. Mr. White heard a gunshot, exited the car and walked to the rear of the vehicle. He saw Mr. McDonald "on the ground . . . lying on his face" with a bullet wound to the back of his head.
Mr. Ferguson had a gun in his hand, and approached Mr. White. Mr. Ferguson "got real close to [Mr. White . . . [and] put the gun at [his] head." Mr. White "asked him what he was doing" and "moved [Mr. Ferguson's] hand out [of] the way." Mr. Ferguson "pulled [the gun] towards [Mr. White's] chest area" and began "patting [him] down," asking, "Where's it at, where's it at[?]" Mr. White pushed Mr. Ferguson and "ran across the street." Mr. Ferguson shot him and Mr. White "felt the pressure . . . in [his] back as [he] was going across the street." Mr. White "got shot two more times." He "tripped over [a] curb . . . and [he] stopped." Mr. Ferguson "caught up with [him]." The two men "started wrestling . . . in the grass, the dirt." Mr. White ended up "on the ground, on [his] back" with Mr. Ferguson on top of him. Mr. Ferguson hit Mr. White with the gun [a]bout three times." Mr. White was able to get up and began to run in the direction of a Safeway store. He heard "about two more shots," kept running, and eventually "passed out."
Mr. Ferguson testified in his own defense. He stated that after he picked up Mr. McDonald and Mr. White and began driving, Mr. McDonald told him to stop the car. Mr. McDonald and Mr. White got out, went to the back of the car and asked Mr. Ferguson to open the trunk. Mr. Ferguson exited the car and opened the trunk with a key. Mr. McDonald "pulled out a gun" and Mr. Ferguson thought Mr. McDonald "was going to kill [him] [or] . . . rob him." Mr. White was behind Mr. Ferguson. Mr. Ferguson took the gun away from Mr. McDonald. Mr. White "pushed [him] [and] "[t]he gun [went] off." Mr. White was "right on top of [Mr. Ferguson]." Mr. Ferguson "turn[ed] around and shot the gun at [Mr. White]. Mr. White "ran across [the] street." Mr. Ferguson followed him and asked what he was doing." Mr. Ferguson was frightened and thought Mr. White would kill him because of a prior incident between Mr. White and another man about one and one-half years earlier when one of Mr. White's friends had "put a gun to [another man's] head." As Mr. Ferguson and Mr. White fought on the ground and the gun "fell out of [Mr. Ferguson's] hand," Mr. White got away from Mr. Ferguson "and ran down the street." Mr. Ferguson left the scene in his car.
Mr. Ferguson contends that "[t]he government's actions in this case essentially breached every requirement of [Super. Ct. Crim. R.] 16 (a)(1)(E)." He maintains that "[n]notice of the [government's] expert's actual opinions was not written, nor was it timely." He insists that during defense counsel's pre-trial interview with Dr. Anderson, he said "his trial testimony would be that four of the five gunshot wounds were front-entry wounds." He complains that he was not aware that the medical expert's testimony would differ from that conveyed in the interview with defense counsel until mid-way through the actual trial, after the expert's lunch-time examination of Mr. White. He states that the government orally informed him after the examination that Dr. Anderson would testify at trial "that only one of the shots was a front-entry wound." He also argues that "[i]n wrongly finding that there was no Rule 16 infraction whatsoever, the [trial court] abused [its] discretion." And, he asserts that the trial court's "refusal to impose any sanctions on the government here was error."
In response, the government insists that it complied with the Rule 16 discovery requirements in June and August 2000, and on January 10, 2001, "supplemented its discovery response by sending a letter to defense counsel, which stated that the government planned 'to introduce the medical records of the surviving victim, [Mr. White], and may call a treating physician to discuss those records.'" This was followed by a letter of April 24, 2001, identifying Dr. Anderson as the government's medical expert and indicating that he would "testify regarding the severity of Mr. White's wounds and the medical care he received in the hospital." The government further contends that Mr. Ferguson did not challenge the adequacy of the government's notice under Rule 16 in the trial court, and that because Mr. White's medical records had been sent to defense counsel "months before trial," the government had "no reason . . . to anticipate counsel's claim that the government had violated discovery obligations." In addition, the government argues that Dr. Anderson's "characterization of the wounds only changed with respect to three of the five wounds." While Dr. Anderson told defense counsel prior to trial that "all three shots to Mr. White's arm had entered from the front, . . . when he actually examined Mr. White's arms in person, he discovered that one shot to the right arm had entered from the back, and he admitted that he could not determine how the other two bullets had entered the arms." Furthermore, the government argues that Mr. Ferguson has failed to show that he was prejudiced by the difference in the medical expert's testimony.
Super. Ct. Crim. R. 16 (a)(1)(E) provides in pertinent part: "At the defendant's request, the government shall disclose to the defendant a written summary of the testimony of any expert witness that the government intends to use during its case-in-chief at trial. . . . The summary provided under this subparagraph shall describe the witnesses' opinions, the bases and the reasons for those opinions, and the witness' qualifications." See Reed v. United States, 828 A.2d 159, 163 and n.2 (D.C. 2003). The trial court may impose sanctions for the violation of this rule. See Super. Ct. Crim. R. 16 (d)(2) ("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 a party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other orders as it deems just under the circumstances."). Where there has been a "failure to make proper disclosure under Rule 16, among the factors which the trial court must consider and weigh are: (1) the reasons for the nondisclosure; (2) the impact of the nondisclosure on the trial of the particular case; and (3) the impact of a particular sanction on the proper administration of justice in general." Lee v. United States, 385 A.2d 159, 163 (D.C. 1978) (citations omitted).
Generally, in reviewing a denial of a request for sanctions, we must ascertain whether the trial court abused its discretion.See Phelan v. City of Mt. Ranier, 805 A.2d 930, 942 (D.C. 2002) (citing Kay v. Pick, 711 A.2d 1251, 1256 (D.C. 1998) (citing In re Q.D.G., 706 A.2d 36 (D.C. 1998)) ("We review the trial court's denial of discovery orders for an abuse of discretion."); see also United States v. Curtis, 755 A.2d 1011, 1014 (D.C. 2000) ("This court reviews a trial court's Rule 16 discovery determination for abuse of discretion.") (citations omitted). The correct interpretation and application of Rule 16, however, is a legal question which we review de novo since "[j]udicial discretion must . . . be founded upon correct legal principles. . . ." In re J.D.C., 594 A.2d 70, 75 (D.C. 1991) (citation omitted); see also United States v. Brown, 303 F.3d 582, 589 (5th Cir. 2002). Moreover, where the defendant is entitled to discovery, and the trial court denies it as well as a request for sanctions, we determine "whether the nondisclosure was prejudicial. . . ." Jackson v. United States, 768 A.2d 580, 584 (D.C. 2001) (citing Kotteakos v. United States, 328 U.S. 750, 764-65 (1945)).
Before examining pertinent legal principles and case law which control our analysis of the Rule 16 issue, we set forth relevant facts. On September 25, 2000, defense counsel sent the government a comprehensive discovery letter covering multiple categories of discovery requests. One of those categories was "expert witnesses" under Rule 16 (a)(1)(E). The letter stated in part: "Rule 16 provides that the government must disclose 'the witnesses' opinions, the bases and reasons for those opinions, and the witnesses' qualifications." The letter also ...