COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70874 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LARRY MARTIN : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 19, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 330970 JUDGMENT : Reversed and remanded for a new trial. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. James A. Draper, Esq. Cuyahoga County Prosecutor Cuyahoga County Public By: Eleanore E. Hilow Defender Assistant Prosecuting Atty. By: Daniel Scully, Esq. The Justice Center Assistant Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113-1569 -2- ROCCO, J.: Defendant-appellant Larry Martin appeals from his conviction for possession of cocaine. Appellant contends the trial court erred when it refused to permit a defense witness' testimony as a discovery sanction and then refused appellant's subsequent proffer of the witness' testimony, and also erred when it limited certain testimony of both a state's witness and appellant himself. Appellant further contends he was denied his right to effective assistance of counsel. This court has reviewed the record, finds the trial court abused its discretion both in excluding appellant's witness' testimony and in rejecting appellant's proffer and thus reverses his conviction. Appellant's conviction stems from a search which was conducted at an apartment complex located in Brook Park, Ohio. During the month of August 1995, members of the Federal Drug Task Force, The Cleveland Police Department, and The Brook Park Police Department 1 began investigating appellant and his uncle, Dwayne McClutchen for suspected drug activity. A confidential reliable informant ("CRI") stated she had purchased drugs "in the company of" the two men. Therefore, surveillance was instituted on appellant, his uncle, and appellant's apartment. 1 During testimony at appellant's trial, his uncle also was referred to occasionally as "Wayne" McClutchen. -3- 2 The police officers observed "a lot of activity in and out" of the apartment. They also observed "what appeared to be drug transactions" between the two men and known prostitutes. During "controlled phone calls," appellant and his uncle stated "they were going to leave the City to purchase large amounts of cocaine." The officers checked telephone company records to verify that the number they were calling was listed in appellant's name. Finally, the CRI was sent into the apartment. When she returned, she told the police officers she had seen cocaine in the apartment. The officers, led by Det. Michael Shank, after verifying the apartment's utilities were listed in appellant's name, thereupon obtained a search warrant. They executed the search warrant on August 24, 1995. As the officers entered the premises pursuant to the warrant, Det. Shank found appellant and his girlfriend in the living room. Appellant was seated on the sofa, counting money. Several boxes in the room contained "paper work" with appellant's name on it. In the bedroom, next to appellant's wallet on the floor, the officers observed a small, round object which later tested positive as a rock of crack cocaine. The officers also found a brown leather jacket in the closet. Appellant identified the coat as his. The inside pocket contained a large amount of currency. During their search, the officers saw women's clothing neither in the closet nor elsewhere in the apartment. 2 Quotes indicate testimony given by a witness at appellant's trial. -4- Since the apartment's lock had been broken upon the officer's entry, they were unable to arrest appellant at the time. Subsequently, however, on December 6, 1995, appellant was indicted on one count of drug abuse in violation of R.C. 2925.11, viz., possession of cocaine in less than the bulk amount. Appellant was initially assigned counsel to represent him, but soon thereafter he retained counsel. Appellant's counsel entered an appearance on February 15, 1996. He filed discovery motions the same day. On February 28, 1995, the state filed its response to discovery as well as its discovery motions. Thereafter, the record reflects that five pretrials were held; all were either continued or reset "at defendant's request." At the sixth pretrial, appellant's trial was set for "April 29, 1996 at 9:00 a.m. at the defendant's request." The record reflects that the parties appeared for appellant's trial as scheduled, but since plea negotiations were being conducted, trial was postponed until 1:45 p.m. By 1:45 p.m., plea negotiations were unsuccessful. At that time, appellant executed a jury waiver form. Trial commenced at 2:00 p.m. over appellant's counsel's protests; counsel told the trial court he had been unable to interview the state's witnesses. The prosecutor disputed counsel's representations. The trial court briefly reviewed the record before agreeing with the prosecutor. The trial court thereupon asked appellant's counsel if he was ready to proceed; counsel responded, "Yes." -5- The state presented the testimony of Det. Shank and Eugenia Whitt of the Cleveland Police Department's forensic laboratory. Subsequently, appellant's counsel moved for acquittal pursuant to Crim.R. 29. The trial court heard arguments on the motion then recalled Det. Shank to clarify his testimony regarding the police investigation into ownership of the apartment. Thereafter, it overruled appellant's motion for acquittal. Appellant's counsel then proceeded with the defense. He 3 called as his first witness, Leslie Garzano. The prosecutor objected to her testimony on the ground appellant had never responded to the state's request for discovery. The trial court checked its file, sustained the prosecutor's objection, and, in addition, upon the state's further objection, refused to permit counsel to proffer Leslie Gargala's testimony into the record. The trial court thereafter noted on the record that Gargala had been present in the courtroom since the commencement of the proceedings. The trial court, however, permitted appellant's counsel to recall Det. Shank to the stand. Appellant then testified in his own behalf. He stated numerous people had access to his apartment, since he had given his uncle a key. His uncle "stayed there" and also permitted his girlfriend and his daughters to visit. The trial court sustained the state's objection when appellant offered a statement concerning 3 During his testimony, and on appeal, appellant refers to this person as "Leslie Gargala". Hence we will refer to her as Leslie Gargala. -6- his uncle's reputation. Appellant further testified his 4 "fiancee," whose last name he was unable to spell, lived in the apartment with him. He stated the over eighteen hundred dollars in cash found by the police officers was money for his fiancee to start attending "nail technical school." Subsequently, the trial court found appellant guilty of violation of R.C. 2925.11. Following a presentence investigation and report, appellant was sentenced to a term of incarceration of eighteen months. Appellant has filed a timely appeal of his conviction; he presents five assignments of error for this court's review. Appellant's first two assignments of error are related; therefore, they are addressed together as follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY EXCLUDING THE TESTIMONY OF A DEFENSE WITNESS AS A SANCTION FOR FAILING TO PROVIDE DISCOVERY TO THE PROSECUTION AND THEREBY VIOLATED THE APPELLANT'S RIGHT TO PRESENT TESTIMONY IN HIS DEFENSE AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF OHIO. THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO PROFFER THE TESTIMONY OF A DEFENSE WITNESS AFTER IT PRECLUDED THAT WITNESS'S (SIC) ENTIRE TESTIMONY. Appellant argues the trial court abused its discretion when it refused to permit both the testimony of his fiancee and his subsequent proffer into the record of her testimony. Appellant contends the trial court's action was not only unjustified, but it essentially prevented him from presenting an adequate defense to the charge against him. 4 See footnote 3. -7- The trial court based its action on Crim.R. 16(E)(3), which states: (E) Regulation of discovery. (3) Failure to comply. 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 or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. (Emphasis added.) Appellant correctly notes that Lakewood v. Papadelis (1987), 32 Ohio St.3d 1 sets forth the test to be applied when reviewing a sanction imposed by a trial court pursuant to Crim.R. 16(E)(3). The imposition of sanctions for a discovery violation is a matter generally left within the sound discretion of the trial court. Id., at 3; see, also, State v. Harcourt (1988), 46 Ohio App.3d 52. However, the trial court is required to conduct a balancing test prior to imposing a sanction depending upon the circumstances of the case. *** Factors to be considered by the trial court include 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. * * * We hold that a trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery. -8- We emphasize that the foregoing balancing test should not be construed to mean that the exclusion of testimony or evidence is never a permissible sanction in a criminal case. It is only when exclusion acts to completely deny defendant his or her constitutional right to present a defense that the sanction is impermissible. Lakewood v. Papadelis, supra, at 5. (Emphasis added.) In this case, the record reveals the circumstances surrounding the discovery violation were not adequately explored. The trial court's action was not considered; rather, it was precipitous. At defense counsel's mention of his intention to call a witness other than appellant, the prosecutor immediately objected on the ground that there had been no response to an earlier-filed motion for discovery. Defense counsel argued in response that the materiality of the evidence the witness was prepared to give outweighed his dereliction. At this juncture, the prosecutor, who was obviously incensed, interjected that the sole issue for the trial court to address was the discovery violation. She persuaded the trial court, which then focused only on the first and third factors of the test enunciated in Papadelis, viz., surprise to the prosecution and the willfulness of counsel's action. In so doing, the trial court completely ignored the balancing test it was obligated to perform prior to imposing the sanction. State v. Wilmoth (1995), 104 Ohio App.3d 539; Cf., State v. Moon (1991), 74 Ohio App.3d 162. Instead, the trial court simply followed the prosecutor's lead. The following excerpt from the transcript illustrates the nature of the trial court's action: -9- MR. MAXTON [Defense Counsel]: Judge, Your Honor, we'll excuse this witness, if I may proffer what she would have testified. MS. HILOW [Prosecutor]: I will object to that as well. THE COURT: The Court is reviewing Criminal Rule 16. Okay. * * * Based on the testimony, I'm going to grant your motion, Prosecutor Hilow's motion. The Defendant not having disclosed this person as a witness at the request of -- what was the date? MR. MAXTON: Judge, the purpose of that rule is to prevent surprise. The state can hardly protest surprise, that the Defendant's roommate has been called to the stand. MS. HILOW: Objection, Your Honor. First, she is not on a witness list and, second, the State is surprised. We have no knowledge who this person is. I first learned her name when he announced, when he called her to the stand. THE COURT: I'm going to grant the Prosecutor Hilow's motion and the request was February the 28th. Is that the case? MS. HILOW: That's correct, Your Honor. THE COURT: Today for the record -- MR. MAXTON: I object. THE COURT: -- is the 29th of April. All I've heard from Attorney Maxton is that you have not had your discovery. The State has not had any discovery. You may step down. You are excused with the thanks of the Court. MR. MAXTON: May I offer a proffer of what her testimony would have been as far as this -- -10- MS. HILOW: I object before any proffer is made. If she could not testify, what she would say cannot be introduced into evidence as well. THE COURT: Your motion is denied. Please proceed. MR. MAXTON: Thank you. Miss Gargala would simply testify -- MS. HILOW: Objection, Your Honor. THE COURT: I said your motion to proffer her testimony is denied. The foregoing demonstrates two important points. First, before imposing the most drastic sanction available, the trial court completely ignored one of the most important factors enunciated in Papadelis. It could not fulfill its responsibility to consider the impact of its decision on the presentation of appellant's case when it refused outright to hear the evidence the defense witness was prepared to give. Cf., Taylor v. Illinois (1988), 484 U.S. 398. Second, the trial court ignored the general rule that proffers of evidence on direct examination should be freely permitted pursuant to Evid.R. 103(A)(1). See, e.g., Firemans Fund Ins. Co. v. Mitchell-Peterson, Inc. (1989), 63 Ohio App.3d 319; cf., State v. Hartford (1984), 21 Ohio App.3d 29. This court stated the rationale behind the general rule in Cleveland v. Houston (July 28, 1994), Cuyahoga App. No. 65897, unreported: 5 During appellate oral argument appellee's counsel was unable to cite any precedent supporting the prosecutor's rationale for objecting to the proffer of evidence. -11- Ordinarily, it is reversible error for a trial court to refuse to permit counsel to make a proffer of evidence excluded on direct examination. Fireman's Fund Ins. Co. v. Mitchell-Peterson, Inc. (1989), 63 Ohio App.3d 319; State v. Hartford (1984), 21 Ohio App.3d 29. An offer of proof serves the salutary purpose of assisting an appellate court in determining whether the lower court's exclusion of certain evidence was prejudicial to a substantial right of the complaining party. State v. Gilmore (1986), 28 Ohio St.3d 190. In light of the general rule, the prosecutor's objection was ill-advised. Although appellee argued at oral argument the substance of the witness' testimony may be hypothesized from defense counsel's comments, see, e.g., State v. Carlson (1986), 31 Ohio App.3d 72 at 73, nonetheless, on the present record this court cannot determine whether the exclusion of such evidence was prejudicial to appellant's case. State v. Amburgey (1993), 86 Ohio App.3d 635; cf., State v. Gilmore (1986), 28 Ohio St. 3d 190; State v. Harcourt (1988), 46 Ohio App.3d 52. Since this court is hampered in assessing the impact of the exclusion of the evidence on the defense, clearly, the trial court was similarly hindered without an inquiry into the substance of the evidence. The trial court could not adequately determine either the impact of the sanction on appellant's defense or the effectiveness of less severe sanctions. State v. Amburgey, supra; cf., State v. Montes (1993), 92 Ohio App.3d 539; State v. Branham (1995), 104 Ohio App.3d 355. A review of the record reveals the trial court's action in precluding the testimony of appellant's witness as a discovery sanction was ill-considered. Lakewood v. Papadelis, supra. -12- Moreover, its refusal to permit even a proffer of the defense witness' testimony was arbitrary. Therefore, the trial court abused its discretion in both of these matters. State v. Musson (May 28, 1981), Cuyahoga App. No. 42800, unreported. Accordingly, appellant's first two assignments of error are sustained. Appellant's third, fourth and fifth assignments of error are set forth as follows: III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF OHIO WHEN DEFENSE COUNSEL NEGLECTED TO PROVIDE THE STATE WITH A WITNESS LIST UPON THE STATES (SIC) MOTION DEMANDING SAME WHICH PRECLUDED THE PRESENTATION OF MATERIAL TESTIMONY OF A DEFENSE WITNESS. IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING THE APPELLANT THE OPPORTUNITY TO EFFECTIVELY CROSS EXAMINE A STATE'S WITNESS IN VIOLATION OF HIS RIGHT OF CONFRONTATION AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF OHIO. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY PROHIBITING THE APPELLANT FROM TESTIFYING AS TO HIS KNOWLEDGE OF THE CO-DEFENDANT'S REPUTATION AND PRIOR CONVICTION ON THE GROUNDS THAT SUCH TESTIMONY CONSTITUTED HEARSAY. In view of the court's disposition of appellant's first two assignments of error, these assignments of error are rendered moot. Therefore, pursuant to App.R. 12(A)(1)(c), this court need not address them. Appellant's conviction is reversed. This case is remanded for further proceedings consistent with this opinion. -13- This cause is reversed and remanded to the lower court for a new trial. It is, therefore, considered that said appellant recover of said appellee costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., AND *THOMAS J. PARRINO, J., CONCUR. JUDGE KENNETH A. ROCCO *(Sitting by assignment: Thomas J. Parrino, retired, Eighth District Court of Appeals.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .