[Cite as Toledo v. McDuffey, 2018-Ohio-5198.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-17-1227
Appellee Trial Court No. CRB-17-04457
v.
Keisha McDuffey DECISION AND JUDGMENT
Appellant Decided: December 21, 2018
*****
David Toska, Chief Prosecutor, for appellee.
Laurel A. Kendall, for appellant.
MAYLE, P.J.
{¶ 1} Following a bench trial, defendant-appellant, Keisha McDuffey, appeals the
June 22, 2017 judgment of the Toledo Municipal Court, convicting her of assault. For
the reasons that follow, we reverse. I. Background
{¶ 2} Keisha McDuffey was charged with assault, a violation of R.C. 2303.13(A),
following a physical altercation at the Quality Bar in Toledo, Ohio, on April 8, 2017.
Just before her June 19, 2017 bench trial, her attorney provided the city prosecutor a list
of three witnesses she intended to call at trial. The city objected on the basis that the
witness disclosure was untimely, and it moved to exclude McDuffey’s witnesses. The
trial court granted the city’s motion.
{¶ 3} The case proceeded to trial. The city called one witness, the victim.
McDuffey testified on her own behalf. Both witnesses agreed that the victim was at the
Quality Bar dancing when McDuffey and her friend entered the bar. The victim and
McDuffey had recently engaged in a verbal disagreement on social media. When they
encountered each other at the bar, an argument again ensued. The victim claimed that
McDuffey and her friend began punching her, and she fought back. McDuffey admitted
that she was the first to land a punch, but she claimed that the victim first swung at her
and missed. Bouncers broke up the fight.
{¶ 4} The trial court found McDuffey guilty. It found that based on McDuffey’s
own admission, she was the primary aggressor because she hit the victim twice after the
victim failed to land her punches. The trial court sentenced McDuffey to ten days in jail,
but suspended the sentence. It also imposed costs.
2. {¶ 5} McDuffey appealed and assigns the following errors for our review:
I. Did the court abuse its discretion when it excluded defense
witnesses, when names and phone numbers were presented to the state on
the day of trial, and the witnesses appeared for trial?
II. Did appellant receive ineffective assistance of counsel when
counsel did not object on the record to the court[’]s exclusion of defense
witnesses?
II. Law and Analysis
{¶ 6} Both of McDuffey’s assignments of error revolve around the exclusion of
her fact witnesses. Her first assignment claims error in the trial court’s decision to
exclude the witnesses, and her second assignment claims error in her attorney’s failure to
challenge the court’s decision to exclude the witnesses.
{¶ 7} McDuffey argues in her first assignment of error that Crim.R. 16(I) governs
the duty to provide opposing counsel with a witness list and does not address a deadline
for providing this list. Accordingly, she argues, the trial court abused its discretion in
excluding her witnesses, and it denied her a fair opportunity to defend against the state’s
accusations. She maintains that there may have been a different outcome had she been
permitted to call her witnesses because they were eyewitnesses to the incident and their
testimony was probative as to what actually occurred.
{¶ 8} Notably, despite the position it took in the lower court, the city appears not
to disagree with McDuffey. It argues that “absent material prejudice, malice, or
3. gamesmanship, the sanctions of dismissal or exclusion of evidence is facially
unwarranted.” It asks us “to provide strong guidance to the trial courts to provide the
surprised party reasonable time to inspect the surprise evidence, but should it be
otherwise relevant and permitted by the rules of evidence, to ultimately allow the
evidence to be admitted.”
{¶ 9} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343
(1987). This is also true concerning a trial court’s decision whether to exclude a
witness’s testimony based on a lack of timely discovery. State v. Conner, 6th Dist. Lucas
No. L-09-1159, 2010-Ohio-6500, ¶ 74. We will not reverse the trial court’s decision
absent an abuse of discretion. Id. An abuse of discretion connotes that the trial court’s
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 10} Just before trial, defense counsel raised “as a preliminary matter” that he
had just that day provided the city’s attorney with a list of three witnesses he intended to
call at trial. The city’s attorney expressed that he had received the list just that afternoon,
he asserted his belief that McDuffey was required to provide a list of potential witnesses
at least seven days before trial, and he moved to exclude McDuffey’s witnesses. Defense
counsel suggested that the city’s attorney could “run their records” and speak with the
witnesses if he desired to do so, but the court deemed that there would not be sufficient
time for this. The court announced: “So I’m going to grant the motion to exclude.”
4. {¶ 11} It is not clear here what rule the city’s attorney was referring to when he
asserted that McDuffey was required to provide her witness list seven days before trial;
Crim.R. 16(I) specifies no deadline for providing witness lists and the parties cited to no
court order or rule setting a deadline. See State v. Roberts, 9th Dist. Wayne No.
16AP0030, 2017-Ohio-9079, ¶ 9 (“Notably, Crim.R. 16(I) does not explicitly provide a
timeframe within which the witness list must be provided.”).
{¶ 12} In any event, we find that exclusion of McDuffey’s witnesses was improper
here because the trial court failed to engage in the analysis required under City of
Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987). In Papadelis, the trial
court, as a discovery sanction, precluded the defendant from calling his trial witnesses
because defense counsel failed to respond to discovery requests from the prosecutor,
which included a request for defendant’s witness list. The Ohio Supreme Court
recognized that then-Crim.R. 16(E)(3) (now Crim.R. 16(L)(1)) permits a trial court to
impose sanctions for discovery violations, however, it cautioned that “the sanction of
exclusion may infringe on a criminal defendant’s Sixth Amendment right to present a
defense, particularly where, as in this case, all the defendant’s witnesses are excluded.”
Id. at 5. It adopted the rationale of a number of other courts across the country and held
that a trial court must inquire into the circumstances surrounding a Crim.R. 16 violation
before imposing such a sanction.
{¶ 13} The court identified a number of factors that a court should inquire into
when considering the circumstances of a discovery violation:
5. Factors to be considered by the trial court include the extent to
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[Cite as Toledo v. McDuffey, 2018-Ohio-5198.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-17-1227
Appellee Trial Court No. CRB-17-04457
v.
Keisha McDuffey DECISION AND JUDGMENT
Appellant Decided: December 21, 2018
*****
David Toska, Chief Prosecutor, for appellee.
Laurel A. Kendall, for appellant.
MAYLE, P.J.
{¶ 1} Following a bench trial, defendant-appellant, Keisha McDuffey, appeals the
June 22, 2017 judgment of the Toledo Municipal Court, convicting her of assault. For
the reasons that follow, we reverse. I. Background
{¶ 2} Keisha McDuffey was charged with assault, a violation of R.C. 2303.13(A),
following a physical altercation at the Quality Bar in Toledo, Ohio, on April 8, 2017.
Just before her June 19, 2017 bench trial, her attorney provided the city prosecutor a list
of three witnesses she intended to call at trial. The city objected on the basis that the
witness disclosure was untimely, and it moved to exclude McDuffey’s witnesses. The
trial court granted the city’s motion.
{¶ 3} The case proceeded to trial. The city called one witness, the victim.
McDuffey testified on her own behalf. Both witnesses agreed that the victim was at the
Quality Bar dancing when McDuffey and her friend entered the bar. The victim and
McDuffey had recently engaged in a verbal disagreement on social media. When they
encountered each other at the bar, an argument again ensued. The victim claimed that
McDuffey and her friend began punching her, and she fought back. McDuffey admitted
that she was the first to land a punch, but she claimed that the victim first swung at her
and missed. Bouncers broke up the fight.
{¶ 4} The trial court found McDuffey guilty. It found that based on McDuffey’s
own admission, she was the primary aggressor because she hit the victim twice after the
victim failed to land her punches. The trial court sentenced McDuffey to ten days in jail,
but suspended the sentence. It also imposed costs.
2. {¶ 5} McDuffey appealed and assigns the following errors for our review:
I. Did the court abuse its discretion when it excluded defense
witnesses, when names and phone numbers were presented to the state on
the day of trial, and the witnesses appeared for trial?
II. Did appellant receive ineffective assistance of counsel when
counsel did not object on the record to the court[’]s exclusion of defense
witnesses?
II. Law and Analysis
{¶ 6} Both of McDuffey’s assignments of error revolve around the exclusion of
her fact witnesses. Her first assignment claims error in the trial court’s decision to
exclude the witnesses, and her second assignment claims error in her attorney’s failure to
challenge the court’s decision to exclude the witnesses.
{¶ 7} McDuffey argues in her first assignment of error that Crim.R. 16(I) governs
the duty to provide opposing counsel with a witness list and does not address a deadline
for providing this list. Accordingly, she argues, the trial court abused its discretion in
excluding her witnesses, and it denied her a fair opportunity to defend against the state’s
accusations. She maintains that there may have been a different outcome had she been
permitted to call her witnesses because they were eyewitnesses to the incident and their
testimony was probative as to what actually occurred.
{¶ 8} Notably, despite the position it took in the lower court, the city appears not
to disagree with McDuffey. It argues that “absent material prejudice, malice, or
3. gamesmanship, the sanctions of dismissal or exclusion of evidence is facially
unwarranted.” It asks us “to provide strong guidance to the trial courts to provide the
surprised party reasonable time to inspect the surprise evidence, but should it be
otherwise relevant and permitted by the rules of evidence, to ultimately allow the
evidence to be admitted.”
{¶ 9} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343
(1987). This is also true concerning a trial court’s decision whether to exclude a
witness’s testimony based on a lack of timely discovery. State v. Conner, 6th Dist. Lucas
No. L-09-1159, 2010-Ohio-6500, ¶ 74. We will not reverse the trial court’s decision
absent an abuse of discretion. Id. An abuse of discretion connotes that the trial court’s
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 10} Just before trial, defense counsel raised “as a preliminary matter” that he
had just that day provided the city’s attorney with a list of three witnesses he intended to
call at trial. The city’s attorney expressed that he had received the list just that afternoon,
he asserted his belief that McDuffey was required to provide a list of potential witnesses
at least seven days before trial, and he moved to exclude McDuffey’s witnesses. Defense
counsel suggested that the city’s attorney could “run their records” and speak with the
witnesses if he desired to do so, but the court deemed that there would not be sufficient
time for this. The court announced: “So I’m going to grant the motion to exclude.”
4. {¶ 11} It is not clear here what rule the city’s attorney was referring to when he
asserted that McDuffey was required to provide her witness list seven days before trial;
Crim.R. 16(I) specifies no deadline for providing witness lists and the parties cited to no
court order or rule setting a deadline. See State v. Roberts, 9th Dist. Wayne No.
16AP0030, 2017-Ohio-9079, ¶ 9 (“Notably, Crim.R. 16(I) does not explicitly provide a
timeframe within which the witness list must be provided.”).
{¶ 12} In any event, we find that exclusion of McDuffey’s witnesses was improper
here because the trial court failed to engage in the analysis required under City of
Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987). In Papadelis, the trial
court, as a discovery sanction, precluded the defendant from calling his trial witnesses
because defense counsel failed to respond to discovery requests from the prosecutor,
which included a request for defendant’s witness list. The Ohio Supreme Court
recognized that then-Crim.R. 16(E)(3) (now Crim.R. 16(L)(1)) permits a trial court to
impose sanctions for discovery violations, however, it cautioned that “the sanction of
exclusion may infringe on a criminal defendant’s Sixth Amendment right to present a
defense, particularly where, as in this case, all the defendant’s witnesses are excluded.”
Id. at 5. It adopted the rationale of a number of other courts across the country and held
that a trial court must inquire into the circumstances surrounding a Crim.R. 16 violation
before imposing such a sanction.
{¶ 13} The court identified a number of factors that a court should inquire into
when considering the circumstances of a discovery violation:
5. 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. Id.
It also held that the trial court must impose the least severe sanction consistent with the
purposes of the discovery rules. See also State v. Drake, 6th Dist. Lucas No. L-15-1152,
2015-Ohio-5497, ¶ 5 (“A trial court must inquire into the circumstances surrounding a
discovery 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.”).
Courts routinely apply Papadelis. For instance, in State v. Davis, 5th Dist. Stark
Nos. CA-7129, CA-7106, 1987 Ohio App. LEXIS 9529, *6 (Nov. 9, 1987), the defendant
failed to respond to the state’s discovery requests until the morning of trial, at which time
he identified two witnesses. The trial court found that the state had insufficient time to
prepare for the witnesses and excluded them. Relying on Papadelis, the Fifth District
reversed. It held that the trial court was required to inquire into the circumstances
surrounding the discovery violation. And while the court recognized the state’s interest
in pretrial discovery, it found that the trial court should have explored less severe
sanctions such as granting a short continuance, if feasible, or even citing defense counsel
for contempt. See also State v. Fussell, 8th Dist. Cuyahoga No. 95875, 2011-Ohio-4950,
¶ 38-41 (vacating defendant’s conviction where trial court excluded witnesses disclosed
6. on day of trial without holding a hearing, considering Papadelis factors, or exploring less
severe sanction); State v. Moss, 4th Dist. Gallia No. 14CA2, 2015-Ohio-3651, ¶ 6-17.
{¶ 14} Here, the trial court conducted no inquiry into the reason for the delayed
disclosure of McDuffey’s witnesses, and it failed to consider less severe sanctions. See
State v. Owens, 6th Dist. Lucas No. L-11-1207, 2013-Ohio-325, ¶ 27 (explaining that “a
violation of Crim.R. 16(I) does not automatically require the exclusion of the witness,”
and observing that a court must remedy a discovery violation by imposing the least
severe sanction consistent with the purpose of the discovery rules). Because we conclude
that this was at odds with what was required of it under Papadelis, we find that the trial
court abused its discretion in excluding McDuffey’s witnesses.
{¶ 15} We, therefore, find McDuffey’s first assignment of error well-taken. Given
our resolution of McDuffey’s first assignment of error, we need not consider her second
assignment of error.
III. Conclusion
{¶ 16} We find that the trial court abused its discretion by failing to inquire into
the reason for McDuffey’s trial-day disclosure of witnesses, and it failed to consider
sanctions less severe than exclusion of her witnesses. We, therefore, find McDuffey’s
first assignment of error well-taken. In light of this decision, we need not consider her
second assignment of error.
7. {¶ 17} We reverse the June 22, 2017 judgment of the Toledo Municipal Court and
remand this matter to the trial court. The costs of this appeal are assessed to the city
under App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE James D. Jensen, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.