435 P.3d 694
Okla. Crim. App.2019Background
- Lubuto Musonda was convicted by a jury in Tulsa County of child abuse by injury, second-degree robbery (lesser-included), assault and battery on a police officer, misdemeanor assault and battery, and cruelty to animals; sentences were imposed consecutively and affirmed by the trial court.
- At trial the State used a consulting expert, Dr. Shawn Roberson, who reviewed materials but did not examine Musonda, prepare a report, or testify as a fact witness.
- Musonda sought discovery of any findings/statements from the State’s consultation with Dr. Roberson and requested in camera review; the trial court denied disclosure, treating the materials as attorney work product and exempt from discovery.
- Musonda appealed asserting two propositions: (I) the trial court erred by not requiring disclosure of the private expert’s findings; and (II) the court should have conducted an in camera review to determine whether any material was exculpatory.
- The Court of Criminal Appeals found Musonda waived preservation of the discovery objection by failing to properly object in the trial record (triggering plain error review) and concluded no Brady violation or other discoverable material existed; it affirmed the judgments and sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State must disclose findings/statements from its consulting expert (Dr. Roberson) | Musonda: trial court misread §2002(A)(1)(d) and improperly allowed work-product exemption to shield exculpatory material | State: consultations with a retained consulting expert that produced no report or direct examination are attorney work product and not discoverable; prosecutor attested no exculpatory material existed | Court: No error. Consulting expert’s unsworn, non-memorialized input was protected as work product; no Brady violation shown. |
| Whether the court should have conducted an in camera review of State’s notes/communications to check for exculpatory material | Musonda: at minimum trial court should have reviewed any notes in camera to see if exculpatory material existed | State: prosecutor represented there was nothing exculpatory; absent a showing, speculation insufficient to require in camera review | Court: No plain error. Prosecutor’s assurances and lack of record indication of Brady material preclude reversal; Musonda’s speculation insufficient. |
Key Cases Cited
- Bramlett v. State, 422 P.3d 788 (Okla. Crim. App. 2018) (plain-error standard where discovery objection not preserved)
- Brown v. State, 933 P.2d 316 (Okla. Crim. App. 1997) (presumption that prosecutor discloses exculpatory evidence and refusal to search record for unpreserved claims)
- Ellison v. Gray, 702 P.2d 360 (Okla. 1985) (opinion work product protects counsel’s analysis and trial preparation)
- Logsdon v. State, 231 P.3d 1156 (Okla. Crim. App. 2010) (requirements for appellant to cite record and preserve claims)
- Stouffer v. State, 147 P.3d 245 (Okla. Crim. App. 2006) (waiver for failure to cite the record)
- Nauni v. State, 670 P.2d 126 (Okla. Crim. App. 1983) (work-product privilege cannot abridge Brady disclosure obligations)
- Fairchild v. State, 998 P.2d 611 (Okla. Crim. App. 1999) (mere speculation without a showing of harm insufficient for relief)