State v. Ferricci
2022 Ohio 1393
Ohio Ct. App.2022Background:
- Defendant Michael Ferricci, a daycare employee, was accused that in 2016 he put his penis in a 3-year-old child’s mouth; first trial (2017) resulted in acquittal on kidnapping and a hung jury on rape; retrial held in 2020.
- For the 2017 trial the defense retained Dr. Sandra McPherson (forensic psychologist) and produced her Crim.R.16(K) report to the state; the defense did not list or intend to use her at the 2020 retrial and did not re-disclose a report.
- The state supplemented its witness list the morning of trial and called Dr. McPherson as a state witness without timely producing a written expert report under Crim.R.16(K); Dr. McPherson testified and said she had been retained by the defense in the earlier proceeding.
- The state used McPherson’s testimony to bolster the child’s disclosure and repeatedly referenced that the expert had been retained by the defense in closing argument; defendant was convicted of rape and sentenced to life with possibility of parole after 15 years.
- On appeal the court reversed and remanded for a new trial, holding the admission of McPherson’s testimony and the state’s emphasis that she had been defense-retained materially prejudiced defendant (dispositive first assignment); a concurring opinion agreed the comments were prejudicial but would not have barred McPherson entirely on waiver grounds.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Ferricci) | Held |
|---|---|---|---|
| Whether the trial court erred by permitting the state to call Dr. McPherson (a defense-retained expert in prior trial) as a state witness | State: prior disclosure in 2017 waived any privilege; the defense had the report already, so no unfair surprise | Defense: calling a prior defense expert as state witness violates work-product/attorney-client protections and discovery rules | Held: Abuse of discretion — expert testimony should have been precluded (work-product protection and discovery violation); testimony excluded on retrial basis; conviction reversed |
| Whether the work-product or attorney-client privilege barred the state from using the defense’s prior expert | State: any privilege was waived by prior disclosure/ prior testimony; no protection in new trial | Defense: expert became an agent of the defense; her opinions and report were protected once the defense chose not to call her at retrial | Held: Majority — expert was an agent of defense and protected by work-product when not listed for retrial; concurrence disagreed (waiver by prior testimony) but agreed prejudice from state’s use |
| Whether the state’s failure to comply with Crim.R.16(K) (no timely expert report) required exclusion of McPherson’s testimony | State: defense already possessed the earlier report; no prejudice; report content was not new | Defense: Crim.R.16(K) requires a written report and 21-day disclosure; failure mandates exclusion | Held: Crim.R.16(K) violated; exclusion required where report not timely disclosed and expert offered new/unspecified opinions; violation prejudicial here |
| Whether the error was harmless or prejudicial | State: any error was harmless given other evidence and trial record | Defense: expert testimony and prosecutor’s repeated emphasis that she was defense-retained unduly bolstered victim’s credibility in a credibility contest, causing prejudice | Held: Not harmless — error prejudiced substantial rights; prosecutor’s use of the expert/retained-by-defense comment likely affected verdict; new trial ordered |
Key Cases Cited
- State v. Boaston, 160 Ohio St.3d 46 (Ohio 2020) (Crim.R.16(K) excludes expert testimony beyond the written report; failure to disclose report requires exclusion)
- State v. Harris, 142 Ohio St.3d 211 (Ohio 2015) (three-part harmless-error framework for erroneous admission of evidence)
- State v. Morris, 141 Ohio St.3d 399 (Ohio 2014) (test for whether erroneous admission affected substantial rights; latent prejudice may require new trial)
- State v. Perry, 101 Ohio St.3d 118 (Ohio 2004) (state bears burden to show an error did not affect substantial rights)
- State v. Richey, 64 Ohio St.3d 353 (Ohio 1992) (a prosecutor’s use of a defense expert may implicate attorney-client privilege)
- State v. McKelton, 148 Ohio St.3d 261 (Ohio 2016) (admission of expert testimony reviewed for abuse of discretion)
- State v. Walls, 104 N.E.3d 280 (6th Dist. 2018) (reversible error where expert testified beyond written report and prosecution emphasized expert testimony)
- State v. Mingo, 77 N.J. 576 (N.J. 1978) (392 A.2d 590) (defense does not waive the right to control testimonial use of an expert merely by furnishing the prosecution a report in a prior proceeding)