STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL FERRICCI, Defendant-Appellant.
No. 110208
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 28, 2022
2022-Ohio-1393
KATHLEEN ANN KEOUGH, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607929-A
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 28, 2022
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey S. Schnatter and Janna R. Lifford, Assistant Prosecuting Attorneys, for appellee.
Friedman & Nemecek, L.L.C., and Eric C. Nemecek, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
{¶ 1} Defendant-appellant, Michael Ferricci, appeals his rape conviction. For the reasons that follow, we reverse and remand for a new trial.
{¶ 2} In 2016, Ferricci was named in a multicount indictment arising from allegations that he sexually assaulted a minor child at the daycare center where he worked.
{¶ 3} In November 2017, the matter proceeded to a jury trial on one count of rape in violation of
{¶ 4} In preparation for retrial, Ferricci requested discovery from the state pursuant to
{¶ 5} Interestingly, the defense had retained McPherson as an expert in preparation for Ferricci’s first trial, and pursuant to
{¶ 6} The February 24, 2020 trial date was continued due to the unavailability of a defense witness. The second trial commenced on March 2, 2020, on the sole count of rape.
II. The 2020 Retrial
{¶ 7} In 2016, then three-year-old C.W. attended preschool in Shaker Heights. June 27, 2016, was “Mud Day” at the school. When C.W. got home from school, his mother asked about his day ─ inquiring about “Mud Day” and if he got dirty. According to his mother, C.W. said that “Mr. Mike” had “stuck his” “pee pee” or “penis” in his mouth. C.W.’s father testified that his son had never said anything like that before. C.W.’s mother stated that she asked C.W. to show her what “Mr. Mike” had done and C.W. put his head down in his mother’s lap. C.W.’s mother said that C.W. told her that “Mr. Mike told him not to tell his mommy.” (Tr. 491.) C.W.’s
{¶ 8} During his interview with police, C.W. told the officers that he saw “Mr. Mike” “going tinkle.” Subsequently, C.W. was taken to the hospital. At the hospital, C.W. was seen by Angelita Olowu, a SANE nurse examiner. The nurse met with the family, evaluated C.W., and asked him questions about what had happened during school. According to Olowu, C.W. made no disclosures to her regarding the allegations.
{¶ 9} C.W., who was seven years old at the time of the second trial, testified that he remembered that “Mr. Mike” put his penis in C.W.’s mouth. He remembered telling his mother but did not remember talking to the police or a social worker about what happened. He also testified that what happened was “real,” not “make-believe.”
{¶ 10} Heather Pado, C.W.’s teacher, explained to the jury that June 27, 2016, was “Mud Day” — a day during which the children were allowed to play outside in the mud and get really dirty. Pado testified that C.W. and Ferricci were alone together in the bathroom for two minutes. When C.W. returned to the classroom, he acted “normal.”
{¶ 11} Over objection, forensic psychologist Dr. Sandra McPherson testified on behalf of the state. Dr. McPherson informed the court that she had reviewed the report she authored for the defense for the first trial but could not locate her file on
{¶ 12} Dr. McPherson testified that she is semi-retired but has been licensed to practice psychology in the state of Ohio since 1972 and has worked with both adults and children who have reported some form of sexual abuse. She testified that she is trained in the questioning of children. Dr. McPherson did not interview either C.W. or Ferricci, but reviewed the questioning of C.W. by various parties, including the police. According to Dr. McPherson, the police officer who interviewed C.W. “clearly had not had any of the necessary training, not for dealing with a very small child.” Dr. McPherson noticed several factors that made the police interview “less than ideal,” and testified that because the officer failed to follow accepted protocols when interviewing C.W., the “entire interview” with C.W. would not be considered “to meet any kind of reasonable expectations.” Dr. McPherson also opined that the initial disclosure that C.W. made to his mother would likely be the most accurate and reliable version of events, and the likelihood that C.W. would have said someone put “their penis in the child’s mouth is pretty low unless it actually happened.”
{¶ 13} Shaker Heights Police interviewed Ferricci for over three hours. The state submitted Ferricci’s police interrogation video as an exhibit at trial. The jury watched and listened to a redacted version of Ferricci’s interrogation with police. During his lengthy police interrogation, Ferricci repeatedly denied that he had done anything inappropriate to C.W. After two hours and forty-five minutes into the
{¶ 14} Dr. Richard A. Leo, a qualified and designated expert in the area of social sciences and confessions, testified on behalf of Ferricci. Dr. Leo testified regarding the science of coerced confessions. He opined that Ferricci’s interrogation was predicated on a “guilt presumptive” model and that the officers were accusatory and very aggressive throughout the interaction. Dr. Leo further noted that these tactics, when combined with the overall length of the interrogation, could have contributed to Ferricci providing a false confession.
{¶ 15} Ferricci testified in his own defense. During his trial testimony, Ferricci denied doing anything inappropriate to C.W. When asked about his admission to police detectives, he said:
I had told [the police] a few times that I didn’t do anything and I had told them the incidences that had happened. And they told me that — that it wasn’t good enough, that it didn’t make sense or that I was lying. There were a few times where they told me I was talking “B.S.” and so I felt — I felt like there was no way out unless I said what they wanted me to say.
{¶ 16} The jury convicted Ferricci of rape and the further finding that the victim at the time of the offense was under 10 years of age. The trial court classified Ferricci as a Tier III sex offender and sentenced him to life in prison with the possibility of parole after 15 years. The trial court granted Ferricci an appellate bond because of the continuing COVID-19 coronavirus pandemic.
III. The Appeal
{¶ 17} Ferricci now appeals, raising the following four assignments of error:
The trial court erred by permitting the state to call a defense expert witness during its case-in-chief. - Ferricci’s convictions are against the weight of the competent, credible, evidence introduced at trial and must be reversed in order to avoid a manifest miscarriage of justice.
- The trial court failed to properly instruct the jury as to each element of the charged offense.
- The trial court erroneously prevented defense counsel from eliciting testimony from Dr. Leo on the issue of false or coerced confessions.
{¶ 18} Following oral argument, this court sua sponte ordered the parties to brief the following issues as it relates to Ferricci’s first assignment of error: “Did the trial court err when it allowed into evidence testimony that the defendant retained Dr. Sandra McPherson? Was it error for the state to comment during closing arguments on which party retained Dr. Sandra McPherson?” We will address these additional issues within the first assignment of error, which is dispositive of this appeal.
A. Expert Testimony
{¶ 19} The defense retained Dr. McPherson as an expert in preparation for Ferricci’s first trial. Pursuant to
{¶ 21} During trial, the state attempted to call as a witness William Roser, a children and family services social worker, who interviewed C.W. following the accusation.2 The state maintained that based on comments made to the jury about C.W. making different and inconsistent statements, Roser’s testimony was important because he would testify about forensic interviewing techniques. Defense counsel objected, contending that he was not an expert in this field and that his testimony was duplicative and cumulative to the testimony already provided by C.W. and his mother. After reviewing Roser’s testimony from the 2017 trial, the court sustained the objection and Roser was not permitted to testify.
{¶ 22} The state then announced it was calling Dr. McPherson. Defense counsel objected, contending that Dr. McPherson was a defense-retained expert in the first trial. The trial court nevertheless permitted the testimony. The defense raised additional objections during the beginning of Dr. McPherson’s testimony that resulted in side-bar conversations conducted both on and off the record.
{¶ 23} During one side-bar conference, it was discovered that although Dr. McPherson had reviewed the report she authored for the defense for the first trial,
{¶ 24} The defense objected again after defense counsel perceived that the state’s questioning of Dr. McPherson was generating answers that vouched for C.W.’s credibility and truthfulness of the disclosure. During this sidebar conference, counsel challenged the trial court’s decision to allow Dr. McPherson to testify, contending that the state did not provide the defense with her expert report and that because Dr. McPherson was a defense-retained expert in Ferricci’s first trial, her report was protected under the attorney-client and/or work-product privileges.
{¶ 25} During this side-bar conversation, the state admitted that it did not submit an expert report, but maintained that the report would have been the same report that the defense provided the state during discovery for Ferricci’s first trial. Defense counsel noted, however, that the state’s questioning was beyond what the report provided. The state agreed but maintained that its questioning was in line with the testimony the state had elicited from Dr. McPherson in the first trial.
{¶ 26} When questioned about the state’s disclosure of Dr. McPherson as a witness, the prosecutor advised the trial court that when it learned from the defense a week prior to trial that it was undecided as to whether the defense would call Dr. McPherson as a witness, the state supplemented its witness list to include Dr. McPherson as a state’s witness. The state did not tell the trial court that the supplemental list was not filed until the morning of the February 2020 trial date.
{¶ 28} In his first assignment of error, Ferricci contends that the trial court erred in allowing Dr. McPherson to testify. Specifically, he contends that the attorney-client and/or work-product privileges should have precluded the state from calling Dr. McPherson as a witness and utilizing her report, which was not provided to the defense during the pretrial phase of the second trial.
{¶ 29} “Evidentiary rulings made at trial rest within the sound discretion of the trial court.” State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233 (8th Dist.), citing State v. Lundy, 41 Ohio App.3d 163, 535 N.E.2d 664 (1st Dist.1987). A trial court’s admission of expert testimony is also reviewed for an abuse of discretion. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 161. An abuse of discretion occurs when “a court exercise[es] it’s judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority.” Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304, ¶ 35.
1. Preservation of Error
{¶ 30} At the outset, the state contends that Ferricci has waived any claim regarding Dr. McPherson’s testimony because he did not properly preserve his claims for appeal. According to the state, the defense’s general objection at trial was
{¶ 31} Not only did the defense enter a general objection when the state announced its intention to call Dr. McPherson as an expert witness, the defense specifically noted that Dr. McPherson was its expert witness in the first trial. Additionally, during Dr. McPherson’s testimony, defense counsel objected several times to the state’s questions and, during one sidebar conference, defense counsel reiterated the defense’s objection to her testimony in general. See State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, ¶ 54, fn. 3 (general objection sufficient to preserve issue on appeal).
{¶ 32} In fact, after the state’s questioning started eliciting arguably inappropriate testimony regarding the truthfulness of C.W.’s disclosures, one of Ferricci’s defense attorneys raised the issue of attorney-client privilege and insisted that he had no knowledge the state was going to call Dr. McPherson as a witness. Defense counsel further objected to Dr. McPherson’s testimony because the state had not submitted any expert report in discovery as required under to
{¶ 33} While a violation of
2. Work-Product/Attorney-Client Privilege
{¶ 34}
{¶ 35} Additionally,
{¶ 36} Ferricci contends that the state was prohibited from calling Dr. McPherson as its expert at retrial because she was retained by the defense as Ferricci’s expert in the 2017 trial, and the defense chose not to utilize the doctor on retrial. The issue, therefore, is whether a defense expert in the first trial is an agent of the defense and thus protected by the attorney-client privilege or work-product
{¶ 37} In support of his argument, Ferricci cites State v. Fairchild, 2d Dist. Darke No. 1481, 1999 Ohio App. LEXIS 4012 (Aug. 27, 1999), and State v. Kopchak, 5th Dist. Muskingum No. CT2017-0036, 2018-Ohio-1136.
{¶ 38} In Fairchild, the defendant was convicted of burglary. Prior to trial, defense counsel retained an expert to examine fingerprint evidence. At trial, the state presented testimony from its own fingerprint expert, who opined that the fingerprints found at the scene of the crime matched those of the defendant. The state then called the defense’s expert witness to testify during its case-in-chief. Under direct examination, the defense expert agreed with the conclusions of the state’s fingerprint analyst.
{¶ 39} On appeal, the defendant argued that trial counsel was ineffective for not objecting to the state’s use of the defense’s expert witness during its case-in-chief, because the expert’s report and opinion were protected by the “work-product” privilege and should therefore not have been subject to disclosure or use by the state.
{¶ 40} The Second District concluded that the trial court erred by permitting the state to use a defense-retained expert. The court held that “the use of such testimony contravenes the work-product privilege enjoyed by the defendant.” Fairchild at 15. The court also referenced the “chilling effect” that a contrary determination would have on defense counsel’s ability to represent their clients, noting that defense attorneys would be deterred from seeking out such experts and
{¶ 41} In Kopchak, the defendant was indicted on two counts of rape. As part of its investigation, the Bureau of Criminal Investigation (“BCI“) conducted DNA analysis of bodily fluids found on an article of the defendant’s clothing and compared it with a standard submitted by the defendant, and the swabs from the victim’s rape kit. The defendant’s first attorney retained an expert in the field of forensic DNA analysis to perform independent testing of the results obtained by BCI. The expert did not perform any additional testing and reviewed the procedures and methods utilized by BCI. The expert then provided a letter to defense counsel opining that BCI’s procedures were conducted accurately and reliably.
{¶ 42} The defendant retained new counsel prior to trial. The new attorney filed a written response to the state’s discovery request, stating that the defense did not intend to call any expert witnesses at trial. The state was aware that prior counsel had retained a DNA expert and attempted to obtain a copy of any report or letter that was generated in connection with that expert. Following a hearing, the court ordered defense counsel to provide the state with a copy of the expert’s letter. During trial and over the objection of defense counsel, the state was permitted to call the defense’s expert witness to testify during its case-in-chief.
{¶ 43} The Fifth District determined that the trial court erred by requiring the defense to disclose its expert’s letter to the state and by permitting the state to
{¶ 44} The state seeks to distinguish Kopchak and Fairchild, arguing that the difference is that Dr. McPherson’s testimony and expert report had already been disclosed in the first trial and, therefore, the state was not seeking to use privileged information. According to the state, Ferricci waived any privilege he possessed by having Dr. McPherson testify at the first trial and by not properly objecting to her testimony at the second trial. Although the separate opinion seemingly is persuaded by the state’s position, this writer is not.
{¶ 45} It has already been determined that Ferricci properly preserved this matter for our review. Moreover, Ferricci’s first and second trials are two separate and distinct matters, demonstrated by the fact that the parties initiated new discovery requests and responses; thus the parties did not intend to rely on their initial discovery requests and responses, including witness lists.
{¶ 46} Dr. McPherson was not on the defense witness list for the second trial, nor had the defense disclosed or turned over her expert report to the state for use in the second trial. Any information the state gleaned from Dr. McPherson came from a separate proceeding ─ Ferricci’s first trial. The state has not provided this court any authority that would allow it to use a defense witness from a prior proceeding in its case-in-chief without following the rules of discovery.
{¶ 48} This conclusion is not altered by the fact that the defense had previously provided a copy of Dr. McPherson’s report to the state or called her to testify during Ferricci’s first trial. Rather, as the Supreme Court of New Jersey has recognized, while the defense may waive certain aspects of confidentiality by furnishing the state with a report from an expert they intend to call at trial, “the defense does not waive its right to control the testimonial use of the expert [who] remains unavailable to the State as a witness.” State v. Mingo, 77 N.J. 576, 586, 392 A.2d 590 (1978). The Mingo Court reasoned:
[T]he right to confidentiality we have recognized not only places limitations on prosecutorial discovery but also affords an evidentiary privilege. If the expert actually testifies for the defense concerning the substance of the reports [s/]he has rendered to defense counsel, the State remains able to effectively cross examine him [or her] with respect thereto by reason of the discovery it has been granted. However, should the defense elect not to present the expert as a witness after previously indicating to the contrary, the fact that his [or her] otherwise confidential reports have been disclosed to the prosecution does not entitle the State to call the expert as its witness over objection by the defense. The testimony of a defense consultant concerning the substance of expert services [s/]he has performed for the defense is exclusively available to the defense. If the defense trial strategy results in his not being called to testify, his [or her] potential testimony on that subject remains privileged from use by the State.
Id.
{¶ 49} Accordingly, this writer finds that the trial court abused its discretion in allowing Dr. McPherson to testify on behalf of the state during Ferricci’s retrial when the expert was retained by and testified on behalf of the defense during the first trial. Dr. McPherson became an agent of the defense pursuant to
{¶ 50} Moreover, even if this writer agreed with the separate opinion that this tactical maneuver by the state is permissible and not in violation of any attorney-client or work-product privilege, this writer would find that the state failed to follow the discovery rules of
Crim.R. 16(K)
{¶ 51} During a side bar conference, Dr. McPherson stated that she possessed a copy of her expert report but had lost her file. Defense counsel objected to Dr. McPherson’s testimony, arguing that the state had failed to turn over her expert report in discovery. The state responded that Dr. McPherson was a defense witness in the 2017 trial and thus, defense counsel would already have her report because it was the same report that defense counsel provided to the state in discovery for the 2017 trial. The trial court overruled the objection.
{¶ 52}
An expert witness for either side shall prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert‘s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.
{¶ 53} The purpose of
{¶ 54} In Boaston, the Ohio Supreme Court noted that “[e]ffective July 1, 2010,
{¶ 55} The state conceded at trial that it did not comply with
{¶ 56} First, under the plain language of
{¶ 57} In a footnote, the separate opinion finds that the state’s noncompliance with
{¶ 58} Moreover, because this was a new trial and Dr. McPherson was now testifying as a state’s witness, a new report could have been weighted differently to now coincide with her testimony in the second trial — causing the defense to seek a rebuttal expert. In fact, when the defense objected to Dr. McPherson’s testimony because the state had not furnished an expert report, counsel stated:
But that expert report you are referencing that we provided from the last trial does not include the information upon which you are inquiring and it is completely opposite to what you are inquiring.
{¶ 59} In Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, the Supreme Court held that trial court erred in admitting expert opinion testimony on topics that were not set forth in a written report prepared in compliance with
{¶ 60} Accordingly, what occurred here at trial is exactly what the purpose behind the 2010 revisions to
[t]he plain language of
Crim.R. 16(K) expressly provides the consequence for failing to disclose an expert‘s report as required: “Failure to disclose the written report to opposing counsel shall preclude the expert‘s testimony at trial.”Crim.R. 16(L)(1) implicitly acknowledges this remedy: “The trial court may make orders regulating discovery not inconsistent with this rule.” And whileCrim.R. 16(K) confers some measure of discretion on trial judges, it is limited to modifying the 21-day requirement “for good cause shown, which does not prejudice any other party.”
{¶ 62} In this case, the state did not seek to extend the timeframe under
{¶ 64} The parties do not dispute that Dr. McPherson is an expert in the field of forensic psychology and is trained in the field of interviewing techniques with individuals in sex abuse cases. Although she had already been qualified as an expert
{¶ 65}
{¶ 66} The purpose of expert testimony is to assist the trier of fact in determining a fact, issue, or understanding the evidence. In re Leska, 8th Dist. Cuyahoga No. 63417, 1993 Ohio App. LEXIS 1314 (Mar. 4, 1993).
{¶ 67} The state did not request that Dr. McPherson be qualified as an expert witness, and the court never classified her in that manner. During one of defense counsel‘s objections, defense counsel noted as much, stating: “He [the prosecutor] is using her as an expert. He hasn‘t established her [sic] that she‘s an expert. He‘s asking her [sic] for her to offer opinions.” (Tr. 600.) The prosecutor did not dispute
{¶ 68} Clearly, Dr. McPherson was not testifying as a lay witness because she had no firsthand knowledge of the subject of her testimony. She never interviewed C.W., and therefore, her opinion could not have been one “that a rational person would form based on the observed facts” under
{¶ 69} Rather, Dr. McPherson testified based on her review of the interviews conducted by others with C.W. For example, she opined that the police officer who interviewed C.W. had not received training in interviewing children in sex abuse cases and that the officer‘s interview of C.W. was not a quality forensic interview. She told the jury that based on her knowledge of disclosures of sexual abuse, it is important for an interviewer to ask questions of a child in the correct way and that time and memory may have an effect on a child‘s disclosure of sexual abuse. Additionally, Dr. McPherson testified regarding a three-year-old‘s understanding of sexual activity.
{¶ 70} Accordingly, the state sought to present Dr. McPherson as an expert yet failed to tender her as an expert to the jury. Without qualifying Dr. McPherson as an expert, it was improper for the state to ask the jury to draw certain inferences based on her testimony. This failure is compounded by the state‘s reliance on Dr. McPherson‘s testimony to persuade the jury that C.W.‘s disclosure to his parents was, in fact, the most reliable. Accordingly, based on the forgoing, even if the state was permitted to call a defense-retained expert, the state violated
4. Prejudicial Error
{¶ 71} Having found that the trial court erred in allowing Dr. McPherson‘s testimony, we must determine whether that error is harmless.
{¶ 72} In State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, the Ohio Supreme Court reiterated the three-part analysis established previously in Morris to guide appellate courts in determining whether the erroneous admission of evidence affected the defendant‘s substantial rights so as to require a new trial or whether the admission of that evidence was harmless error under
First, it must be determined whether the defendant was prejudiced by the error, i.e., whether the error had an impact on the verdict. * * * Second, it must be determined whether the error was not harmless beyond a reasonable doubt. * * * Lastly, once the prejudicial evidence is excised, the remaining evidence is weighed to determine whether it establishes the defendant‘s guilt beyond a reasonable doubt.
Harris at ¶ 37, citing Morris at ¶ 27-29.
{¶ 73} In addition, the conduct of the prosecutor “may combine with an evidentiary error to cause greater impact.” Morris at ¶ 31 (finding state‘s use of gruesome slides during the penalty phase appealed to the jury‘s emotions and prejudiced the defendant). “[B]latent prejudice may override even a strong case and require a new trial.” Id. at ¶ 32.
{¶ 74} Although the separate opinion does not find an error in permitting Dr. McPherson to testify in general, the panel agrees that blatant prejudice occurred in this case because the state elicited testimony from Dr. McPherson that she was retained by the defense and then repeatedly used this information during its closing argument as an attempt to bolster her testimony. These statements are not harmless beyond a reasonable doubt when the case hinges on a credibility contest amongst witnesses.
{¶ 75} During direct examination, the state asked Dr. McPherson how she became involved in this case. Dr. McPherson replied, “I was retained by the defense.” (Tr. 584.) During closing arguments, the state again highlighted that the defense had retained Dr. McPherson:
Well, you also learned from a child psychologist, Dr. Sandra McPherson, who, you know, came out and testified — she was actually retained by the defense, so she‘s, you know, not here — well, she‘s here
to educate you. And I called her as a witness, even though she was retained by the defense, because I felt her information was extremely important for you to consider as you deliberate this case.
{¶ 76} The fact that Dr. McPherson was first retained by the defense has no relevance to any issue before the jury. Additionally, identifying Dr. McPherson as a defense-retained witness serves only to invite the jury to give undue weight to her opinion. Indeed, that characterization forces the defendant to involuntarily “vouch for” the credibility of an expert that they have decided not to call as a witness. See United States v. Walker, 910 F. Supp. 861, 864 (N.D.N.Y. 1995).
{¶ 77} That is precisely what happened here. In an attempt to triage this disclosure, defense counsel was compelled to acknowledge that Dr. McPherson was retained by the defense and then attempted to explain to the jury why it did so but did not call the doctor as a witness. (Tr. 614; 959.) The state forced the defense into a position that risked unfairly neutralizing the effect of any otherwise proper impeachment of the witness that the defense might undertake.
{¶ 78} As noted in Walker at id.:
[I]n criminal proceedings much may turn on the jury‘s assessment of the candor and credibility of a defendant‘s attorneys. The jury makes that assessment unfamiliar with the adversary process, a defense attorney‘s duties in fully exploring the government‘s case against his [or her] client, and the role an attorney plays in developing and presenting expert testimony. To permit the government to stress that the defense was in possession of an expert‘s negative conclusions but declined to place those conclusions before the jury raises a real danger of the jury concluding that the defense had improperly attempted to suppress adverse facts or opinions.
{¶ 79} The import of Dr. McPherson‘s testimony cannot be overstated. The alleged victim was three years old when the incident occurred and seven years old
{¶ 80} Dr. McPherson‘s testimony served to bolster the child‘s testimony and explain why his initial disclosure to his mother might differ and should be given more weight or believed over that of the child‘s subsequent disclosures. To illustrate this point, the state questioned Dr. McPherson about false disclosure and her previous testimony regarding the percentage of children who falsely disclose abuse.
{¶ 81} The state queried:
State: Have you testified to lower numbers than 10 percent in the neutral setting, closer to 2 or 3 percent and 6 percent in the contested settings? In this case itself, I believe you testified in that range.
Dr. McPherson: Well, my memory and my reading of the current research that‘s been done is that the more common figure is closer to 2 percent than not, but there have been some studies upwards, up as high up as 10 percent. But the figures that are associated with the more difficult cases that can occur in a setting where someone is trying to get a child to say something and has succeeded in doing so can be * * * higher. * * *
State: And that‘s all affected by the context of the disclosure?
Dr. McPherson: Right. Context is an extremely important variable.
State: How would you classify the context in this disclosure where the mom just asked her kid how was Mud Day?
Dr. McPherson: Yeah. In making the assumption that that‘s what mom did, and I believe it was something similar to that, it‘s the usual thing * * * That the likelihood of the child saying something like someone put
(Tr. 598.)
{¶ 82} Dr. McPherson further testified that unless a three-year-old child had had an unusual experience, “they would not understand that placing a penis in the mouth of another person is an act that is known to be part of sexual repertoire of adults. They would not know that.” (Tr. 605.)
{¶ 83} In State v. Walls, 2018-Ohio-329, 104 N.E.3d 280 (6th Dist.), the Sixth District found reversible error when the trial court allowed an expert in child sex abuse to testify beyond the scope of his written report. The state provided the expert report to the defense prior to trial but failed to disclose that the expert witness intended to testify about matters outside of the report, including sexual grooming, delayed disclosure, or recantation; did not identify the studies upon which expert relied in forming his opinions; and did not disclose his opinion that one of the victims was a “troubled young lady with some serious psychological issues” who likely had been sexually abused in the past. Id. at ¶ 38. The court performed a harmless-error inquiry and found that the appellant‘s substantial rights had been violated. The court noted that the state intended for the expert‘s testimony to carry great weight with the jury, that there was no physical evidence in the case, and that the state emphasized the improper evidence by repeatedly referencing the expert‘s testimony in its closing argument. Id. at ¶ 45–51.
{¶ 85} Likewise, in this case, the state intended for Dr. McPherson‘s testimony to carry great weight with the jury and wanted the jury to rely on her expert opinion when analyzing C.W.‘s credibility and testimony at trial. Dr. McPherson testified that she had been licensed since 1976 and was trained in the forensic interviewing of child sex assault victims. She was the only expert — in fact, the only witness — to do so. Dr. McPherson opined that a child of C.W.‘s age would not understand that the act of placing a penis in the mouth of another person is part of adult sexual repertoire unless the child had had an unusual experience. Furthermore, Dr. McPherson asserted that the likelihood that C.W. would have said “something like ‘someone put their penis in the child‘s mouth’ is pretty low unless it actually happened.”
{¶ 86} The state repeatedly referenced Dr. McPherson‘s testimony in closing argument:
And what did [Dr. McPherson] tell you? She talked about how a three-year-old, a three-year-nine-month-old child, it is not in their development. It isn‘t in their knowledge set to have the concept of sexual activity or penises in the mouth unless it is introduced there by some outside source, right? And what is the outside source in this case? It is the fact that Michael Ferricci put his penis in [C.W.‘s] mouth.
So she also talked about disclosures of sexual abuse by children, how there are different ways that disclosures occur in different settings. And she talked about how important it is to question children appropriately; how you can‘t implant ideas into a child‘s mind because a child could just start parroting back things you‘re saying.
And I agree 1,000 percent with Dr. McPherson. She‘s right, it‘s important because we want to have accurate information. We want to have information we can rely on in the most important of our affairs when we make these decisions.
(Tr. 946-947.)
{¶ 87} The state referenced Dr. McPherson‘s opinion that C.W.‘s initial
I asked you to critically analyze every bit of information you heard in this case. Critically analyze it and assess it and understand it based on what you were educated by, frankly, [Dr.] McPherson.
[C.W.] has no conception at three years nine months, of a penis in his mouth. Not [the prosecutor‘s] words; Dr. McPherson‘s words.
(Tr. 970-971.)
{¶ 88} Additionally, there was no physical evidence in this case that Ferricci committed rape. The state‘s case largely hinged on whether the jury believed the state‘s witnesses over the defense witnesses. Dr. McPherson‘s testimony, the state‘s actions in emphasizing her testimony, and the state‘s inappropriate comments that the defense retained Dr. McPherson, all lead this court to conclude that there is “a reasonable possibility that the testimony contributed” to Ferricci‘s conviction. See Morris, 141 Ohio St. 3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, at ¶ 28.
{¶ 89} Based on the facts and circumstances of this case, the error was not harmless. A finding of harmless error is not justified if the case is a “credibility
{¶ 90} If the state is permitted to call defense-retained experts to testify against the defendant, defense attorneys would be deterred from seeking out such experts and developing work product on behalf of their clients. Moreover, in no event should the court allow the state to identify the witness as one that was previously retained by the defendant, as occurred in this case. Accordingly,
{¶ 91} Judgment reversed; case remanded for a new trial.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION);
EILEEN T. GALLAGHER, J., CONCURS WITH THE SEPARATE CONCURRING IN JUDGMENT ONLY OPINION
MICHELLE J. SHEEHAN, J., CONCURRING IN JUDGMENT ONLY:
{¶ 92} I respectfully concur in judgment only. While I agree with the outcome reached by the lead opinion, I disagree with the lead opinion‘s holding that the work-product privilege (or the related attorney-client privilege) prohibited the state from calling Dr. McPherson to testify in the new trial because she was retained by the defense as its expert in the first trial. In my view, the defense waived the work-product privilege when it called Dr. McPherson to testify in the first trial but
Work-Product Doctrine
{¶ 93} The work-product doctrine “protects the attorney‘s mental processes in preparation of litigation, so that the attorney can analyze and prepare their client‘s case free from scrutiny or interference by an adversary.” Watson v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 99932, 2014-Ohio-1617, ¶ 29, citing Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 55. The doctrine initially arose in the civil context but has long been extended to the criminal context. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).
{¶ 94}
The following items are not subject to disclosure under this rule:
Materials subject to the work product protection. Work product includes, but is not limited to, reports, memoranda, or other internal documents made by the prosecuting attorney or defense counsel, or their agents in connection with the investigation or prosecution or defense of the case[.]
Moreover, “the work product doctrine protects material prepared by agents for the attorney as well as those prepared by the attorney * * *.” State v. Fairchild, 2d Dist. Darke No. 1481, 1999 Ohio App. LEXIS 4012 (Aug. 27, 1999). In the context of
Issue of First Impression
{¶ 95} The highly unusual circumstances of this case appear to present a novel issue of first impression: whether an expert retained by defense counsel who testified for the defense in a trial should be precluded by the work-product doctrine (or the related attorney-client privilege) from testifying for the state in a new trial when the expert is no longer retained by the defense.4
{¶ 96} On its face,
{¶ 97} However, some courts have extended the work-product protection incorporated in
Waiver of Work-Product Privilege
{¶ 98} In the instant case, however, the defense itself had called Dr. McPherson to testify on its behalf, but chose not to call the expert in the new trial. By voluntarily calling Dr. McPherson in the first trial, the defense published the expert‘s opinions and waived any work-product protection. See, e.g., DMS Constr. Ents., L.L.C. v. Homick, 8th Dist. Cuyahoga No. 109343, 2020-Ohio-4919, ¶ 30 (“work product protection belongs to the attorney and an attorney‘s actions can waive work product protection, including by voluntary disclosure of information to an adverse party“). The expert testifying for the defense distinguishes the instant case from Kopchak and Fairchild, where the expert was not called by the defense to testify and there was no waiver of the work-product protection. I would also note
{¶ 99} I recognize that courts have remarked on the chilling effect of allowing the state to call a defense-retained expert: “if the State were permitted to call defense retained experts to testify against the defendant, defense attorneys would be deterred from seeking out such experts and developing work product on behalf of their clients.” Kopchak at ¶ 22, quoting Fairchild at 6. See also Freshour, 4th Dist. Pickaway No. 83 CA 32, 1986 Ohio App. LEXIS 6092 (Grey, J., dissenting) (“[a]llowing the defendant‘s expert witness to be used by the prosecution has an undeniably chilling effect of the right to competent counsel. Counsel‘s ability to independently investigate the case is hampered by the threat that what he finds will be used against his own client“). The chilling effect noted by these courts, however, is minimal under the circumstances of this case, where the defense itself had called the expert to present her report and opinions in the prior trial.6
Prejudice
{¶ 100} While I believe neither
{¶ 101} During its case in chief, the state elicited from Dr. McPherson information that she was originally retained by the defense counsel.7 This information was arguably irrelevant to whether appellant was guilty of the offense charged and therefore inadmissible pursuant to
{¶ 102} The harmful effect of the prejudicial testimony was exacerbated by the state‘s repeated allusions to it during the state‘s closing argument; the state told the jury to place significance on the fact that the expert was originally retained by the defense counsel and it implored the jury to afford more credibility to her testimony regarding the child‘s initial disclosure based on that fact.
{¶ 103} Therefore, while the defense waived the work-product privilege and the state is not precluded from calling Dr. McPherson to testify at the new trial, the state‘s improper elicitation of the fact that she was retained by the defense and exploitation of that fact at its closing argument resulted in substantial prejudice to appellant under the circumstances of this case, where there was no corroborating physical evidence or eyewitnesses and the question of appellant‘s guilt hinged entirely on the credibility of the child‘s initial disclosure. For all the foregoing reasons, I concur in judgment only.
Notes
Defense: Dr. Leo, are you regarded as a leader if not the leading researcher in your field?
Dr. Leo: I think I‘m just the oldest.
Defense: Your Honor, at this time, I‘d like to offer Dr. Leo as an expert witness in the general sciences of social psychology and criminology and the specific study and practice of police interrogations, psychological coercion, and the making of false statements, admissions, and confessions.
State: I have no objection to him being found as an expert in his field of study, Your Honor.
Court: Thank you. He will be designated an expert in that area of social sciences and confessions.