THE STATE OF NEW HAMPSHIRE

SUPREME COURT

 

In Case No. 97-588, The State of New Hampshire v. Bountham Sonthikoummane, the court upon April 3, 2001, made the following order:

Having considered the briefs, memoranda and oral arguments of the parties, the court concludes that a formal written opinion is not necessary for the disposition of the defendant’s motion for reconsideration and rehearing. The motion is granted in part and denied in part.

Upon reconsideration, the slip opinion issued on October 31, 2000, is amended as follows:

The text under Section III, titled "Excluding Witness Testimony," beginning with the words "The defendant next argues" and ending with the words "testifying on his behalf" is deleted. We insert the following in its place:

The defendant next argues that the trial court erred in preventing his wife from testifying. The defendant contends that the trial court improperly excluded her testimony as a sanction for a discovery violation, and that the offered testimony may not be totally excluded by the trial court unless "counsel's behavior reveals a willful omission during discovery, motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross examination and the ability to adduce rebuttal evidence." (Quotation omitted.) See State v. DeLong, 136 N.H. 707, 710, 621 A.2d 442, 443 (1993).

The defendant did not include his wife on his pre-trial list of witnesses as required by the discovery rules. See Super. Ct. R. 98(C). During the third day of trial, after his wife had been present in the courtroom for at least two days of trial, the defendant notified the State that his wife may be called as a witness. Following this notification, the defendant's wife was sequestered by agreement of the parties. She was once again present in the courtroom on the fourth day of trial, and the defendant represented to the court that she was not going to be a witness. Following most of the defendant's testimony on the fourth day of trial, the defendant again notified the court that his wife might be a witness.

The State objected to allowing any testimony by the defendant's wife. Initially, the court indicated it would allow the defendant's wife to testify with limitations to be "fair to the State," but, after further inquiry, the court excluded her testimony completely. In making its decision, the court first reviewed the series of events where the wife was present in the courtroom notwithstanding the court’s oral sequestration order. Further, the court queried defense counsel as to the basis for the decision not to call the defendant's wife after the initial decision to use her testimony. The record reflects the following:

THE COURT: And it was based on a discussion between you and [the defendant] that it was -- the election was made not to use her as a witness?

[THE DEFENSE]: Yes, Your Honor.

. . . .

[THE DEFENSE]: It was based on a discussion between he and I -- um -- that led me to believe that he would be competent to give the necessary testimony and that her testimony would not be necessary.

THE COURT: Okay. So the election was made with his consent and input?

[THE DEFENSE]: Yes, it was, Your Honor.

THE COURT: And clearly the two of you were aware, including him, that there was an issue about the money in the safe deposit box at the time that issue was made.

. . . .

And all the other issues you talked about actually . . . that were in this case.

[THE DEFENSE]: Yes, Your Honor.

THE COURT: So would it be fair to say that decision was made as trial strategy?

[THE DEFENSE]: Yes, Your Honor. . . .

THE COURT: Then, the State's objection is sustained.

Nowhere on the record does the court state that it decided to exclude the witness based on a violation of the discovery rules. The record does, however, reflect the court’s consideration of the defendant’s unfair advantage if he were allowed to call a witness who had been excluded from the witness list, and then permitted to listen to the testimony in open court simply because the defense vacillated on the decision whether to call that witness.

We have said that witness testimony offered by a defendant may be "excluded in the case of a willful omission during discovery, motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence." DeLong, 136 N.H. at 710, 621 A.2d at 443 (quotation omitted). Courts in other jurisdictions permit exclusion of testimony where there is no willful discovery violation, but, nevertheless, the trial court found potential for fabricated testimony, and the integrity of the adversary process and the interest of fair and efficient administration of justice militated against permitting such testimony. See United States v. Johnson, 970 F.2d 907, 910 (D.C. Cir. 1992). We agree these types of risks justify excluding a witness from testifying.

Considering the defendant’s failure to include the witness on his discovery list and the violation of the oral sequestration order, it is clear that concerns similar to those articulated in Johnson guided the trial court in its decision to exclude Mrs. Sonthikoummane’s testimony.

 

BROCK, C.J., and BRODERICK, NADEAU and DALIANIS, JJ., concurred.

 

Howard J. Zibel,

Clerk

Date of clerk’s notice of decision: April 6, 2001