[Cite as State v. Ferricci,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110208 v. :

MICHAEL FERRICCI, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: April 28, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607929-A

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.:

Defendant-appellant, Michael Ferricci, appeals his rape conviction. For

the reasons that follow, we reverse and remand for a new trial. I. Procedural Background

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.

In November 2017, the matter proceeded to a jury trial on one count of

rape in violation of R.C. 2907.02(A)(1)(b) (sexual conduct with a child under the age

of 13), and one count of kidnapping in violation of R.C. 2905.01(A)(4) (removal or

restraint of a child under 13 for the purpose of engaging in sexual activity) with a

sexual motivation specification under R.C. 2941.147(A).1 The jury acquitted Ferricci

of kidnapping, but could not reach a verdict on the rape offense. The trial court

declared a hung jury and scheduled a new trial on the rape offense for February

2018, which was later continued until May 2018. Trial was continued again until

February 24, 2020, following Ferricci’s unsuccessful appeal of the trial court’s denial

of his motion to dismiss based on double-jeopardy grounds. See State v. Ferricci,

8th Dist. Cuyahoga No. 107279,

.

In preparation for retrial, Ferricci requested discovery from the state

pursuant to Crim.R. 16 and the state requested reciprocal discovery. The parties

supplemented discovery, including their respective witness lists, throughout the

pretrial proceedings. On February 24, 2020, the day of trial, the state filed a

1 Prior to trial, the state dismissed the counts charging Ferricci with sexual battery, unlawful sexual conduct with a minor, and public indecency. supplemental response to discovery identifying Dr. Sandra McPherson, an expert in

forensic psychology, as a state’s witness. The state concedes that it did not provide

defense counsel with Dr. McPherson’s expert report as required under

Crim.R. 16(K).

Interestingly, the defense had retained McPherson as an expert in

preparation for Ferricci’s first trial, and pursuant to Crim.R. 16(K), the defense

provided the state with Dr. McPherson’s expert report for the first trial. Ultimately

Dr. McPherson testified as Ferricci’s expert at the 2017 trial. For retrial, however,

the defense did not identify Dr. McPherson as a potential witness, nor did it provide

the state with Dr. McPherson’s expert report in its discovery responses.

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

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 mother and father contacted a relative who worked in law enforcement and then

called the Shaker Heights Police Department.

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.

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.”

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.”

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 the case. The trial court allowed Dr. McPherson to use her testimony from her first

trial to refresh her recollection.

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.”

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 interrogation, Ferricci changed his story several times and stated that he placed his

penis on C.W.’s mouth while they were in the preschool bathroom.

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.

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.

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

Ferricci now appeals, raising the following four assignments of error: I. The trial court erred by permitting the state to call a defense expert witness during its case-in-chief.

II. 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.

III. The trial court failed to properly instruct the jury as to each element of the charged offense.

IV. The trial court erroneously prevented defense counsel from eliciting testimony from Dr. Leo on the issue of false or coerced confessions.

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

The defense retained Dr. McPherson as an expert in preparation for

Ferricci’s first trial. Pursuant to Crim.R. 16(K), the defense disclosed Dr. McPherson

as its expert and provided the state with her expert report. McPherson also testified

as Ferricci’s expert at the 2017 trial. For retrial, however, the defense chose not to

use Dr. McPherson as its expert. Accordingly, in its discovery responses in

preparation for retrial, the defense did not list Dr. McPherson as a witness, expert

or otherwise, and did not provide the state with her report. Trial was scheduled to begin on February 24, 2020. The record

reflects that the state filed a supplemental witness list the morning of trial, indicating

that Dr. McPherson would be called as an expert witness on behalf of the state. Trial

was continued for one week at the defendant’s request due to witness unavailability.

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.

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.

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,

2 Roser testified during the 2017 trial. she could not locate her file on the case. When the state could not refresh Dr.

McPherson’s recollection with her report, the trial court allowed Dr. McPherson to

refer to her testimony from the first trial to refresh her recollection.

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.

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.

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. The court permitted Dr. McPherson to continue testifying but

cautioned the state that any testimony regarding the validity or falsity of disclosures

would not be tolerated.

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.

“Evidentiary rulings made at trial rest within the sound discretion of

the trial court.” State v. Roseberry,

,

,

(8th Dist.), citing State v. Lundy,

,

(1st Dist. 1987). A trial court’s admission of expert testimony is also reviewed for an

abuse of discretion. State v. McKelton,

,

,

. 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.

.

1. Preservation of Error

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 insufficient to preserve the specific issues raised by the defense on appeal. We

disagree.

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,

,

,

(general objection

sufficient to preserve issue on appeal).

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 Crim.R. 16(K).

While a violation of Crim.R. 16(K) may be waived — for instance when

an appellant objected only to the admission of the expert’s report but not to the

expert’s testimony, see State v. Williams, 6th Dist. Lucas No. L-14-1067, 2015-Ohio-

1686, ¶ 17-21 — here, defense counsel did not waive this issue. Our review of the

record reveals that defense counsel made no less than three objections regarding the

state using Dr. McPherson as a state witness and further made several specific objections to her testimony. Accordingly, we find that Ferricci has not waived his

claims on appeal.

2. Work-Product/Attorney-Client Privilege

Crim.R. 16 governs criminal discovery and inspection. Crim.R. 16(H)

addresses a defendant’s obligation to provide the prosecution with reciprocal

discovery. Relevant to the appeal, the defense is obligated to provide to the state “all

investigative reports,” except those “subject to work-product protection,” including

but not limited to “reports, memoranda, or other internal documents made by * * *

defense counsel, or their agents in connection with the investigation * * * or defense

of the case.” Crim.R. 16(H) and (J).

Additionally, Crim.R. 16(K) provides that an expert witness for either

the state or the defense “shall prepare a written report summarizing the expert’s

testimony, findings, analysis, conclusions, or opinion, and shall include a summary

of the expert’s qualifications.” However, this subsection of the rule does not require

disclosure of “written reports of consulting experts who are not being called as

witnesses.” See Crim.R. 16(K), 2010 Staff Note.

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 privilege in a subsequent retrial when the defense chooses not to call that expert to

testify.

In support of his argument, Ferricci cites State v. Fairchild, 2d Dist.

Darke No. 1481,

(Aug. 27, 1999), and State v. Kopchak,

5th Dist. Muskingum No. CT2017-0036,

.

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.

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.

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 developing work product on behalf of their clients if said experts could be used by

the state during its case-in-chief.

In Kopchak, 5th Dist. Muskingum No. CT2017-0036, 2018-Ohio-

1136, 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.

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.

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 call the expert as a witness during its case-in-chief. The court noted that Crim.R. 16

explicitly recognizes that certain classes of materials — including those covered by

the attorney-client and work-product privileges — must be excluded from discovery.

Id. at ¶ 23.

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.

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.

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. It is undisputed that the defense did not intend to call Dr. McPherson

as a witness during its case-in-chief in the second trial. Thus, as in Kopchak and

Fairchild, Dr. McPherson was an agent of the defense who consulted on issues

relating to the interviews of C.W. As such, the state was precluded from calling Dr.

McPherson as a witness and utilizing her expert report at trial. Compare Civ.R.

26(B) (consulting expert’s work product is part of the work product of the attorney

who retained the expert) and Nunley v. Nationwide Children’s Hosp., 10th Dist.

Franklin No. 13AP-425,

(addressing the intent of the

consulting expert privilege is “to prevent unfairness that could result from allowing

an opposing party to reap the benefits of another party’s efforts and expense”); see

also State v. Richey,

,

(1992) (no plain error

found, but the court noted that “the prosecutor’s use of a defense expert may violate

an accused’s attorney-client privilege”).

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,

,

(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.

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 Crim.R. 16(J)

once the defense decided not to call her as a witness at retrial. Accordingly, her

report was subject to the protections of the work-product privilege under the

criminal rules.

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) and, therefore, the court should have

precluded Dr. McPherson’s testimony at trial. 3. Crim.R. 16(K)

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.

Crim.R. 16(K) requires that experts generate written reports and that

those reports be disclosed to the opposing party 21 days prior to trial. Crim.R. 16(K)

provides:

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.

The purpose of Crim.R.16(K) is to prevent “either party from avoiding

pretrial disclosure of the substance of expert witness’s testimony by not requesting

a written report from the expert, or not seeking introduction of a report.” Crim.R.

16(K), 2010 Staff Notes.

In Boaston,

,

,

, the

Ohio Supreme Court noted that “[e]ffective July 1, 2010, Crim.R. 16 underwent comprehensive changes in large part to strengthen the protections of a defendant’s

constitutional due-process rights to a fair trial.” Id. at ¶ 44, citing Grove, Criminal

Discovery in Ohio: “Civilizing” Criminal Rule 16, 36 U.Dayton L.Rev. 143, 144-145

(2011). The changes to Crim.R. 16 promote “more open discovery,” leveling the

playing field by strengthening the defendant’s right to know the evidence the state

will present against him or her at trial. Id.

The state conceded at trial that it did not comply with Crim.R. 16(K)

because it did not ask Dr. McPherson to prepare an expert report and did not furnish

an expert report to the defense. Additionally, the record is undisputed that the state

did not comply with the 21-day deadline as required by Crim.R. 16(K). The state

contends that defense counsel was already in possession of the expert report because

of the 2017 trial and Dr. McPherson did not prepare a new report for retrial. Thus,

according to the state, Ferricci was not surprised by Dr. McPherson’s report or

testimony because the report had already been disclosed and it was permissible for

the state to use her expert report. Although the separate opinion might agree with

the state, this writer cannot.

First, under the plain language of Crim.R. 16(K), the state — just like

the defense — is mandated to provide and disclose all expert reports from expert

witnesses the state intends on calling to testify to trial. This did not happen. If the

state wished to call Dr. McPherson, it was obligated to provide the defense with her

expert report — even if the defense already had a prior report that Dr. McPherson

had authored on behalf of the defense for the 2017 trial. Accordingly, the state’s violation of Crim.R. 16(K) should have precluded Dr. McPherson from testifying.

See State v. Fowler, 7th Dist. Columbiana No.

,

(Crim.R. 16(K) limits a trial court’s discretion and requires the expert testimony

excluded); State v. Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700, 2019-

Ohio-2985, ¶ 54-55 (exclusion of expert testimony is the only remedy provided for

under Crim.R. 16(K)).

In a footnote, the separate opinion finds that the state’s

noncompliance with Crim.R. 16(K) was not prejudicial because the defense had a

copy of Dr. McPherson’s expert report from the first trial. It is this writer’s opinion,

that it is irrelevant whether the defense was in possession of Dr. McPherson’s expert

report that she authored in preparation for the first trial because this was a new and

separate trial and she was testifying on behalf of the state. Crim.R. 16(K) does not

qualify or exempt either the state or the defense from its mandated requirements

merely because the party may have in its possession a prior expert report.

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. (Tr. 602.) The state rebutted that the testimony that Dr. McPherson was now

testifying to was information that the prosecutor “inquired to at the last trial, so you

can’t say you’re surprised by it. You sat through the last trial and you heard her

testify.” (Tr. 603.)

In Boaston,

,

,

, 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

Crim.R. 16(K). The purpose of the rule is ‘“to avoid unfair surprise by providing

notice to the defense and allowing the defense an opportunity to challenge the

expert’s findings, analysis, or qualifications, possibly with the support of an adverse

expert who could discredit the opinion after carefully reviewing the written report.”’

Id. at ¶ 48, quoting State v. Perry, 11th Dist. Lake No. 2011-L-125,

,

¶ 55. See also Fowler at ¶ 40 (allowing testimony beyond the scope of the expert

report may have hampered the defense and improperly bolstered the child victim’s

credibility).

Accordingly, what occurred here at trial is exactly what the purpose

behind the 2010 revisions to Crim.R. 16 were intended to prevent — unfair surprise

that materially prejudices the defense. Pursuant to Crim.R. 16(K), an expert testifies

in accordance with her previously disclosed report; the expert does not testify in

accordance with prior trial testimony. In this case, the state utilized an undisclosed

expert report and combined it with prior trial testimony to circumvent the strict

mandates of Crim.R. 16. Furthermore, even if Crim.R. 16(K) allows for this tactical maneuver,

the state’s eleventh-hour addition of Dr. McPherson was not in compliance with

Crim.R. 16’s 21-day timeframe. The Ohio Supreme Court made it clear in Boaston

that

[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 while Crim.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.”

.

In this case, the state did not seek to extend the timeframe under

Crim.R. 16 and, in fact, did not advise the court that it supplemented its witness list

until the day that trial was scheduled to begin. This writer is not persuaded by the

state’s claim that it did not inform defense counsel of its intention to call Dr.

McPherson as a state’s witness until it found out that she was not going to be called

as a defense witness. Even if the state could have used a previously retained defense

witness as its own expert, there was nothing to preclude the state from contacting

defense counsel well before the second trial was held to discuss expert witnesses or

to have an expert report prepared. The state chose not to do either. Instead, the

state supplemented its witness list on the day trial was set to begin, February 24,

2020, and defense counsel was unaware of the state’s plan until at least that date, in

violation of the both the letter and the intent of Crim.R. 16. The state’s violation of Crim.R. 16(K) is further exacerbated by the fact

that Dr. McPherson was not presented or qualified as an expert for the jury. The

state admits it used Dr. McPherson as an expert, yet it failed to present her as such

for the jury. We are cognizant that the Ohio Supreme Court has held that “no plain

error occurs when the state fails to formally tender an expert.” State v. Thompson,

,

,

. But in this case, our

review is not for plain error. Moreover, not only did the state fail to formally tender

Dr. McPherson as an expert, the court never qualified Dr. McPherson as an expert

witness.3

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

3 Compare defense counsel’s actions in qualifying its expert witness, Dr. Leo. After asking Dr. Leo about his extensive background and qualifications, defense counsel queried:

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. in the first trial, this trial was a separate trial and must be treated as such. While

defense counsel, who retained Dr. McPherson in the first trial, does not dispute her

qualifications as an expert, this writer does not find that to be a determinative factor.

Evid.R. 702 governs the admissibility of expert testimony. A witness

may testify as an expert if all of the following apply: (1) the witness’s testimony

relates to matters beyond the knowledge or experience possessed by lay persons or

dispels a misconception common among lay persons; (2) the witness is qualified as

an expert by specialized knowledge, skill, experience, training, or education

regarding the subject matter of the testimony; and (3) the witness testimony is based

on reliable scientific, technical, or other specialized information. Evid.R. 702.

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,

(Mar. 4, 1993). Evid.R. 702 “is

rooted in the fact that the jury is unable to draw proper inferences from the facts in

certain situations. An expert witness, however, is qualified to arrive at such

conclusions by reason of his or her expertise in a particular field.” State v. Campbell,

1st Dist. Hamilton Nos. C-010567 and C-010596,

, ¶ 31.

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 that Dr. McPherson was testifying as an expert witness, but instead replied that

defense counsel already had Dr. McPherson’s report from the first trial.

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 Evid.R. 701.

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.

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 Crim.R. 16(K) and therefore, should not have been permitted to present Dr. McPherson as its expert

witness.

4. Prejudicial Error

Having found that the trial court erred in allowing Dr. McPherson’s

testimony, we must determine whether that error is harmless. Crim.R. 52(A)

provides that “[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.” Under the harmless-error standard of

review, the state “bears the burden of demonstrating that the error did not affect the

substantial rights of the defendant.” State v. Perry,

, 2004-Ohio-

297,

, citing United States v. Olano,

,

,

(1993). In most cases, in order to be viewed as “affecting

substantial rights,” “‘the error must have been prejudicial.’” (Emphasis deleted.)

State v. Fisher,

,

,

, quoting

. Accordingly, Crim.R. 52(A) asks whether the rights affected are

“substantial” and, if so, whether a defendant has suffered any prejudice as a result.

State v. Morris,

,

,

.

In State v. Harris,

,

,

, 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

Crim.R. 52(A): 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.

, citing Morris at ¶ 27-29.

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.

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.

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.

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,

(N.D.N.Y. 1995).

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.

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.

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 when he testified at trial. There were numerous inconsistencies with his testimony,

including who was present and what transpired. The child also failed to disclose the

alleged abuse during multiple interviews, indicating to police that Ferricci was “just

going tinkle.” Ferricci testified, denying the allegations, and contended he only

confessed to the crime due to overbearing, coercive interrogation tactics.

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.

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 their penis in the child’s mouth is pretty low unless it actually happened.

(Tr. 598.)

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.)

In State v. Walls,

,

(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. In Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700, 2019-Ohio-

2985, the First District found reversible error where the state utilized a detective as

an expert without submitting an expert report in contravention of the plain language

of Crim.R. 16(K). Id. at ¶ 20. The court concluded that the error was not harmless

because the state intended the detective’s testimony “‘to carry great weight with the

jury,’” id. at ¶ 21, quoting

, by focusing on the detective’s extensive

experience and training to bolster the victim’s credibility. The court found the state’s

use of the detective’s testimony in this manner extremely troublesome because

without it, “the jury might have considered the lack of physical evidence and the

victim’s credibility in a different light.” Id. at ¶ 22. The court found the state’s

actions even more offensive in its use of the detective’s testimony during closing

arguments. During closing argument, the state repeatedly referred to the defendant

as a “predator” or “wolf.” The First District noted the increase in instances where

prosecutors have engaged in tactics of name-calling and invading the jury’s realm

by rendering personal beliefs. Id at ¶ 30-31; see also State v. Walker, 8th Dist.

Cuyahoga No. 110741,

(prosecutor’s comments to end the cycle of

violence invaded jury’s province). Although the First District found the prosecutor’s

name-calling reprehensible, it found the conduct even more egregious and

amounted to plain error when coupled with the state’s use of the detective’s

testimony during closing. “When the jury’s determination of guilt rests solely on the

question of which testimony they believed, the victim’s or [the defendant’s], the

prosecutor’s conduct (denigrating the defendant, calling him a ‘wolf’ and a ‘predator,’ vouching for the state’s witnesses) compounded the problems inherent

in admitting [the detective’s] testimony). Id. at ¶ 39.

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.”

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.)

The state referenced Dr. McPherson’s opinion that C.W.’s initial

disclosure to his mother was “an extremely reliable circumstance” that was free from

any “dangers of corrupting the information.” (Tr. 947.) Likewise, the state implored

the jury to rely on Dr. McPherson’s expert opinion when analyzing C.W.’s credibility

and testimony at trial:

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.)

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,

,

,

.

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 contest” between the victim and the defendant and no independent evidence exists.

State v. Burrell,

,

(9th Dist. 1993). Allowing

into evidence testimony that the state’s expert witness was originally retained by the

defense unfairly prejudiced Ferricci’s constitutional right to a fair trial. It put the

defense in the position of cross-examining a witness it had previously retained and

left defense counsel in the position of having to justify to the jury why the state called

the witness instead of the defense. The error in allowing the admission of Dr.

McPherson’s testimony became unduly prejudicial by the state’s repeated

statements in closing arguments that the doctor had been retained by the defense.

The improper testimony and comments effectively permitted the jury to infer not

only that the defense was attempting to withhold damaging evidence, but that Dr.

McPherson’s testimony and, in turn, C.W.’s allegations against Ferricci, were

deserving of more credibility. We agree with appellant’s argument that this led to

impermissible burden shifting. Essentially, the state’s comments that its own

witness was previously retained by the defense implied that the defense had an

obligation to put forth evidence but instead hid it from the jury. To do so was one of

the many errors that, when viewed together, deprived Ferricci of a fair trial.

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, Ferricci’s first assignment of error is sustained and his conviction is reversed. The

remaining assignments of error, also challenging evidentiary rulings and the

evidence presented at trial, are hereby rendered moot. See App.R. 12(A)(1)(c)

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:

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 no longer retained her as its expert in the new trial. Therefore, the trial court did

not abuse its discretion in permitting the state to call Dr. McPherson to testify in the

new trial. I agree, however, with the lead opinion’s determination that appellant was

substantially prejudiced by the state’s improper elicitation of Dr. McPherson’s

testimony that she was originally retained by the defense and the error was

compounded by the state’s repeated allusions to that information at its closing

argument.

Work-Product Doctrine

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,

, citing

Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp.,

,

,

. The doctrine initially arose in the civil

context but has long been extended to the criminal context. United States v. Nobles,

,

,

(1975).

Crim.R. 16(J) incorporates the work-product doctrine and explicitly

protects material subject to the work product protection from disclosure in criminal

cases. State v. Glenn,

,

,

.

Crim.R. 16(J) states, in pertinent part:

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,

(Aug. 27, 1999). In the context

of Crim.R. 16, the courts have treated an expert as an agent of the prosecutor or

defense counsel. See, e.g., State v. Kopchak, 5th Dist. Muskingum No. CT2017-

0036,

(addressing the propriety of the state’s use of a

defense-retained expert, the court explained that it was necessary that the work-

product doctrine protected material prepared by agents for the attorney as well as

those prepared by the attorney).

Issue of First Impression

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

4The transcript reflects that, at a side bar, the prosecutor represented to the trial court that Dr. McPherson had told the prosecutor that she has not talked to the defense since the first trial and there has been no communication between her and the defense. (Tr. 602.) Extension of Work-Product Protection to Expert’s Testimony

On its face, Crim.R. 16(J) does not speak to the issue of whether the

state can call a defense-retained expert as a state witness. Crim.R. 16 regulates the

process of discovery and the work-product doctrine typically applies to documents

rather than oral testimony. Vore v. Warden, S.D.Ohio No. 1:13-cv-800,

, 13 (Dec. 17, 2014).

However, some courts have extended the work-product protection

incorporated in Crim.R. 16 to the testimony of an expert retained by the defense

counsel, holding that the use of a defense-retained expert by the state was error

pursuant to the work-product doctrine (or the related attorney-client privilege).

Kopchak, 5th Dist. Muskingum No. CT2017-0036,

(permitting the state to call a defense-retained DNA expert to present evidence

cumulative to its own DNA expert was error); Fairchild, 2d Dist. Darke No. 1481,

, 15 (the use of testimony of a defense-retained

fingerprint expert by the state contravened the work-product doctrine); and State v.

Delaney, 10th Dist. Franklin No. 92AP-1408,

(Sept. 2,

1993) (the admission of a handwriting expert’s testimony for the state was in

contravention of appellant’s attorney-client privilege). See also State v. Richey,

,

(1992) (“the right to the effective assistance of

counsel includes access to defense experts, and the state’s use of such witnesses could infringe an accused’s attorney-client privilege”).5 In these cases, the experts

were retained by defense counsel but were not called by the defense to testify at the

trial. The court held that allowing such experts to testify for the state in its case in

chief contravened the work-product privilege.

Waiver of Work-Product Privilege

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,

(“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

5 But see State v. Freshour, 4th Dist. Pickaway No. 83 CA 32,

, 23 (Mar. 19, 1986) (Crim.R. 16 only regulates the process of discovery and it “does not prevent the state from engaging in its own investigation and calling an expert previously hired by an accused on direct examination”); and State v. Webb, 9th Dist. Summit No. 8546,

, 7 (Jan. 5, 1977) (“[O]nce defense counsel stated he did not intend to call the handwriting expert as a witness, any confidentiality concerning the expert’s reports or statements was lost. At that point, the expert could no longer be either an agent of [defendant’s] attorney or a prospective witness. The state was, consequently, free to call the expert as its witness.”). that, while appellant asserts work-product protection as grounds for the exclusion

of Dr. McPherson as the state’s expert witness, Dr. McPherson was not retained by

the defense as its expert in the new trial.

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,

(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

6 Regarding the requirement of Crim.16(K), I agree with the lead opinion that State

v. Boaston,

,

,

, required the exclusion of Dr. McPherson’s testimony that went beyond the scope of the written report. In that case, the expert’s report was provided to the defense but the report did not contain all the opinions the state elicited from the expert. The Supreme Court of Ohio held that it was error to admit the expert’s testimony on the topics not set forth in the expert’s report. Generally, “the purpose of Crim.R. 16(K) is to avoid unfair surprise by providing notice to the defense and allowing the defense an opportunity to challenge the expert’s findings, analysis, or qualifications, possibly with the support of an adverse expert who could discredit the opinion after carefully reviewing the written report.” State v. Perry, 11th Dist. Lake No. 2011-L-125,

, ¶ 55. Here, while the defense would be hard pressed to claim surprise by its own expert’s report, the state elicited testimony from Prejudice

While I believe neither Crim.R. 16 nor the case law precedent

prohibits the state from presenting the testimony of Dr. McPherson, I agree,

however, with the majority regarding the two questions we sua sponte raised in

connection with appellant’s first assignment of error: (1) did the trial court err when

it allowed into evidence testimony that the defendant retained Dr. McPherson, and

(2) was it error for the state to comment during closing argument on which party

retained Dr. McPherson?

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 Evid.R. 402. In any event, any

purported probative value of the information is substantially outweighed by the

danger of prejudice. Evid.R. 403(A). This testimony served to imply the defense

was attempting to withhold unfavorable evidence from the jury and improperly

Dr. McPherson on the topic of the likelihood of false initial disclosures, which was beyond the scope of her report. Therefore, in my view, while it was harmless error for the trial court to allow Dr. McPherson to testify when her report was already in the defense’s possession, her testimony on the likelihood of the child’s initial disclosure being false went beyond the scope of her written report and its admission was error pursuant to Boaston. I note, however, the issue of whether the state complied with Boaston was not specifically raised by Ferricci on appeal. 7While the defense objected to the state’s calling Dr. McPherson as its witness, the transcript reflects that the defense did not raise a specific objection when she testified that she was involved in this case because she was retained by the defense counsel. bolstered the credibility of Dr. McPherson’s opinion elicited by the state that the

initial disclosure the child made to his mother would likely be the most reliable

version of events.

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.

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.