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State v. Davidson9/14/2001
f what she had done and why she had acted to defend herself presented that defense in graphic detail. Her statement to Officer Neeley did not necessarily contradict her candid admissions of the extent of the stabbing and cutting she felt compelled to inflict to extricate herself from further physical harm or possible death at the hands of a man who had "nearly killed her * * * a few years earlier." The added reference to what Robinson had deserved for the brutal assault upon her in 1997 could logically and reasonably have been discounted by the jury in its deliberations when determining whether Davidson's defense had been proven by a preponderance of the evidence. The issue was not clouded.
It was clear. The instruction on the subject posed the question accurately. In our estimate, the decision of Davidson's trial counsel to go on with the case demonstrated appropriate trial strategy, when considered in light of the totality of circumstances in this case, and was not violative of an essential duty owed to Davidson or prejudicial to the outcome of her trial. Accordingly, the third assignment is without merit and is overruled.
The fourth assignment is that the court erred when it allowed the prosecutor to adduce evidence in the form of statements attributed to Davidson that had not been provided in discovery. The disputed statements were those related by Officer Neeley when he questioned Davidson after he had chanced upon her outside the justice center some ten days after the alleged assault upon Robinson. In support of this proposition, Davidson submits that the use of the statements violated Crim.R. 16 and prejudiced her because the statements "devastated her defense strategy."
The case to which Davidson cites us, State v. Scudder (1994), 71 Ohio St.3d 263, 643 N.E.2d 524, is one in which the Ohio Supreme Court reviewed a conviction for capital murder. The first proposition of law was that the appellant had been denied a fair trial because the prosecutor had violated the rules of discovery by failing to notify the appellant that the prosecution proposed to present testimony from experts. The court noted that Crim.R. 16(E)(3) permits a trial court to exercise discretion in determining an appropriate sanction for a discovery violation. Accordingly, the standard of review in the context of this case is that of abuse of discretion.
Officer Neeley's testimony relating what "he said and she said" outside the justice center was discussed in detail with counsel, on the record, in chambers. That colloquy came on the heels of a lengthy discussion of the proposed instructions on self-defense, which itself followed the discussion set forth in our disposition of the third assignment. After indicating to counsel that the court had already ruled on the admissibility of Officer Neeley's testimony, the court addressed itself to defense counsel:
Quite frankly, I have to say to you that I don't know if what she alleged to have said really damages your case at all. In fact, it helps to establish her state of mind in terms of being afraid of the victim.
At that point, defense counsel moved to strike Officer Neeley's testimony relating to Davidson's responses. The court overruled the motion, after remarking that it was tardy, but noted counsel's objection.
The totality of the circumstances demonstrated within the record convinces us that Davidson was not prejudiced when the disputed statements are gauged by the standard set forth in Scudder. As we see it, the court acted reasonably in letting Neeley's testimony stand as it had been limited and did not abuse its discretion in refusing to sanction the prosecution further. Therefore, the fourth assignm
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