The defendant, Ryan German, appeals his convictions for attempted murder, first degree assault, and simple assault. He argues that the trial court erred when it failed to exclude the testimony of Dr. Jay Burns, an emergency room physician who treated the victim. We affirm.
The injuries suffered by the victim in this case included a severe laceration of the neck, which required surgery. It was caused by a knife that the defendant brought to the victim's home.
The issue at trial was the defendant's mental state at the time of the assault. The defendant contended that he did not act knowingly or purposely and that the victim's neck injury was "consistent with an accidental cut as a result of a struggle over a knife."
The following procedural history was presented at the hearing on the defendant's motion in limine. The defendant was arraigned in April 2010. After several continuances, the case was scheduled for jury selection on February 21, 2012. In May 2011, the State sent a letter to the defendant advising him that the State intended to call as an expert witness, Dr. Stock, the surgeon who repaired the victim's injury. The State advised that Dr. Stock would testify: (1) about medical records that had been provided during discovery; (2) about the anatomy of the neck; and (3) that the neck injury sustained by the victim was life threatening. At some point thereafter, the defendant obtained new counsel. On January 31, 2012, the State sent two letters to defense counsel. One letter advised that the State intended to call Dr. Stock and expected her to testify, inter alia, that the neck injury sustained by the victim "was life threatening and not consistent with having been sustained accidentally during the course of struggle." The other letter advised that the State intended to call Dr. Burns who was expected to testify, inter alia, that the neck injury sustained by the victim was "not consistent with having been sustained accidentally during the course of a struggle." At the time the letter was sent, the State had not discussed with Dr. Burns his expected trial testimony.
The defendant's motion in limine sought to exclude the "purported expert testimony" of Dr. Stock and Dr. Burns. Because the defendant challenges only the admission of Dr. Burns' testimony on appeal, we limit our summary of the motion to the grounds relevant to Dr. Burns. The defendant argued: (1) the expert disclosure did not include a summary of Dr. Burns' education and experience; (2) it did not include a summary of the grounds for each of his opinions; and (3) he was not on the State's most recent witness list dated December 22, 2011. At the hearing on the motion, the prosecutor explained that she had included him on her original witness list but had stricken his name after discussing the case with Dr. Stock. To accommodate defense counsel, the prosecutor subsequently agreed to a trial date during a specific week, and then learned that Dr. Stock was unavailable that week. She therefore added Dr. Burns back onto her witness list.
The trial court denied the defendant's motion but ordered the State to provide the curriculum vitae of Dr. Burns and authorized defense counsel to take the depositions of both Dr. Burns and Dr. Stock "up to the time of trial."
Prior to his deposition, the State discussed the case with Dr. Burns on February 12, 2012, at which time he opined that the existence of a single slash and the contour of the neck wound would make it less likely that it was the result of an accident. The State did not disclose this opinion to defense counsel before Dr. Burns' deposition on February 16, 2012. At his deposition, he testified that on February 12, 2012, he told the prosecutor that he "could not make a statement that it was definitively caused purposefully." Dr. Stock had been deposed on February 15, 2012. Defense counsel filed a new motion in limine, seeking to exclude Dr. Burns' testimony on the basis that: (1) the State had failed to "disclose Dr. Burns' disavowal of [the State's] expert disclosure"; and (2) the State had elicited "several new expert opinions that had not been disclosed in her expert disclosure letter." This motion was also denied.
On appeal, the defendant argues that the trial court's ruling was error because: (1) the State's untimely and incomplete disclosure violated Superior Court Rule 98; (2) the State failed to demonstrate and the trial court failed to consider whether the proffered testimony was reliable in violation of New Hampshire Rule of Evidence 702; and (3) the admission of Dr. Burns' testimony violated the defendant's right to due process.
We generally accord considerable deference to a trial court's ruling on a discovery sanction and will affirm its ruling absent an unsustainable exercise of discretion. State v. Belton, 159 N.H. 741, 745 (2004). To establish an unsustainable exercise of discretion, the defendant must demonstrate that the trial court's decision was clearly unreasonable and that the decision prejudiced his case. Id. Having reviewed the record in this case, we conclude that the defendant has failed to demonstrate that the trial court's ruling was unsustainable.
The record does not indicate the basis the prosecutor had for believing that Dr. Burns would offer the opinion cited in the State's expert disclosure letter. The record discloses that the State had previously provided the victim's medical records. While we do not endorse a practice of providing expert disclosure based upon conjecture, the procedural history in this case does not support a finding of bad faith on the part of the prosecutor.
Moreover, to the extent that the letters may not have fully complied with Rule 98, the defendant has failed to establish that he was prejudiced. Both doctors testified that the appearance of the wound made less likely that it was caused accidentally; they also testified, however, that they could not rule out the possibility that it had been caused by accident. As the State observes in its brief, their testimony was consistent and less inculpatory than the State had expected.
The defendant also argues that the admission of Dr. Burns' testimony violated New Hampshire Rule of Evidence 702. Dr. Burns testified that he had been practicing emergency medicine since 1985; the defendant did not object to his qualification as an expert in emergency medicine. We agree with the State that, given Dr. Burns' extensive experience in emergency medicine, he was qualified to offer an opinion on the possibility of whether the neck injury was caused accidentally. Because Dr. Burns did not testify to a methodology or technique, we find no unsustainable exercise of discretion in either the trial court's determination of reliability or its decision not to conduct a Daubert hearing, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See, e.g., State v. Pelletier, 149 N.H. 243, 250-51 (2003).
Nor are we persuaded by the defendant's argument that the admission of Dr. Burns' testimony violated his right to due process. In support of his due process claim, the defendant cites our statement in State v. Heath, 129 N.H. 102, 109-10 (1986), that "it is enough for purposes of due process to recognize that specific procedural and factual features of a given case may prompt a claim to discovery on due process grounds." He does not challenge specific discovery procedures. Nor do we find any egregious pretrial discovery conduct committed by the State. The State's evidence included: (1) testimony by the victim and the defendant's mother that at the time of the injury they were trying to push the defendant's knife away from the victim; and (2) a photograph of the victim depicting his neck injury. The defendant also does not challenge on appeal the testimony of Dr. Stock, whose videotaped deposition was played for the jury. She cited several factors that would support a conclusion that the victim's neck injury was not caused accidentally. Accordingly, although we ...