3.Werner Expert-Opinion Proffer and Discovery-Violation Remedy
102 linesMR. OWENS: Well, their discussions and him feeling like it didn't apply --
THE COURT: As an officer of the court, he just told me he spoke to the expert yesterday and the opinions hadn't changed. And the opinion that was offered at the deposition was, I'm not sure. And based on what he had proffered as to what he expected the answer to be, the answer was not going to be any different. It was, it's not applicable, it doesn't matter because of what she told me. That's, unfortunately, not the answer that was given.
So what is it that you're asking me to do at this time, Mr. Owens?
MR. OWENS: I'm asking -- I don't know if we need to proffer the entire testimony of this witness, because opinions and diagnoses have apparently changed. I think I have a right to take a second deposition before she testifies.
THE COURT: What other opinions, Mr. Jay, if any, are going to be offered by Dr. Werner?
THE COURT: Yes.
PROFFER EXAMINATION
BY MR. JAY:
TONIA WERNER: Yes.
TONIA WERNER: No.
MR. JAY: All right. So if I ask you if battered spouse syndrome or PTSD has any relationship to the facts of the case as the defendant relayed them to you, what would be your answer?
TONIA WERNER: That it's not related to the incident as she reported it.
MR. JAY: Okay. And if I ask you, therefore, if there are any prior instances of violence, would that change your opinion, what would your answer be?
TONIA WERNER: No.
MR. JAY: And if you reviewed any other materials -- or materials, would that change your opinion based on what she told you about what happened that evening?
TONIA WERNER: No.
MR. OWENS: Judge, number one, she's given a legal opinion. Number two, it's a discovery violation.
THE COURT: What is the legal opinion?
MR. OWENS: That post-traumatic stress disorder doesn't apply in this case.
MR. OWENS: I would like to have known that that was going to be her opinion before today.
THE COURT: Where is that a change in the deposition?
MR. OWENS: Judge, you're going to have to read the whole transcript --
THE COURT: No, no, no. This is an 87-page transcript. You're objecting, you have the burden to establish your objection.
MR. OWENS: Give me a minute. I'll read through it and find where I asked her.
THE COURT: I mean, this isn't the first I've looked at this deposition. The State provided it to me when we had the hearing on whether or not battered spouse would be permitted. The State provided specific highlights for me to look at. At no point in time did the defense say, look at this, look at this, look at this in her deposition when we had that hearing.
So other than what's being provided to me right now and what's been testified to this morning, I don't know what opinions she has. All I know in coming into today is what the basis of her opinion was specifically with regard to any of the statements that Ms. Boone had provided, which is the whole crux of the State's motion to prevent battered spouse from coming into evidence.
MR. OWENS: Judge, if you look at page 66, line 20. Let me know when you're there, Judge.
THE COURT: Hang on.
Yes, sir.
MR. OWENS: Page 66, line 20, question: Okay. So other than the couple of hours that you intend to maybe reflect on your notes and anything else, any other work that you intend to do on this case?
Answer, 23: No, sir, not that I'm aware of.
Line 24, question: And you've expressed all of your opinions at least generally here today?
Answer, page 67, line 1: Yes, sir.
Question -- then I go into fees.
Then on 67, line 7, question: Just double dog sure, you admit that you have no other opinions other than the ones you've expressed here today?
Line 10, answer: That I've been asked about. If I'm asked something else, then I'll offer it.
No. 12, question: And you've been provided all the resources you need to rely on in expressing your opinions?
Line 14, answer: I have based an opinion on the resources that I have been provided. If there's other things out there to be provided, that may or may not change my opinion.
I believe it's a discovery violation because I should have been notified if there was going to be a change in opinions here today. And we had an agreement that I was going to be allowed to retake the deposition and not be ambushed in the middle of a trial with a new opinion.
THE COURT: What new opinions are different based on what Mr. Jay proffered the testimony is going to be?
MR. OWENS: I'd have to ask Madam Clerk [sic] to re-read the question and the answer from the expert. It's been so long now.
THE COURT: Madam Clerk -- or Madam Court Reporter, are you able to re-read the portion of the proffer as to what Mr. Jay asked of the witness?
COURT REPORTER: If you can give me a few minutes.
THE COURT: Absolutely. Of course.
The Court's going to step off for a moment while Madam Court Reporter is able to provide that readback.
(Brief recess from 10:16 a.m. to 10:29 a.m.)
THE COURT: All right. We're back on the record in Case No. 2020-CF-2603, State of Florida vs. Sarah Boone.
State?
MR. CACCIATORE: Dave Cacciatore on behalf of the State.
THE COURT: Defense?
MR. OWENS: James Owens for Ms. Boone.
THE COURT: Ms. Boone is seated at counsel's table wearing the same clothing from this morning.
Madam Court Reporter, have you had the opportunity to review the transcript as to the proffer of Dr. Werner's testimony?
COURT REPORTER: Yes, sir.
THE COURT: Okay. You may proceed.
(The requested proffer was read back.)
MR. OWENS: JI don't think that's the very beginning before I objected.
THE COURT: What was asked was to read back the proffer.
MR. OWENS: JI thought I was asking to go back to the very beginning when the question was asked and then her response and my objection to it.
THE COURT: What was specifically asked was to the proffer. Because the question before the Court was whether the proffered opinions are at odds with what was testified to during the course of the deposition. There is the question that was asked and the answer that was given affirmatively provided an opinion as to PTSD.
I think Mr. Jay admits that. Mr. Jay has advised the Court, that's not what he was hoping the answer would be, that the answer was supposed to be something different as identified in the proffer, which is why I had Madam Court Reporter read back the proffer.
MR. OWENS: Okay.
THE COURT: So the question Mr. Owens posed to you is whether the proffered opinions that Madam Court Reporter just read back to us are different than what was provided in the deposition.
MR. OWENS: Yes.
THE COURT: How so?
MR. OWENS: She tended to explain in the proffer some legal reason why it did not apply, and her opinion, that was not discussed in any way in the deposition.
THE COURT: My question is specific as to opinions. Her opinions were as to battered spouse syndrome or post-traumatic stress disorder and their relationship to the case based on the defendant's responses. The answer is not related to the incident as the defendant reported. Those are the opinions, as I understand them, based on the proffer as it relates to battered spouse syndrome and post-traumatic stress disorder.
MR. OWENS: JI think I'd refer to page 46, line 13, was the question: But you don't believe that she suffers from post-traumatic stress disorder in your opinion?
Line 15, the answer is: No. I would have to look through -- back through my notes to see if she fully met that criteria.
Question, 17: Can you explain why you don't think she suffers from post-traumatic stress disorder?
Line 19, answer: No, I didn't say one way or the other. I would have to look back through my notes for that.
Question, 21: Is that something that you may in the future give an opinion about after some time reflecting and reviewing your notes?
24: I may.
25: Okay. Well, that's something you will let the lawyers know about if that changes?
That's on page 47, line 2: Yes.
That's fundamentally, substantially, materially different from what she's testified as it relates to post-traumatic stress as it applies in this case.
THE COURT: In the proffer?
MR. OWENS: Excuse me?
THE COURT: In the proffer? She's not rendering -- unless I misunderstood the proffer, she's not rendering an opinion on PTSD and whether or not Ms. Boone suffers from it.
MR. OWENS: She led me to believe that she was trying to decide whether or not Sarah Boone suffered from post-traumatic stress. Now, in the proffer, they're claiming that post-traumatic stress does not apply. I don't know what the initial question was, we haven't had that read back. When it was first going on when the question was asked, and I believe she rendered an opinion. And, again, I would like to re-read back what the initial question was and what the response was because it did -- I know I objected. I can't even remember it now. But I know I objected because I know it was inconsistent with --
THE COURT: You asked to approach and then you explained that the question was not something that was framed in the deposition. Multiple times I asked you for a legal objection. And it wasn't until right before or right after we sent the jury out that you provided some legal objection.
If you want Madam Court Reporter to go back and read the question that led us to where we are right now and the answer, I'm totally on board with that. I have a memory of what it was, but nothing like --
MR. JAY: Before she does that, can I get the first question of the proffer, if BSS or PTSD has -- can you re-read that so I can --
THE COURT: Let's just re-read the entire proffer just so that it's clear, soup to nuts, alpha to the omega, what the proffer was.
Madam Court Reporter, if you could be so kind.
(The requested proffer was read back.)
MR. OWENS: And then if she could go back to the initial?
(The requested question and answer was read back.)
THE COURT: Mr. Owens?
MR. OWENS: Number one, that question and answer she gave a differing opinion than what she gave in her deposition which is subject to the agreement we had.
Number two, with the proffer, it seems that she's going to find that post-traumatic stress disorder did not apply to the facts as related by Sarah Boone, and that gives an opinion that I needed to know about.
And I asked throughout this deposition and at the very end some general, if your opinions -- if you have any new opinions or anything new that differs from what you've said here today, please notify the lawyers, or words to that effect.
So it's an evidentiary issue. I've got a right to be prepared for the trial through discovery to know what the witnesses are going to opine. And this is a discovery violation based on two things. One, her initial answer to the question that I objected to and, then, two, the proffer is a new opinion. It's a discovery violation. I ask that the witness be stricken.
THE COURT: Any response?
MR. JAY: Judge, I think it's clear from my original question that the intent that I stated was the intent of my question to get the answer that I intended to get was what the question was intended to elicit from the witness.
As far as the discovery violations and the continued attacks, I'm just not -- I'm not convinced he understands what the answer means or what it's going to be. The answer isn't going to be, Ms. Boone didn't have PTSD. Hence, therefore, battered spouse syndrome doesn't apply in this case.
What I believe she's going to say, and what I believe I've been saying she's going to say based on our conversations was, irrespective of whether anybody believes Ms. Boone had BSS or PTSD, it is irrelevant because of what Ms. Boone told her happened at the time of the event. That is not a discovery violation.
She was specific in saying, if you have any questions you want to ask me, I'll give you an opinion. That is exactly what she said on page 67 of the deposition in response to a question that starts at line 7, question: Just double dog sure you admit that you have no other opinions other than the ones you've expressed here today?
Answer: That I've been asked about. If I'm asked about something else, then I'll offer it.
They didn't ask about the interplay of the facts with the relevance of the syndrome. That's them, not the State.
THE COURT: Any other argument?
MR. OWENS: The totality -- if you read that deposition --
THE COURT: I specifically asked to you, Mr. Owens, to point out for me --
MR. OWENS: What I'm --
THE COURT: Excuse me. I specifically asked for you to point out specific portions of the deposition that are at odds with either, A, the opinion that was previously given or, B, what was proffered to. You have provided me pages 45 and 46 of the deposition relating to specific opinions on whether or not Ms. Boone suffers from post-traumatic stress disorder.
Are there any other portions of the depo that you would like to point out for me? I am not going to read an 87-page deposition and continue to waste our jurors' time as we try to find a solution for the situation that is now before us.
If there are specific portions of this deposition that are at odds with the opinions that have been proffered and/or provided so far, I would ask you to direct my attention to them.
MR. OWENS: Well, the ones that I --
THE COURT: Other than what you've already identified.
MR. OWENS: The ones that I expressed and then just the understanding that we had that -- in the pages that I have talked about previously here today, the pages that I referred to about our agreement that she was going to let me know if there were any opinions that she had in addition to the opinions that she gave in the transcript.
THE COURT: Okay. Thank you.
All right. Any other argument, Mr. Jay?
THE COURT: Okay. Thank you very much.
The Court has had the opportunity to listen to the proffer as read back by Madam Court Reporter, the read back of the opinion that was previously offered, the portions of the deposition which have been highlighted by the defense specifically pertaining to opinions by the defendant as to whether or not the defendant suffers from post-traumatic stress disorder. That opinion is not being offered. The opinion pertains to the relationship of battered spouse syndrome and/or PTSD as it relates to the facts of the case as the defendant has relayed them to you and that they are not related.
However, the deposition, as identified by the defense, identifies that if there were any additional opinions, that there would be notification.
So, the Court at this point in time, as there has been an alleged discovery violation in accordance with the binding precedent by the Sixth District Court of Appeal, which is binding on this trial court, in Young v. State, 369 So.3d 1243, at pinpoint 1248, the Court is now going to conduct a discovery violation -- or a discovery Richardson hearing.
State, any other argument with regard to the elements of a Richardson hearing?
THE COURT: Okay. Thank you.
Any other arguments with regard to the elements of a Richardson hearing, Mr. Owens?
MR. OWENS: None other than, I understood she did give an opinion about post-traumatic stress in that initial series of questions.
THE COURT: Okay. All right. The Court, again, reviewing the proffer and the opinion, finds that the State's violation was inadvertent based on the proffer by the State, which was agreed to by Dr. Werner as to the conversations they had last night as to the opinions in whether or not they had changed.
However, I do find that that violation is substantial with regard to the opinions based on the testimony and Dr. Werner's deposition that any other additional opinions would be notified to the defense.
As it relates to the third category, the effect on the defendant to properly prepare for trial. Although the questions in the deposition, as highlighted by the defense, so far are -- do not address the opinions being currently offered, I do find that it had some impact on the ability for the defendant to properly prepare for trial.
As it relates to the opinion that was previously provided as read back, specifically, my opinion was that she did not give enough information to diagnose her with PTSD at the time of the evaluation at the jail.
What is your position, if any, with regard to that opinion now that the jury has heard it, Mr. Owens? My question is, do you want it struck?
MR. OWENS: On that issue, we'll address it on
cross-examination.
THE COURT: So you are -- you do not want it to be struck and you do not want a curative instruction?
MR. OWENS: Well, I'm going to question her about post-traumatic stress, so it's going to come out through my cross from the deposition about what she said. And it's inconsistent with what she said here today, so I'm going to want to rely on that question -- or that answer.
THE COURT: All right. Ms. Boone, have you been paying attention to the questions and answers and the readbacks of both the proffered testimony and the opinion testimony?
SARAH BOONE: Yes.
THE COURT: And are you on board with the strategy not to seek to strike that opinion?
SARAH BOONE: Yes.
THE COURT: Thank you.
With regard to the proffered testimony, I'm going to permit now in open court, and I will oversee the deposition for you, Mr. Owens, to inquire as to those opinions.
MR. OWENS: I'm sorry?
THE COURT: With regard to the proffered opinions, the Court will oversee a deposition now and you may proceed.
MR. OWENS: Right now?
THE COURT: Yes. With regard to the proffered opinions. And I believe that will provide a cure for the discovery violation under Richardson based on your request not to strike the prior opinion. And since you're going to utilize that on cross, I find that the prejudice is limited.
But with regard to the new opinions, I will give you the opportunity to depose her now curing the prejudice at that point in time. You may proceed.