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Frye v. Ayers

November 13, 2008




The parties' motions in limine came on for hearing November 12, 2008 before the undersigned. Tivon Schardl and Jennifer Corey appeared for petitioner. Wanda Hill Rouzan appeared for respondent. Upon review of the motions and the documents in support and opposition,*fn1 upon hearing the arguments of counsel and good cause appearing therefor, the court finds and orders as follows.

I. Petitioner's Motion to Exclude Testimony of Larry Dixon*fn2

Petitioner moves to exclude the testimony of Larry Dixon and to bar admission of the transcript and CD of respondent's interview of Dixon, exhibits R-1 and R-2. Mr. Dixon was the first attorney appointed by the superior court to represent petitioner at trial. He represented petitioner at his first preliminary hearing but later moved to withdraw. His motion to withdraw eventually was granted and, about one year after Dixon's appointment, Judd Iversen was appointed to replace him. See Dec. 1, 2006 Order at 22. Petitioner makes three arguments that Dixon should not be permitted to testify in these proceedings. Only one has any validity.

Petitioner first argues that because he does not allege Dixon was ineffective, Dixon's performance is not at issue and his testimony is not relevant to claims 2, 3, 7, 25, 28 and 29. During oral argument on this motion, petitioner added that since he has not alleged Dixon was ineffective, he has not waived attorney/client privilege or work product protections with respect to Dixon. While the court indicated it was not deciding the issue from the bench, it addresses the claim now. Petitioner cites no case law for his novel proposition. The purpose of the doctrine that a party waives attorney/client privilege and work product protection when he raises a claim of ineffective assistance of counsel is fairness to the other side. See Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003). The court has granted petitioner's request for an evidentiary hearing on several of his wide-ranging claims of ineffective assistance of counsel. Because Mr. Dixon represented petitioner and, presumably, communicated with Mr. Iverson and Mr. Hawk after they were appointed, it is reasonable to assume he may have information relevant to either petitioner's claims that Iversen and Hawk acted ineffectively or the opposition thereto. Petitioner has waived attorney/client privilege and work product protection for any testimony of Mr. Dixon relevant to the claims at issue in this evidentiary hearing.

Petitioner's second argument that Dixon's testimony should be excluded is that the state was somehow required to seek leave to examine Dixon. The court did not order respondent to seek any such permission and it appears such a requirement would have been inappropriate. See Wharton v. Calderon, 127 F.3d 1201 (9th Cir. 1997) (district court protective order prohibiting respondent from communicating with witnesses, including the petitioner's trial attorneys, except by deposition held invalid). The April 7, 2008 Order gave respondent the option of deposing petitioner's trial counsel or conducting a recorded interview with them. As permitted by the court's order, respondent chose the latter course.

Petitioner's third argument does raise a legitimate concern. The transcript of respondent's counsel's interview with Mr. Dixon shows the tape recorder was turned off and then back on again mid-interview. It was turned off again at Dixon's request after he was asked a question, after which the recorder was not turned back on again. Petitioner states the purpose of tape recording the interview was to permit him to know whether Dixon revealed any privileged or protected information. Pet'r's Oct. 31, 2008 Mtn. in Lim. at 11. His concern is that a post-interview report is not a good substitute because "memories are imprecise." Id. Because the interview took place fairly recently, on April 30 of this year, and the memories of those involved, Deputy Attorney General Maggy Krell, Special Agent David Hordyk, and Mr. Dixon, should still be fresh, the first step to determining whether or how serious a problem has been created by the acknowledged failure to comply fully with the court's prior order is to have each participant submit a statement of what occurred during any periods of their meeting when the tape recorder was not running. After the court and counsel receive those statements, and after any additional input from counsel, petitioner's motion to exclude or limit Mr. Dixon's testimony will be submitted.

II. Petitioner's Motion to Limit Testimony of Dr. Reese Jones

Respondent's mental health expert, Dr. Reese Jones, is scheduled to testify by deposition in mid-December. Petitioner's makes several requests to limit or exclude Dr. Jones's testimony.*fn3 First, petitioner seeks to limit Dr. Jones's testimony to opinions regarding psychiatry. He contends Dr. Jones is not qualified to testify as an expert in either neurology or neuropsychology. Respondent contends Dr. Jones has been certified in neurology as well as psychiatry. As a first step in resolving this question, the court requires more information. The court will require respondent to file a declaration from Dr. Jones detailing his qualifications to testify in the fields of neurology and neuropsychology, including whether or not he is board-certified in neurology.

Petitioner next seeks to limit Dr. Jones's testimony to the subject matter of his report and deposition. That limitation is the standard for all expert testimony in this proceeding. However, as was made clear during argument on these motions, if the testimony of petitioner's experts exceeds the scope of their reports, Dr. Jones may testify in rebuttal to any subjects outside the scope.

Finally, petitioner objects strenuously to Dr. Jones's testimony as a whole because he contends respondent violated petitioner's privacy rights when he provided some of petitioner's medical records to Dr. Jones and because he alleges Dr. Jones did not bring to his deposition all of the documents that Jones reviewed before preparing his report. Again, the court requires more information before resolving these issues. As noted at hearing, the court will order respondent to submit a declaration from Dr. Jones regarding whether or not he provided petitioner with all documents he reviewed. In addition, the court will order the parties to narrow the medical documents to a subset of just those not previously disclosed and that petitioner therefore contends were obtained inappropriately by respondent.

Good cause appearing, IT IS HEREBY ORDERED as follows:

1. Respondent's request to expand the record, reflected in his May 15, 2008 Witness and Exhibit List and in his October 31, 2008 Statement Regarding Request to Expand Record, is denied.

a. Respondent requests expansion of the record with exhibits previously labeled B, K, and L, now identified in respondent's evidentiary hearing exhibit binder as B, D-1, D-2, E-1 and E-2. These exhibits are the declaration of Eric Bryson, and the transcripts and CDs of interviews of Dennis Sherck and Ted McQuinley. This request is denied because, as respondent appears to ...

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