Court of appeals reverses murder conviction for failure to give adequate notice of intent to use expert witness

State v. Torres-Garcia, 2006 UT App 45

After a dispute over heroin, Torres-Garcia executed Todd Irwin in a hotel room in front of Irwin’s wife. The court of appeals reversed Torres-Garcia’s murder conviction because he did not receive adequate notice of the State’s expert witness or a continuance.

Although the State served a notice of the witness, Craig Watson, on Torres-Garcia more than thirty-days before trial, it sent the notice to the wrong defense attorney and to the wrong address. Torres-Garcia thus did not discover Watson until five days before trial. The trial court determined that Torres-Garcia was entitled to a continuance to prepare for the witness. The State opted instead not to use Watson’s testimony.

The day of trial, the State pointed the court to an exception in the expert witness notification statute, section 77-17-13(6), for government employees. Because Watson was an investigator in the district attorney’s office he fell under the exception. The court let him testify without granting Torres-Garcia a continuance.

In reversing, the court of appeals focused not on whether the State had complied with the expert witness statute, but rather, on the State flip-flopping before trial:

The essence of the trial court’s error is that it initially ruled one way on the use of Watson as an expert witness, prompting an important concession by the State, and then reversed itself on the morning trial began. The trial court should have recognized that this “false start” lulled Defendant into a state of understandable complacency as concerns giving any pretrial attention to Watson’s expert testimony.

. . .

Thus, given the court’s initial ruling that notice was insufficient and the State’s agreement not to use Watson as an expert, the real problem here was that defendant had no reason in the key preparation days immediately before trial, to think Watson’s expert testimony would be used at trial nor any motive to prepare to meet the testimony.

The court of appeals further held that Torres-Garcia was prejudiced by the failure to grant a continuance because Watson’s testimony substantially rehabilitated the seemingly inconsistent testimony of the State’s only witness to the murder, Irwin’s coke-head wife.

Editor’s note: I disagree with the court’s analysis on prejudice. The court correctly determined that Watson’s testimony destroyed Torres-Garcia’s defense and hurt defense counsel’s credibility. It also correctly noted that the trial court’s failure to grant a continuance prohibited defense counsel from coming up with a new defense.

But that’s not the test for prejudice. An error is prejudicial only if, absent the error, there is a reasonable likelihood of a different outcome. Merely showing that denial of a continuance hurt defendant’s case is insufficient. The court must also determine that defendant could have used the continuance to come up with a response to the expert that would have altered the outcome of the trial.

The court of appeals opined that defense counsel might have used a continuance to prepare to meet Watson’s testimony in other ways—like attacking Watson’s qualifications or reorganizing the defense strategy. But that’s mere speculation, not a showing of a reasonable likelihood of a different outcome. It’s only prejudice if Watson’s qualifications are actually impeachable, or if there is some other viable defense strategy that would result in an acquittal. Absent such a showing, the court is reversing a murder conviction on mere speculation that a retrial might end in acquittal.