Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Harris v. State (10/31/2008) ap-2190

Harris v. State (10/31/2008) ap-2190

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ROBERT LEO HARRIS JR., )
) Court of Appeals No. A-9548
Appellant, ) Trial Court No. 1JU-04-925 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2190 October 31, 2008
)
          Appeal  from the Superior Court,  First  Judi
          cial District, Juneau, Larry R. Weeks, Judge.

          Appearances:  Paul E. Malin, Assistant Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,  Anchorage, for the Appellant.   W.
          H.  Hawley  Jr., Assistant Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          The  primary issue presented in this appeal is whether,
and under what circumstances, a trial judge has the authority  to
exclude or restrict expert testimony offered by the defendant  in
a  criminal case if the judge finds that the defense attorney has
willfully  (that  is,  purposely) violated the  duty  imposed  by
Alaska  Criminal  Rule 16(c)(4) to disclose that evidence  before
trial.
          Under  federal law, a judge clearly has this authority.
In  Taylor  v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98  L.Ed.2d
798 (1988), the United States Supreme Court upheld a trial judges
exclusion  of  a  defense  witness  after  the  defense  attorney
willfully  violated the duty under Illinois law to disclose  this
witness.1   The  defendant  in  Taylor  argued  that  the   Sixth
Amendment absolutely barred the states from excluding potentially
exculpatory evidence as a penalty for a discovery violation,  but
the  Supreme  Court rejected that contention.2  The defendant  in
Taylor also argued that it was fundamentally unfair to visit  the
sins  of  the  lawyer  upon  [the] client.3   The  Supreme  Court
rejected that contention as well:
          
          Putting to one side the exceptional cases  in
          which counsel is ineffective, the client must
          accept   the  consequences  of  the   lawyers
          decision   to  forgo  cross-examination,   to
          decide  not to put certain witnesses  on  the
          stand,  or  to  decide not  to  disclose  the
          identity  of certain witnesses in advance  of
          trial.  In this case, [the] petitioner has no
          greater right to disavow his lawyers decision
          to  conceal  [the  witnesss]  identity  until
          after the trial had commenced than he has  to
          disavow the decision to refrain from adducing
          testimony  from  the  eyewitnesses  who  were
          [properly] identified [before trial].
          
          Taylor, 484 U.S. at 418, 108 S.Ct. at 658.
          Alaska Criminal Rule 16(c)(4)   the
rule  that  governs  a  defendants  duty   to
disclose  expert testimony to the  government
before  trial   also explicitly grants  trial
judges  the  authority to exclude the  expert
testimony if the judge concludes (1) that the
defense attorney has violated the duty of pre-
trial  disclosure, and (2) that a continuance
is  not  an  adequate remedy for the  defense
attorneys violation:

Failure  to  provide timely disclosure  under
this  rule shall entitle the prosecutor to  a
continuance.   If  the  court  finds  that  a
continuance  is not an adequate remedy  under
the  circumstances of the case, the court may
impose other sanctions, including prohibiting
the  defendant  from calling  the  expert  at
trial.

          In    the   present   appeal,   the
defendant    makes   alternative   arguments.
First,  the defendant argues that  his  trial
attorney  did not willfully violate the  duty
of   disclosure  imposed  by  Criminal   Rule
16(c)(4).   But this is a question  of  fact.
The  trial  judge expressly  found  that  the
          defense attorney acted willfully  i.e., that
he  knowingly violated the duty of disclosure
with a conscious motive to handicap the State
at trial.  The record supports this finding.
          Next,  the  defendant  argues  that
even   if  his  attorney  willfully  violated
Criminal  Rule  16(c)(4),  the  trial   judge
abused   his   discretion  when   the   judge
concluded that the attorneys violation of the
rule  could not be adequately remedied  by  a
continuance.   But  as  we  explain  in  this
opinion,  the defendants trial had previously
been  continued,  several months  before,  to
give the defense attorney time to comply with
Criminal    Rule   16(c)(4).     Under    the
circumstances presented here, it was  not  an
abuse  of  discretion for the trial judge  to
conclude  that  another continuance  was  not
adequate  to cure the prejudice to the  State
and  to ensure that there would be no further
violations.
          Finally, the defendant asks  us  to
reject   Taylor   as  a   matter   of   state
constitutional  law,  and  to  declare   that
Alaska    Criminal    Rule    16(c)(4)     is
unconstitutional  to  the  extent   that   it
authorizes exclusion or restriction of expert
testimony   as  a  sanction  for  a   willful
discovery  violation.  In  other  words,  the
defendant  asks  us to hold that,  under  the
Alaska  Constitution, it is never permissible
for  a  trial  judge  to  use  exclusion   of
evidence   as  a  sanction  for   a   defense
attorneys  violation of the duty of pre-trial
disclosure   no  matter  how  egregious   the
violation,  and  no  matter  how   much   the
violation prejudices the government.
          But  like  the statutes enacted  by
the Alaska Legislature, all rules promulgated
by  the Alaska Supreme Court are presumed  to
be constitutional.  For the reasons explained
in   this  opinion,  we  conclude  that   the
defendant has failed to rebut the presumption
of   constitutionality   that   attaches   to
Criminal Rule 16(c)(4).

The underlying criminal allegation

     A  Juneau  grand  jury  indicted  Robert  Leo
Harris  Jr.  for  both  first-  and  second-degree
assault  upon  an infant.  The indictment  charged
that,  sometime between July 1, 2003 (the date  of
the  infants  birth) and October 13, 2003,  Harris
inflicted brain injury on the infant (first-degree
assault)  and  also  broke  several  of  his  ribs
(second-degree assault).  Harris was also indicted
on  a separate count of second-degree assault  for
allegedly breaking the infants arm on November  7,
2003.
     The  baby was born on July 1, 2003 to  Harris
and his girlfriend, Shannon Renton.  According  to
the  States evidence, the baby suffered a  seizure
on the afternoon of October 12, 2003.  Just before
this  seizure,  the  baby vomited,  had  a  slight
fever,  and  appeared to be out of it.   Then  the
babys eyes rolled upward and began to flicker, the
babys  fingers started jerking, and his body began
to twitch.  Harris and Renton took the baby to the
hospital.
          At  the hospital, a pediatrician administered
anti-seizure   medicine,  and   the   babys   condition
stabilized.  However, during the night, the baby  again
began  to  seize, and it took a long time to  stabilize
him.    The  pediatrician  decided  to  have  the  baby
medevacked to Seattle.  In preparation for transporting
the  baby, x-rays were taken.  These x-rays showed that
the baby had healing rib fractures.
          In  Seattle, doctors confirmed that the  baby
had  healing  fractures on at least five of  his  ribs.
The  doctors  also found signs that the baby  had  been
deprived  of oxygen for a significant period  of  time,
causing severe and irreversible damage to his brain.
          According  to the treating physician,  unless
an infant has been in a car crash or has fallen from  a
great  height,  rib fractures of the type  observed  in
this  case  are  most likely caused  by  non-accidental
trauma  (i.e., physical abuse).  Moreover, the location
of  this  babys fractures was typical for the fractures
caused  by  holding  a baby and applying  inappropriate
pressure to its body.
          Harriss    and   Rentons   baby   was    born
prematurely.   At trial, a physician who  reviewed  the
babys   x-rays   acknowledged  that  premature   babies
sometimes have problems with weak bones.  However, this
physician testified that there was no evidence  of  any
abnormalities  in  this  babys bones  that  might  have
caused the rib injuries.
          While  the baby was being treated in Seattle,
the  police interviewed  Harriss daughter,  A.H..   The
police  asked A.H. whether she had ever seen her father
or Renton hurt the baby.  A.H. said no.  However, after
this  first  interview, A.H. told her school  counselor
and  another police officer that she had not  told  the
interviewer everything she observed.
          A.H.  stated that she had seen her father  do
things  to  the baby that made her uncomfortable:   she
had  seen her father put the baby face down on the  bed
and then push or rub the babys body into the bed for  a
few  seconds to get him to stop crying.  She  had  also
seen  her father push the babys chin upwards, to  force
his  mouth  closed and muffle his crying.  A.H.  stated
that  both  she and Renton had told Harris  not  to  do
this, but that Harris did not listen to them.
          On  October 29, 2003, the baby was discharged
from  the  hospital  in Seattle  into  the  custody  of
Harriss  sister, Linnea Harris.  However,  both  Harris
and Renton lived with Linnea, so they continued to have
physical access to the baby.
          On  November 6, the babys guardian ad  litem,
Jeanine Reep, visited Linnea Harriss home.  Harris  and
Renton  were  there when Reep arrived.   The  baby  was
asleep  for most of Reeps visit, but toward the end  of
the  visit  the baby woke up and vomited.   After  Reep
left,  Renton  took the baby into the shower  to  bathe
him.  According to Linnea, after this bathing was over,
Renton called Harris to come take the baby.  Harris got
the  baby,  wrapped  him  in a towel  or  blanket,  and
brought  him into the living room and laid him  on  the
couch.
          When  Harris  unwrapped  the  baby,  it   was
obvious  that there was something wrong:  the baby  was
screaming and seemed to be in pain, and his arm was not
moving.  Harris and his sister Linnea took the baby  to
the hospital.
          At the hospital, the baby was found to have a
mid-shaft  fracture  of  the  right  humerus  (i.e.,  a
fracture  in the middle of his upper right  arm).   The
attending  doctor  noted that this type  of  injury  is
consistent with the patient being grabbed in the  elbow
region  and ... force being applied to the humerus  ...
[so that] the apex of the fracture ben[ds] outward from
the body.
          Harris  and  Linnea  denied  that  they   had
intentionally  injured the baby.   Later,  when  Renton
arrived  at  the hospital, she too denied  causing  any
injury  to the baby.  Both Harris and Renton  told  the
doctor  that, even before Reeps visit, they had noticed
that  the  baby was not moving his right arm, and  they
called  the  doctors  office to  make  an  appointment.
Then,  when  the  baby  grew fussy  and  vomited  after
feeding, and when his arm did not improve, they decided
to bring the baby to the emergency room.
          A  few  days  later, on November  12th,  when
Renton  was  interviewed by the police,  she  told  the
officer that she thought the fracture to the babys  arm
occurred  when  she was bathing him in the  shower,  or
when  she wrapped him in a towel after the shower   but
she could not figure out how she had hurt him.
          A  grand jury indicted both Harris and Renton
on various counts of mistreating and injuring the baby.
Following  a  jury trial, Harris was  found  guilty  of
assault in the third degree for breaking the babys arm.
The  jury  acquitted Harris and Renton of the remaining
charges.

The facts underlying the defense attorneys violation of
Criminal  Rule  16(c)(4) and the superior  courts  pre-
trial  discovery order  and an explanation of the trial
judges ruling

          Harriss  trial  was originally scheduled  for
the last week in October 2004.
          On  August  17,  2004, Superior  Court  Judge
Larry  R.  Weeks issued an omnibus hearing order.   One
section of this order set a deadline of 45 days  before
trial   for  the  State  to  disclose  all  information
concerning  its expert witnesses (i.e., the information
required   by  Criminal  Rule  16(b)(1)(B)).    Another
section  of  this order  a section that is  of  primary
importance to Harriss case  set a deadline of  30  days
before  trial  for the defendant [to] make  the  expert
witness   disclosures  required  by   [Criminal]   Rule
16(c)(4).
          Alaska  Criminal  Rule  16(c)(4)  governs   a
defendants obligation to disclose expert witnesses  and
the  substance  of  their  proposed  testimony  to  the
government  before trial.  Here is  how  that  duty  of
disclosure is defined in the rule:
     
     (4)    Expert  Witnesses.     Unless   a
different date is set by the court, no  later
than  30  days prior to trial, the  defendant
shall inform the prosecutor of the names  and
addresses   of   any  expert  witnesses   the
defendant  is likely to call at  trial.   The
defendant  shall  also  make  available   for
inspection and copying any reports or written
statements of these experts.  For  each  such
expert  witness,  the  defendant  shall  also
furnish to the prosecutor a curriculum  vitae
and a written description of the substance of
the  proposed  testimony of the  expert,  the
experts opinion, and the underlying basis  of
that opinion.

          For  reasons that are not pertinent
to  the  present  appeal, after  Judge  Weeks
issued  the  omnibus hearing  order,  Harriss
trial was rescheduled from October 2004 to  a
new starting date of January 10, 2005.
          On  December 2, 2004 (i.e., 39 days
before  the  scheduled trial  date),  Harriss
attorney,  Assistant  Public  Defender   Eric
Hedland,  filed  a  notice stating  that  the
defense  intended  to  rely  on  the   expert
testimony   of   Dr.   Janice   J.   Ophoven.
According to this notice, Hedland intended to
have  Dr.  Ophoven  testify  regarding  [the]
possible causes of [the babys] injuries.
          A copy of Ophovens curriculum vitae
accompanied this notice, but Hedland  offered
no  description of the substance of  Ophovens
proposed  testimony  that is, no  description
of  Ophovens conclusions, nor any explanation
of    the   underlying   bases   for    those
conclusions.   Instead, Hedland  offered  the
following:

Nor  [sic] report is yet available.   A  more
detailed description of Dr. Ophovens proposed
testimony will be provided when received.

          Five  days later, on December  7th,
the prosecutor sent a memo to Hedland, asking
him  when  the State could expect to  receive
Dr.    Ophovens   report.    The   prosecutor
explained, I cannot prepare for Dr. Ophoven[s
testimony]    or   [investigate    potential]
rebuttal without a report indicating what her
opinion  is  and  the  basis  for  it.    The
prosecutor  added, If I have not  received  a
written  report from Dr. Ophoven by  December
13,  2004  i.e., by the expiration of the 30-
day  pre-trial  deadline established  in  the
omnibus  hearing order4  I will be  filing  a
motion   with  the  court  to  preclude   her
testimony.
          The  prosecutor waited another  ten
days   for  a  description  of  Dr.  Ophovens
proposed   testimony,  or  for   some   other
response  to  his  memo.  None  arrived.   On
December  17th, with Harriss trial just  over
three  weeks  away,  the prosecutor  filed  a
motion  asking  Judge Weeks to  preclude  the
defense from presenting Ophovens testimony.
          In   this  motion,  the  prosecutor
noted  that  medical  testimony  would  be  a
central  component of the States case against
Harris, and the prosecutor asserted that  the
State  had  gone to considerable  effort  and
great difficulty [to arrange] for a number of
physicians  to  testify on January  11th  and
12th  (i.e.,  the second and third  scheduled
days   of  Harriss  trial).   The  prosecutor
further   asserted  that  several  of   these
physicians  were being flown to  Juneau  from
other states, and that a continuance of trial
was  not an adequate remedy for the discovery
          violation because there was a risk that the
State would lose important witnesses.
          That  same day  December  17,  2004
Harriss  attorney filed a motion to  continue
the  trial.  In this motion, Hedland asserted
that a delay of trial was needed because  his
expert,  Dr. Ophoven, had just been sent  the
medical  records in the case, and she [would]
need  more  time  to review the  reports  and
medical records to formulate an opinion.
          On   December  27th,  Judge   Weeks
conditionally granted the defense request for
a  delay  of   the trial. (The condition  was
that  the parties would agree to take a video
deposition  of Harriss daughter,  A.H.,  with
the  understanding that this deposition would
be admissible at Harriss trial.)
          Three  days later, on December  30,
2004,  the  parties  came  to  court  for   a
hearing,  and  Judge Weeks explicitly  warned
the defense attorney:

     The  Court:   I  will  order  that  [the
defense] provide [the required disclosure] 30
days  prior to [the trial date].  ...  I will
not  allow  experts to testify  about  things
that are not provided to opposing parties  in
expert reports.  So, if there is no report by
30  days prior [to trial], [that expert] will
not  be testifying. And [if] things [are] not
included in the reports, [those experts] wont
be  testifying about those things  [that  are
not] in the reports.  Thats the way it is.

          Harriss trial was recalendared  for
May 2, 2005.
          On  April 6, 2005, defense attorney
Hedland filed another notice that he intended
to  have Dr. Ophoven give expert testimony at
Harriss   trial.   In  this  notice,  Hedland
declared  that Dr. Ophoven did not  create  a
written report.  However, Hedland offered the
following  description of  Ophovens  proposed
testimony:

Dr.  Ophoven  will  testify that  prematurely
born  babies  are  at an increased  risk  for
injury  during normal care because  they  are
weaker  physically, and that babies  who  are
immobilized  after birth are  at  a  terrible
risk  for  abnormal bone strength.  She  will
testify  that,  based on her  review  of  the
medical reports, the alleged victim here  was
released from the hospital too quickly  after
birth.  [Dr. Ophoven] will also testify  that
a  child  who presents with seizures  is  not
necessarily suffering from traumatic  injury.
She  will  testify that estimating  dates  of
[bone]  fractures from x-rays is  an  inexact
science.   She will testify that  babies  can
asphyxiate  from treatment for seizures,  and
that  seizures that last too long can  result
in cerebral edema.

          After  the  defense attorney  filed
this  notice, Harriss trial was delayed again
(because  the prosecutor assigned to  Harriss
case  was  handling another  trial  that  was
still  in  progress on May 2nd).  This  time,
Harriss  trial was rescheduled for  September
12, 2005.
          On  August 8, 2005, Hedland sent  a
memo  to  the prosecutor in which he  offered
another  description of Dr. Ophovens proposed
testimony.  For purposes of later discussion,
the  most  important aspect of this  memo  is
that it contains many medical assertions  and
conclusions,  but  it  provides  very  little
explanation  of the doctors bases  for  these
assertions and conclusions.  Here is the text
of the memo:

Dr.  Ophoven is a seizure specialist.   There
are  many kinds of seizures and many  causes.
[The  baby in this case] had an unusual  kind
of seizure.

[The  baby] did not receive proper care until
he   arrived   at  Harborview  [hospital   in
Seattle].  [The] ER admission order says that
he  [was]  diagnosed with status  epilepticus
and   [was]   suspected  of  having   sepsis.
Untreated  status epilepticus for a half-hour
or more constitutes a medical emergency.

These [sic] are many possible causes of  [the
babys]  seizures.  [The baby] shows no  brain
trauma  of  any kind.  There is  no  evidence
that [the baby] suffocated.

[The  babys]  rib fractures and his  seizures
are  not  related.  Bone scans  do  not  tell
[the] same story as x-rays.

The [other] doctors grand jury testimony that
premature babies do not have weaker bones  is
absolutely    not   true.    Osteopenia    of
prematurity   is   well  documented.    Other
factors  present here increase  the  risk  of
accidental  fractures.   [During  the]  first
year  of  life,  many things  make  a  person
susceptible  to  seizures.  Children  in  the
NICU  [i.e., the neonatal ICU] get  fractured
arms, legs, and ribs just through daily care,
because of the weakness of their bones.

Some  things that could cause fractured  ribs
include burping a baby, rolling over the baby
accidentally while sleeping in the same  bed,
falling  off  of a couch, the  actions  of  a
babysitter.    Additionally,  there   is   no
evidence  of inflicted injury in  either  the
case  of the [babys] seizures or the case  of
the [babys] broken arm.

          On August 29, 2005 (i.e., about two
weeks  before  trial), the  prosecutor  again
filed  a motion to preclude the defense  from
calling Ophoven as an expert.
          In   this  motion,  the  prosecutor
noted  that he still had received  no  report
from    Dr.    Ophoven.     The    prosecutor
acknowledged  receiving  Hedlands   memo   of
August 8th, but the prosecutor described that
memo  as very uninformative because it failed
to  provide  adequate notice of the  opinions
... that Dr. Ophoven w[ould] testify to[,] or
the basis for those opinions.  The prosecutor
also  noted that, because  Hedlands memo  was
not  Ophovens report, Ophoven [was] not bound
by  anything in [that memo,] and Mr.  Hedland
is not available as a witness [himself].
          The    prosecutor   asserted   that
Hedlands   handling  of   this   matter    in
particular,  his  failure ...  to  provide  a
report  by  Dr.  Ophoven, after  obtaining  a
continuance  for  that very  purpose   was  a
tactical gambit designed to prevent the State
from having an effective opportunity to cross-
examine the expert.
          Two  days  later (on August  31st),
Hedland  filed  an opposition to  the  States
motion.  The majority of this opposition  was
devoted to arguing that the State had  failed
to  live up to its own obligation to disclose
expert  testimony. However, one paragraph  of
the  opposition  did address the  prosecutors
claim   that   there  had   been   inadequate
disclosure    of   Dr.   Ophovens    proposed
testimony:

     Mr.   Harris  has  filed  [two]  written
descriptions of ... Dr. Ophoven[s testimony].
The prosecutor, in fact, attached them to his
motion.   Mr.  Harris also long ago  provided
the  [doctors]  C.V.[.]   Not  only  has  Mr.
Harris  complied  with the rules,  [but]  the
state additionally has the present ability to
gather  any additional information  from  Dr.
Ophoven  ...  ,  and it has yet  the  further
ability  to  call/consult the myriad  doctors
referenced in [the] medical records [in  this
case].  And the state has also cross-examined
Dr. Ophoven at least twice recently [in other
cases] in Juneau[,] and is familiar with her.
Finally,   her   publications   are   readily
available.

          On  Friday, September 9, 2005, with
Harriss  trial  set  to begin  the  following
Monday,   Judge   Weeks   issued   an   order
precluding Dr. Ophoven from testifying.
          Judge  Weeks  began by noting  that
the  omnibus hearing order issued at the very
beginning  of  Harriss  case  required   that
expert reports be provided by the defense  30
days before trial.
          Judge Weeks then noted that one  of
the  purposes  of Criminal  Rule  16  was  to
require  [a]  meaningful exchange  of  expert
information between the parties.  Judge Weeks
further noted that the superior court  judges
of  Juneau  had  traditionally enforced  this
rule  firmly.   The  judge  reminded  Hedland
that,  in  his  last jury trial before  Judge
Weeks,  the State was precluded from offering
an  expert  on domestic violence  because  no
report   had  been  submitted,  even   though
everyone knew what the witness would say.
          Judge  Weeks next reminded  Hedland
that,  the  previous  December,  Hedland  had
sought a continuance of Harriss trial for the
very  purpose of giving Dr. Ophoven a  better
opportunity  to prepare as an expert  witness
and  that, in his pleading, Hedland had  told
the  court that, as of December 17, 2004, all
medical  records  and  other  documents  [had
been] sent to ... Dr. Ophoven.
          The judge noted that he had delayed
the  trial so that Dr. Ophoven would  have  a
chance to testify for the defense.  The judge
also   noted   that,  when  he  granted   the
continuance, he expressly warned Hedland that
the  defense would have to provide the  State
with  a report for each and every one of  its
expert witnesses, and that these reports  had
to  be  filed 30 days before trial.  And  the
judge quoted what he had said at that hearing
on  December 30, 2004:  if there is no report
by  30  days prior [to trial], [that  expert]
will not be testifying.
          Judge Weeks then concluded:

     Trial  starts on Monday.   There  is  no
report  from Dr. Ophoven.  The only  apparent
reason  why  a  report is not available  nine
months  later [i.e., nine months after Harris
sought  a delay of the trial for the  express
purpose  of procuring Dr. Ophovens testimony]
is  the  attempt to obtain an unfair tactical
advantage.   The  court finds that  [granting
another]   continuance  is  not  an  adequate
remedy.  The incidents [being litigated]  are
alleged  to  have occurred nearly  two  years
ago[,]  and  the  case is over  a  year  old.
Numerous  other experts have been noticed  to
testify.

     The  motion  to  preclude  Dr.  Ophovens
testimony is granted on this record.

          Later  that same day, Hedland filed
a  motion  asking Judge Weeks to  reconsider.
In  that  motion, Hedland argued  that,  even
though  he had not provided the State with  a
written   report   from   Dr.   Ophoven,   he
nevertheless had complied with Rule  16(c)(4)
because he had filed two written descriptions
of Dr. Ophovens proposed testimony.  (Hedland
was  apparently referring to the notice dated
April 6, 2005 (quoted above), and to the memo
addressed  to the prosecutor dated August  8,
2005 (also quoted above).)
          Hedland  told Judge Weeks that,  to
the  extent  that  [the  description  of  the
proposed  testimony] needs to  be  signed  by
Dr. Ophoven, that can be readily accomplished
[now].
          In  the alternative, Hedland argued
that  his  client,  Harris,  should  not   be
penalized  because  of  Hedlands  failure  to
comply  with  Rule 16(c)(4) and Judge  Weekss
previous  orders.   Hedland contended  Harris
had   a   right   to  present  Dr.   Ophovens
testimony,  and that it would be improper  to
bar Harris from presenting this testimony  as
a result of Hedlands errors as counsel.
          On the morning of Monday, September
12th   that  is,  on the first  business  day
after  Judge Weeks issued his order,  and  on
the  morning when jury selection for  Harriss
trial  was  scheduled  to  commence   Hedland
filed Dr. Ophovens written report.
          This  report (which bears the  date
of   September  12th)  details  Dr.  Ophovens
findings and opinions in two-and-a-half pages
of  single-spaced text, using  a  very  small
font.  The font used in the doctors report is
either 9- or 10-point, and there are 60 lines
of  text  to the page (not counting the  line
that  bears the footer and the page  number).
By  comparison, the font used in this opinion
is  13.5-point, and there are 23 or 24  lines
of   text  to  the  page.   If  the  text  of
Dr.  Ophovens report were formatted like  the
text  of  this opinion, the doctors  findings
and opinions would occupy approximately seven
pages.
          That  afternoon, Judge Weeks  heard
argument on the defense attorneys request for
reconsideration of his order  precluding  Dr.
Ophovens  testimony.  The prosecutor  pointed
out that Judge Weeks had been very clear that
no  expert  would be allowed to  testify  for
either  side unless that experts  report  was
provided   to  the  other  side  within   the
deadlines set by the judge.
          The  prosecutor also pointed to the
fact that Dr. Ophoven had generated a lengthy
and  detailed report so quickly  after  Judge
Weeks   issued   his  order  precluding   her
testimony.  The prosecutor argued  that  this
show[ed]  how  easy  it [was  all  along]  to
produce a report from th[is] witness.
          Finally, the prosecutor argued that
the  State would be prejudiced if Dr. Ophoven
were allowed to testify, because it would  be
impossible for the prosecutor to conduct  the
trial   and,   at   the   same   time,    get
knowledgeable  about all those  issues  [that
the  doctor] appears to raise in that  report
and prepare rebuttal [on those issues].
          Judge Weeks and the prosecutor then
discussed  a  number of medical  issues  that
appeared  to have been raised for  the  first
time in Dr. Ophovens report.
          When  Judge Weeks asked Hedland  to
respond,   Hedland  declared  that   he   had
consulted  another  attorney  in  the  Public
Defender  Agency, and that this attorney  had
assured  him  that the two documents  he  had
already  produced  the notice dated April  6,
2005,  and  the memo to the prosecutor  dated
August  8,  2005  were sufficient to  satisfy
his  duty of disclosure.  Hedland told  Judge
Weeks,  I  thought a proffer from [a]  lawyer
was an expert report.  (Emphasis added)
          Hedland also declared that [he had]
learned  since  then that [Judge  Weeks]  had
said,  on this case specifically, that  there
[was] supposed to be a written report by  the
doctor.  (Emphasis added)
          (It   appears,   from   this   last
statement, that Hedland was asserting that he
only  learned of Judge Weekss order after  he
submitted the notice in April 2005 and  wrote
the  memo  to the prosecutor in August  2005.
If  this  is  what  Mr.  Hedland  meant,  his
assertion  is  inexplicably at variance  with
the  facts.  Hedland was present in court  on
December  30,  2004, when Judge Weeks  orally
told the parties that no expert witness would
be allowed to testify in this case unless the
experts  written report was provided  to  the
other side.)
          Finally,  Hedland argued  that  any
sanction  ... should be leveled  against  the
lawyer  (that  is,  against himself)  because
preclusion  of  Dr. Ophovens testimony  would
deprive Harris of his right to a fair trial.
          At   the   end   of   the   parties
arguments, Judge Weeks took the matter  under
advisement   until  the  following   morning.
However, before court adjourned, Judge  Weeks
asked  the  prosecutor to  come  prepared  to
discuss  whether  the State  would  still  be
prejudiced  if  (1) the judge  precluded  Dr.
Ophoven from testifying about any matter that
was  not contained in Hedlands memorandum  of
August  8th to the prosecutor; (2) the  judge
allowed the prosecutor to examine the  States
own  experts  about the matters contained  in
Hedlands  memorandum  (in  other  words,  the
prosecutor  would not have to  wait  for  the
defense   to  present  testimony   on   those
matters,  and  then  have  to  re-summon  his
expert witnesses to offer rebuttal); and  (3)
the  judge  ordered the defense to  make  Dr.
Ophoven   available   for   a   pre-testimony
deposition sometime during the week.
          When the parties assembled in court
the  next  morning, the prosecutor  indicated
that  he was agreeable to going forward under
the  conditions that Judge Weeks had outlined
with  the added proviso that, if he found  it
necessary to present rebuttal testimony  from
his   out-of-state  expert   witnesses,   the
defense   would  agree  that  this   rebuttal
testimony could be presented telephonically.
          At  this point, Hedland demanded to
know  the  precise  justification  for  these
proposed  limits  on the  defense  case,  and
these  proposed accommodations to the  State.
Judge  Weekss response is the central factual
ruling  in  this case.  Here  is  what  Judge
Weeks said:

     The Court:  Heres what Ill find  and  if
you need more, Ill try to do more:

     I  believe  that your notice  under  the
rule was inadequate.  I dont believe that  it
[disclosed]  the  basis  for  [the   doctors]
opinion,  and I dont believe that it provided
[all  of] the opinions.  I [further]  believe
that  [your notice] was in violation of  this
Courts order.

     [In addition,] I believe that [this] was
an  attempt  [on  your  part]  to  obtain   a
tactical advantage during trial.

     I   think   that  Dr.  Ophovens   [late-
provided]  report significantly substantiates
that  finding.  I believe that the detail  of
her  report makes it clear that the State was
going to be sandbagged.  ...

     I  believe that [this course of conduct]
justifies  not  allowing  [Dr.  Ophoven]   to
testify at all.  [But] I [have] tried to make
these limited accommodations in order to make
sure  that the clients [i.e., Harris and  his
co-defendant  Renton] are  not  substantially
damaged by [your] attempts to obtain tactical
advantage.
     .  .  .

     I [further] believe that the State would
be  substantially prejudiced if [Dr. Ophoven]
were  allowed to testify to those  things  in
that  report  [that arent  included  in  your
previous memorandum].

     Defense  Attorney:   And  the  Court  is
making  a finding that a continuance isnt  an
adequate remedy for the State?

     The  Court:  I have [already] made  that
[finding].

          Following  more discussion  by  the
parties,  Judge Weeks issued an  order  along
the   lines   outlined   in   the   preceding
discussions.   That is, (1) the  judge  ruled
that  Dr.  Ophoven would not  be  allowed  to
testify   about  any  matter  that  was   not
contained in Hedlands memo to the prosecutor;
(2)  the  judge ordered the defense  to  make
Ophoven  available  for a deposition  by  the
close of business the following day; (3)  the
judge  ruled  that  the prosecutor  would  be
allowed  to  examine the States  own  experts
about   the  matters  contained  in  Hedlands
notice  and  letter  on  direct  examination,
without  having  to wait for the  defense  to
present  testimony on those matters and  then
re-summon  the  expert  witnesses  to   offer
rebuttal; and (4) the judge ruled that if the
State   needed  to  present  expert  rebuttal
testimony   on   the  matters  contained   in
Hedlands memo, that testimony could be  given
telephonically.  The judge later reduced this
order to writing.

Harriss  four  arguments  as to  why  the  trial  judge
committed  error when he restricted the  scope  of  the
evidence that Harriss attorney could introduce at trial

          On   appeal,  Harris  makes  four   different
arguments as to why Judge Weeks committed error when he
restricted Dr. Ophovens trial testimony to the  matters
revealed   in   Hedlands  August  2005  memo   to   the
prosecutor.   (Harris  does  not  challenge  the  other
provisions of Judge Weekss order.)
          The  first  of these arguments is that  Judge
Weeks  actually  committed  error  nine  months  before
Harriss trial  in December 2004, when Judge Weeks  told
the  parties that neither of them would be  allowed  to
present  expert  testimony unless  they  produced  that
experts report to the opposing attorney within the time
limits set forth in the omnibus hearing order (i.e., 45
days  before  trial for the State, and 30  days  before
trial for the defense).
          Harriss  other  three  arguments  are  direct
attacks  on Judge Weekss ruling of September  12,  2005
i.e.,  the  ruling issued on the first  day  of  trial,
which restricted the scope of Dr. Ophovens testimony.
          Harriss  second argument is that, when  Judge
Weeks  restricted the scope of Dr. Ophovens  testimony,
the judge violated Alaska law by imposing this type  of
sanction  (i.e., exclusion or restriction of  evidence)
when  there was no proof that the defense had willfully
violated its pre-trial disclosure obligations.
          Harriss  third  argument  is  that,  even  if
Hedland  willfully violated his disclosure obligations,
it  was  improper  for  Judge  Weeks  to  restrict  Dr.
Ophovens  testimony   because,  according  to   Harris,
lesser sanctions would have been sufficient to cure the
problem.
          Fourth  and  finally, Harris  argues  in  the
alternative  that,  to the extent  current  Alaska  law
supports   Judge   Weekss   ruling,   that    law    is
unconstitutional.  Harris contends that, no matter  how
egregiously  a  defense  attorney  might  violate   the
disclosure obligations imposed by Criminal Rule  16(c),
and  no matter how much prejudice that violation  might
cause  to  the government and to the judicial  process,
the   Alaska   Constitution  forbids   a   judge   from
restricting  a  criminal  defendants  presentation   of
evidence  as  a  sanction for the violation,  at  least
absent proof that the defendant was personally involved
in the discovery violation.

Harriss  argument that Judge Weekss order  of  December
30,  2004 was, in effect, a local rule of practice  and
that this local rule was unlawful because it conflicted
with the provisions of Criminal Rule 16(c)(4)

          In Romero v. Alaska Financial Services, Inc.,
873  P.2d 1278, 1280 (Alaska 1994), the Alaska  Supreme
Court  declared  that trial courts are prohibited  from
adopting  local practices that conflict with the  rules
codified in the Alaska Rules of Court.  Harris contends
that  Judge  Weeks  violated this  principle  when,  on
December  30,  2004, the judge ordered that  no  expert
witness would be allowed to testify in this case unless
the  proponent  of the experts testimony  provided  the
experts report to the other side.
          Harris  did  not  raise this claim  of  error
during the trial court proceedings.  In fact, he  never
challenged Judge Weekss authority to issue the order of
December  30th  on  this or any  other  ground.   Thus,
Harris failed to preserve this issue for appeal.   And,
to  the extent that Harris is nevertheless entitled  to
raise this claim as a matter of plain error, we find no
plain error.
          Criminal  Rule 16(c)(4) declares  that,  with
respect  to any expert witnesses that the defendant  is
likely to call at trial,
     
[t]he defendant shall ... make available  for
inspection and copying any reports or written
statements of these experts.  For  each  such
expert  witness,  the  defendant  shall  also
furnish to the prosecutor a curriculum  vitae
and a written description of the substance of
the  proposed  testimony of the  expert,  the
experts opinion, and the underlying basis  of
that opinion.

          From the wording of this portion of
Rule  16(c)(4),  it  appears  that  the  rule
requires the defense to disclose two  things.
First,  if the expert has produced any report
or  written statement, that report or written
statement   must   be   disclosed.    Second,
regardless of whether the expert has produced
a  report  or written statement, the  defense
must  also  furnish ... a written description
of the substance of the proposed testimony of
the  expert,  the  experts opinion,  and  the
underlying basis of that opinion.   (Emphasis
added)
          To   our   knowledge,   no   Alaska
appellate  case has presented  the  issue  of
whether  a  defense attorney is  required  to
separately  provide a written description  of
the substance of the expert witnesss proposed
testimony (including the experts opinion  and
the  underlying  basis for that  opinion)  if
that  expert witness has already furnished  a
written  report  that fully  describes  these
same  things.  For present purposes, we  will
assume that this is an unintended redundancy.
          But even employing this assumption,
Rule  16(c)(4) is clearly designed to require
defendants to disclose the substance  of  the
experts proposed testimony one way or another
and not just the basic subject matter of that
testimony, but the experts specific  opinions
and  conclusions, as well as  the  underlying
bases  of  those  opinions  and  conclusions.
This  disclosure  may  take  the  form  of  a
written  report or statement from the  expert
witness,  or  a  written description  of  the
proposed  testimony by the defense  attorney,
or  (conceivably) both.  But  the  disclosure
must be made.
          Here,  Harriss attorney  failed  to
make  the required disclosure.  Judge  Weekss
decision  to limit the scope of Dr.  Ophovens
testimony  was not based on Hedlands  failure
to follow the particular procedures specified
in  the discovery order  as, for instance, if
Hedland  had  filed his own complete  written
description  of Dr. Ophovens conclusions  and
the  bases for those conclusions, instead  of
complying with Judge Weekss directive to file
a   written  report  from  Ophoven   herself.
Rather, Judge Weekss ruling was based on  the
fact   that  Hedland  flouted  his  discovery
order.  The judge restricted the scope of Dr.
Ophovens  testimony  because  Hedland   never
disclosed  the full substance of the  doctors
proposed testimony before trial.
          (As     explained    above,    full
disclosure   was  not  made   until   Hedland
submitted the doctors written report  on  the
first morning of trial.)
          Thus,  for  purposes  of  resolving
Harriss case, it is irrelevant whether it  is
consistent or inconsistent with Rule 16(c)(4)
for a trial judge to insist on an exchange of
written  reports from the experts themselves,
rather   than   allowing  the  attorneys   to
exchange  their  own written descriptions  of
the  experts conclusions and reasoning.   And
because  this  issue  is  irrelevant  to  the
resolution  of  Harriss  case,  Judge  Weekss
order of December 30, 2004 can not constitute
plain   error.    Proper  or  improper,   the
issuance  of  this order did not  affect  the
outcome of the proceedings.  Rather, Hedlands
misconduct  was  in failing to  disclose  the
full   substance  of  Dr.  Ophovens  proposed
testimony in any form.

Harriss argument that Alaska law forbids a judge from
excluding  evidence as a sanction for a  pre-trial
discovery  violation  unless  the  violation   was
willful

          Harris  next argues that Alaska law does  not
allow  a  judge  to restrict or exclude evidence  as  a
sanction   for  a  discovery  violation   unless   that
violation was deliberate and unequivocal.  According to
Harris,  this  sanction can be imposed  only  when  the
offending  counsel  figuratively thumbed  his  nose  at
[the] applicable requirements of pretrial discovery and
demonstrated  deliberate ... disregard  of  the  courts
authority.
          Harris  contends  that Judge  Weeks  violated
this  tenet of Alaska law when he restricted the  scope
of  Dr.  Ophovens testimony as a sanction for  Hedlands
violation   of  his  pre-trial  disclosure  obligations
because,  according to Harris, there was no proof  that
Hedland deliberately violated these obligations.
          Harriss  terminology is somewhat at  variance
with  the language employed in the Alaska cases on this
subject,  but  the principle he relies on is  basically
correct.   The  Alaska  Supreme  Court  has  repeatedly
declared  that even when there is a clear violation  of
the  discovery  rules,  a judge  should  not  use  that
discovery  violation as a basis for granting  judgement
to the non-offending party, or as a basis for excluding
crucial evidence (i.e., evidence so important that  its
exclusion  will essentially decide a central  issue  in
the  litigation  one  way  or the  other),  unless  the
violation was willful.
          In  this  context, a violation is not willful
if  it arises from a mistaken but good-faith resistance
to the discovery obligation, or if the party was unable
to  comply  with the discovery obligation in  a  timely
manner,  or  if  the  violation  consisted  merely   of
inordinate  delay  in  complying with  the  obligation.
Rather, a violation is willful for these purposes  only
if   it  was  done  with  conscious  intent  to  impede
discovery.  Maines v. Kenworth Alaska, Inc.,  155  P.3d
318, 325 (Alaska 2007); Lee v. State, 141 P.3d 342, 349
(Alaska  2006); Honda Motor Co., Ltd. v.  Salzman,  751
P.2d 489, 492-93 (Alaska 1988).
          However, when a party fails to comply with  a
discovery  obligation,  the  burden  of  proving   non-
willfulness is on the party who failed to comply.5  The
rationale for placing the burden of persuasion  on  the
non-complying  party is that [t]he  reasons  for  [the]
noncompliance   are   facts  peculiarly   within   [the
offending partys] knowledge.  Honda Motor Co., 751 P.2d
at 492.
          In  Harriss  brief to this Court,  he  argues
that Hedlands failure to disclose the substance of  Dr.
Ophovens intended testimony until the first morning  of
trial was not willful.
          Harris  points  out that,  when  Judge  Weeks
asked  Hedland to explain his conduct, Hedland asserted
that (1) he honestly believed that he had complied with
his  discovery obligation by sending the notice to  the
court  in  April  2005, followed by  his  memo  to  the
prosecutor in August 2005; and that (2) he checked with
his  supervisor  in  the Public  Defender  Agency,  who
assured  him that these actions constituted  compliance
with  Rule  16(c)(4).  In addition, Harris  points  out
that  Hedland  did,  in  fact, ultimately  provide  Dr.
Ophovens written report to the State.
          The  problem with this argument is that Judge
Weeks  heard Hedlands protestations of good faith,  and
he rejected them.
          We quoted Judge Weekss ruling earlier in this
opinion.  As we explained, Judge Weeks expressly  found
that  Hedlands  pre-trial description of  Dr.  Ophovens
proposed testimony violated both Criminal Rule 16(c)(4)
and  Judge  Weekss order regarding pre-trial disclosure
of  expert  witnesses  because Hedland  did  not  fully
disclose the doctors opinions, nor did he disclose  the
bases for those opinions.
          Judge  Weeks  further found  that  this  non-
disclosure was an attempt [on Hedlands part] to  obtain
a tactical advantage during trial.  The judge concluded
that  Hedlands  sudden  disclosure  of  a  lengthy  and
detailed  report from Dr. Ophoven on the first  morning
of  trial  significantly substantiate[d] the conclusion
that Hedland had been acting in bad faith.  Judge Weeks
declared,  I believe that the detail of [Dr.  Ophovens]
report  makes it clear that the State was going  to  be
sandbagged.   In  other words, Judge Weeks  found  that
Hedland purposely withheld Dr. Ophovens report with the
intent  to defeat the States right of discovery and  to
unlawfully  put the State in a position of disadvantage
at trial.
          We   are   obliged  to  uphold  Judge  Weekss
findings  of historical fact  i.e., the judges findings
regarding  Hedlands  intentions  and  motives    unless
Harris  shows  these findings to be clearly  erroneous.
He has not done so.
          Because  Judge Weeks found that  Hedland  was
acting  in  bad faith  i.e., acting with the  conscious
intent  to  impede pre-trial discovery  the  judge  was
entitled  to  consider  restriction  or  exclusion   of
evidence as a sanction for the discovery violation.
Harriss argument that, even if Hedland acted willfully,
Judge   Weeks  was  still  required  to  impose  lesser
sanctions  because  lesser sanctions  would  have  been
sufficient

          Harriss  third  argument  is  that,  even  if
Hedland  willfully violated his obligation to  disclose
the  full substance of Dr. Ophovens intended testimony,
it  was  still  improper for Judge  Weeks  to  restrict
Ophovens  testimony   because,  according  to   Harris,
lesser sanctions would have been sufficient to cure the
prejudice  to the State and to ensure future compliance
with pre-trial disclosure obligations.
          The  Alaska Supreme Court has said that, even
when  a party has willfully violated their duty of pre-
trial  disclosure, the trial judge should not impose  a
sanction  that  has  the  effect  of  establishing   or
dismissing  a  claim or defense unless  the  judge  has
first   considered  whether  lesser   sanctions   would
adequately  cure the prejudice to the other  party  and
ensure  compliance  with  the discovery  rules  in  the
future.6   This same limitation applies to orders  that
preclude  an  expert  witness from testifying,  if  the
preclusion   of   the  experts  testimony   effectively
determin[es] a central issue in the litigation.7
          Regarding the first prong of this test (i.e.,
whether a lesser sanction would be adequate to cure the
prejudice to the other party), the Alaska Supreme Court
has  explained that the primary question to be answered
is  whether it would be fair to force the non-offending
party  to  litigate the merits of the  claim  or  issue
involved without disclosure of the evidence [that]  the
court  ...  ordered the [offending] party  to  produce.
Lee,  141  P.3d  at  350;  DeNardo  v.  ABC  Inc.   RVs
Motorhomes, 51 P.3d 919, 926 (Alaska 2002).
          In  other words, if the claim or issue  could
still  be  fairly litigated even though  the  offending
party purposely withheld relevant information, then the
trial  judge  is  not  allowed  to  use  preclusion  or
restriction  of this evidence as a punishment  for  the
discovery violation.  Lee, 141 P.3d at 350; DeNardo, 51
P.3d at 926.  As the supreme court stated in Johnson v.
State,  577 P.2d 230, 234 (Alaska 1978), In the absence
of ... prejudice to a party [that is] likely to have  a
substantial effect on the outcome of the case,  failure
of  counsel to comply with discovery orders should  not
be  utilized  as  a basis for ultimate  disposition  of
litigation.
          On the other hand, if the offending party has
purposely withheld information that is central  to  the
          litigation of a claim or issue, so that the non-
offending partys lack of opportunity to prepare to meet
this  information  will  substantially  prejudice   the
partys  ability to litigate the claim or issue, then  a
trial  judge has the authority to restrict or  preclude
the  presentation of the unlawfully withheld  evidence.
Lee, 141 P.3d at 350-51.
          Regarding  the  second  prong  of  this  test
(i.e.,  ensuring  compliance with pre-trial  disclosure
obligations  in  the  future), the  supreme  court  has
focused  primarily on whether the offending  party  has
displayed a pattern of non-disclosure that needs to  be
deterred.8
          In  Lee,  for  example, the State  brought  a
consumer fraud case against the defendant, who  claimed
to  be  marketing  new technologies  that  would  allow
people  to generate electrical power for little  or  no
money.   Lee  (who was represented by  counsel  in  the
trial  court,  see  141 P.3d at 353)  refused  to  obey
discovery  orders  that directed  him  to  explain  his
products  and  technologies.   Without  this  pre-trial
disclosure, the State had little information about Lee,
his   businesses,  his  technologies,  and   his   free
electricity program.  Id. at 350.
          In  light of Lees willful failure to  provide
pre-trial  disclosure  of this information,  the  trial
judge  entered judgement against Lee on  the  issue  of
whether  he  had  committed  consumer  fraud   and  the
supreme court upheld the trial judges action.
          The  supreme court declared that, even in the
face of willful discovery violations, a trial judge may
not   issue  liability-establishing  sanctions  without
first  exploring possible and meaningful  alternatives.
Id.  at 351.  But the supreme court concluded that  the
trial  judge  had  not abused her discretion  when  she
decided that there were no viable alternatives in  Lees
case.  Id.
          The  supreme court noted that the trial judge
considered   imposing  fees  on  Lee,  and   considered
delaying  the  trial, but found those sanctions  to  be
inappropriate  because  they  would  not  deter  future
discovery  violations,  or  they  would  prejudice  the
State.   Id.  The supreme court further noted that  the
trial    judge   had   already   given   Lee   numerous
opportunities  to  comply with the pre-trial  discovery
order.  Id.
          Quoting the trial judges decision  a decision
which the supreme court called a model analysis of  the
pertinent  factors9   the supreme  court  approved  the
trial   judges  conclusion  that,  [while  a]  monetary
sanction c[ould] compensate the State for its attorneys
fees,  such  a  sanction could not compensate  for  the
[States] inability to prepare its case for trial.  Lee,
141 P.3d at 354.
          As the supreme court explained,
     
          The state could not take the chance that
     Lee,   having  failed  to  provide   adequate
     discovery   responses,   would   attempt   to
     demonstrate    [the    validity    of]    his
     technologies  and  products  at  trial.    We
     assume   that  the  science  underlying   the
     technologies  and products Lee advertised  is
     sufficiently  complex that, without  pretrial
     discovery,   the   state   would   have   had
     inadequate time to examine and understand the
     scientific   principles  pertinent   to   any
     demonstration,  and consequently  might  have
     been   unable   to   dispute   whether    the
     demonstration  was  valid or  the  principles
     were   invalid.   For  these   reasons,   the
     sanction   imposed   accepting  the  [States]
     alleg[ation  of consumer fraud]  as  admitted
     was  sufficiently tailored to  the  discovery
     violation.
     
     Lee, 141 P.3d at 350-51.
               The supreme court also approved the
     trial  judges conclusion that a delay in  the
     trial date to allow another opportunity  [for
     Lee]    to    complete   discovery    [would]
     prejudice[]  the  State, not  the  Defendant.
     Lee, 141 P.3d at 354.
          Given   these  circumstances,   the
supreme court concluded that the trial  judge
had   not  abused  her  discretion  when  she
entered judgement against Lee on the issue of
whether he had committed fraud.
          The    supreme    court    employed
essentially  the same test and analysis  when
the court upheld the imposition of litigation-
ending sanctions in Honda Motor Co., Ltd.  v.
Salzman, 751 P.2d 489 (Alaska 1988):

     The  [record]  shows beyond  doubt  that
[the  trial judge] gave Hondas situation very
careful consideration [before imposing such a
severe  sanction].   [The  judge]  had  given
Honda  several  warnings, oral  and  written,
which Honda failed to heed.  She had extended
deadlines,  imposed  less drastic  sanctions,
and endured Hondas violations of court orders
until  it  became evident that this  ultimate
sanction   was   necessary  and  appropriate.
Hondas  contention that it  fully  cooperated
and made extraordinary efforts to comply with
discovery  is  simply  contradicted  by   the
record.    Although   Honda   produced   some
documents and provided for the depositions of
two  Japanese  witnesses, the  fact  is  that
every    single   court   order    compelling
production  was violated, and the  violations
simply  were  not  adequately  explained   by
Honda.   We  cannot say that the trial  court
abused   its  discretion  in  imposing   this
sanction.

751 P.2d at 493.
          Harris  argues  that,  even  though
this  may  be a proper method of analysis  in
civil  cases,  the policies are different  in
criminal cases  especially when a trial judge
is    considering   sanctions   against   the
defendant.  Harris asserts that, because of a
defendants  constitutional right to  subpoena
favorable witnesses and affirmatively present
a  defense case, a trial judge should  rarely
be able to order preclusion or restriction of
defense   evidence   under   Criminal    Rule
16(c)(4), even when the defense has willfully
violated the discovery rules.
          It is true that, with one exception
(Johnson   v.   State),  the  supreme   court
decisions we have discussed here arose in the
context  of  civil  litigation.   We  further
acknowledge that in State v. Lewis, 632  P.2d
547  (Alaska  App.  1981)  this  Courts  most
comprehensive  discussion of  this  issue  to
date    we   declared  that   preclusion   of
significant evidence in criminal cases was  a
disfavored  remedy that should  be  used  ...
only in rare situations.  Id. at 550.
          However, Lewis was decided in 1981.
At  that  time, the sole portion of  Criminal
Rule  16  that addressed potential  sanctions
and  remedies  for discovery  violations  was
subsection (e):

     (1)   Failure  to Comply with  Discovery
Rule  or  Order.  If at any time  during  the
course  of  the proceedings it is brought  to
the  attention of the court that a party  has
failed to comply with an applicable discovery
rule or an order issued pursuant thereto, the
court  may  order [that] party to permit  the
discovery  of  material and  information  not
previously  disclosed[,] or enter such  other
order   as   it   deems   just   under    the
circumstances.

     (2)     Willful   Violations.    Willful
violation   by   counsel  of  an   applicable
discovery  rule  or an order issued  pursuant
thereto  may  subject counsel to  appropriate
sanctions by the court.

          As  this Court noted in Lewis,  the
language of subsection (e)(1)  in particular,
the  clause or enter such other order as [the
court]  deems  just  under the  circumstances
tracks   the  language  of  the  1978  Second
Edition  of  the  American  Bar  Associations
Standards Relating to Discovery and Procedure
Before   Trial,   11-4.7(a)(iii).    In   the
Commentary  that  accompanied  Standard   11-
4.7(a),  the ABA drafters declared that  this
phrase   [was]   not  intended   to   endorse
sanctions  that  exclude  from  evidence  any
discoverable,   but  [as  yet]  nondisclosed,
items.  Id., page 1167.10
          But  Alaska  law has changed  since
Lewis  was  decided.  In February  1995,  the
Alaska  Supreme Court amended the  provisions
of  Criminal Rule 16(b) and (c) dealing  with
expert  testimony.  See Supreme  Court  Order
No. 1191 (effective July 15, 1995).
          The   pre-1995  provisions  dealing
with   expert  testimony   Rule  16(b)(1)(iv)
(government   experts)  and   Rule   16(c)(4)
(defense  experts)  declared  that  both  the
prosecution and the defense had the  duty  to
disclose  the  reports or statements  of  its
experts  to  the other side.  But these  pre-
1995   provisions  said  nothing  about   the
potential sanctions for violating this  duty.
Presumably, any failures to disclose proposed
expert  testimony would have been subject  to
the  types  of  sanctions discussed  in  Rule
16(e) and in the Lewis decision.
          But  under  the current (i.e.,  the
post-1995)  version  of  Rule  16,  the   two
provisions  dealing  with  expert   testimony
i.e.,  a  new  Rule  16(b)(1)(B)  (government
experts) and a revised Rule 16(c)(4) (defense
experts)    both   contain   language    that
explicitly  addresses the range of  sanctions
available  to  a  trial judge  when  a  party
violates  the duty of disclosure.  These  two
provisions now explicitly authorize exclusion
of  evidence  as  a  sanction  for  a  partys
failure  to make proper disclosure of  expert
testimony,  if the judge affirmatively  finds
that a continuance is not an adequate remedy:

Failure  to  provide timely disclosure  under
this rule shall entitle the [other party]  to
a  continuance.  If the court  finds  that  a
continuance  is not an adequate remedy  under
the  circumstances of the case, the court may
impose other sanctions, including prohibiting
[the  party]  from  calling  the  expert   at
trial[.]

          The  supreme  courts  enactment  of
these  amended provisions was, in  effect,  a
modification  or partial rescission  of  what
this  Court said in Lewis about the range  of
permissible    sanctions    for     discovery
violations.   Our statements on this  subject
in  Lewis were based on the language of  Rule
16  as it existed in 1981.  But the post-1995
version  of Rule 16 now explicitly authorizes
the  exclusion  of evidence  as  a  potential
sanction   for   this  particular   type   of
discovery violation  i.e., a violation of the
duty to disclose expert testimony.
          Certainly,       a       defendants
constitutional right to present a defense  is
a  weighty  consideration militating  against
any  sanction  that  precludes  or  restricts
defense  evidence.  But we  infer,  from  the
supreme courts amendment of Criminal Rule  16
in 1995, that the supreme court viewed expert
testimony  as an area where willful discovery
violations  might  more  readily  support   a
preclusion   or   restriction   of    defense
evidence.
          As  the supreme court indicated  in
Lee,  expert testimony is often complex,  and
its  jargon  and principles are often  beyond
the   ken  of  non-experts.   Thus,   it   is
particularly  difficult  for  an   unprepared
party  to  explain  or rebut  adverse  expert
testimony.  We also note that, in this  case,
Judge  Weeks declared that the preclusion  or
restriction  of  evidence  as  a   means   of
deterring  future  discovery  violations  was
important  because the Juneau superior  court
had  experienced repeated violations  of  the
rules    requiring   disclosure   of   expert
testimony  by  both prosecutors  and  defense
attorneys.    Judge   Weekss   concern    was
implicitly  grounded on  the  fact  that  the
majority  of criminal litigation is conducted
by  the  same small group of attorneys  (both
prosecutors and defense attorneys)  who  work
for,   or  under  contract  with,  government
agencies.
          There  are,  of course, significant
differences  between the civil  and  criminal
litigation processes.  Further, our  societys
interest in fair and full adjudication is  at
its  highest  when  someones  liberty  is  at
stake.  But the fact remains that our supreme
court  amended Criminal Rule 16 to  expressly
authorize preclusion of expert testimony as a
sanction   for  failures  to  disclose   this
information.   The supreme courts  action  is
clearly  premised on the idea that  exclusion
or   restriction  of  evidence  is  sometimes
justified,      despite     a      defendants
constitutional right to present a defense.
          Thus,   even  though  our   supreme
courts  decisions in civil cases may  not  be
controlling in all respects, these  cases  do
provide certain rules that a trial judge in a
criminal  case  should follow  when  deciding
whether  to  preclude  or  restrict  proposed
expert   testimony   under   Criminal   Rules
16(b)(1)(B) and 16(c)(4).
          First,  a judge should not consider
this sanction unless the judge finds that the
failure to disclose was willful  in the sense
that  (1) there was a conscious decision  not
to  disclose  the information, and  (2)  this
decision  did  not stem from a  mistaken  but
good-faith   objection   to   the   discovery
obligation,  but  rather  from  a   conscious
intent to impede discovery.
          Second,  even  when  the  discovery
violation  is  willful, a  judge  should  not
exclude  or  restrict  the  proposed   expert
testimony   unless  the  judge  affirmatively
finds  that  lesser  sanctions  (such  as   a
continuance) would not adequately remedy  the
situation.  On the question of what  remedies
are adequate, the judge must consider (1) the
degree  to  which  the  non-disclosure   will
prejudice the non-offending partys ability to
litigate the case, and (2) whether, given the
history of the case, lesser sanctions will be
sufficient  to ensure future compliance  with
discovery obligations.
          It  is possible that, because of  a
defendants constitutional right to present  a
defense, the weighing of these factors should
be  different when the offending party is the
defendant (as opposed to the government).  We
need  not  decide this issue in Harriss  case
because, given the facts of Harriss case, the
superior    courts    action    is    clearly
supportable.
          As we have just explained, Criminal
Rule  16(c)(4)  authorizes the  exclusion  or
restriction of evidence only when  the  judge
finds that the defense violation of the  duty
of  disclosure was willful (in the sense that
it  was  prompted  by a conscious  intent  to
impede  discovery), and only when  the  judge
finds  that  lesser  sanctions  (such  as   a
continuance) will not be adequate to (1) cure
the   prejudice  to  the  other   party   and
(2)  ensure  compliance  with  the  discovery
rules in the future.
          Judge  Weeks  found  that  Hedlands
violation  was willful, and that  finding  is
adequately supported by the record.
          Judge  Weeks also concluded that  a
further  continuance of Harriss  trial  would
not cure the prejudice to the State or ensure
compliance  with the discovery rules  in  the
future.
          With   respect  to  whether  lesser
sanctions would be adequate to ensure  future
compliance  with the discovery  rules,  Judge
Weeks  noted  that the defense  attorney  had
already  procured a lengthy delay of  Harriss
trial  for  the announced purpose  of  making
sure  that  Dr.  Ophoven would  have  a  fair
opportunity to study the medical records  and
formulate  her report  and then the  attorney
willfully withheld the report.  This behavior
suggested   that   simply  granting   another
continuance would not be sufficient to  deter
future violations.
          With    regard   to    whether    a
continuance would be an adequate  remedy  for
the  State,  Judge Weeks noted  that  Harriss
case  was already more than a year old.   The
judge  further noted the State  had  arranged
for many other witnesses to come to Juneau to
testify   witnesses  who  would  have  to  be
rescheduled  (and  who might  potentially  be
lost) if Harriss trial were delayed.
          Of  course,  one might argue  that,
absent   the  impending  death  or  permanent
unavailability  of  an important  witness,  a
continuance   or, as was the  case  here,  an
additional continuance  will almost always be
adequate  to cure the prejudice to  the  non-
offending  party.  But this is  not  how  the
Alaska  Supreme  Court  has  interpreted  and
applied this concept.
          The  supreme  courts  decisions  in
Lee, DeNardo, Maines, and Honda Motor Co. all
indicate that the non-offending party  has  a
cognizable  interest in the  scheduled  trial
date.
          For  instance, in Lee, the  supreme
court declared that the record supported  the
trial   judges  decision  to  grant   summary
judgement  against Lee because  Lees  willful
discovery violation had prejudiced the State:

     Lees omissions delayed progress in   the
case  and  forced the state to either  depose
Lee  without  the aid of written discovery[,]
or  conduct  a trial without the  benefit  of
meaningful discovery.
     .  .  .

     [W]ithout pre-trial discovery, the state
would have had inadequate time to examine and
understand    the    scientific    principles
pertinent  to [Lees claims], and consequently
might  have  been  unable to  dispute  [their
validity].   For these reasons, the  sanction
imposed  [by the trial judge]  accepting  the
[States]  alleged  facts  as  admitted    was
sufficiently   tailored  to   the   discovery
violation.

141 P.3d at 350-51.
          This  quoted  language makes  sense
only  if  one assumes that the State  had  an
interest  in  having the case go  forward  as
scheduled, and that the State would suffer  a
cognizable prejudice if the trial had  to  be
delayed because of Lees willful misconduct.
          Likewise,  in  DeNardo,  when   the
supreme court discussed why the non-offending
party  suffered  prejudice  as  a  result  of
DeNardos  discovery violations,  the  supreme
court focused solely on the difficulties that
the    non-offending   party    would    have
encountered if they had been forced to  trial
without  the information that DeNardo refused
to disclose.  51 P.3d at 924-25.  The supreme
court  did not discuss the possibility  that,
if  a  continuance had been granted,  DeNardo
might  eventually  have  been  coerced   into
making the required disclosures.
          Similarly, in Honda Motor Co.,  the
supreme  court upheld a trial judges decision
to  enter  judgement against Honda  when  the
company  repeatedly failed to  make  required
pre-trial  disclosures, even after the  trial
judge extended the disclosure deadlines.  751
P.2d  at 493.  Implicit in the supreme courts
ruling is the concept that, in the face of  a
partys  willful  disobedience  of  disclosure
obligations, it is sometimes permissible  for
a  trial judge to insist on orderly procedure
and   that  a  trial  judge  need  not   keep
extending deadlines, or granting continuances
of  a trial  even when this means sacrificing
the goal of a full litigation of the relevant
facts.
          (We  also  note, from  the  supreme
courts  recitation of the procedural  history
in  Honda  Motor Co., that the supreme  court
did  not require the trial judge to first try
to  compel  compliance by  imposing  monetary
sanctions on Honda or their attorneys  before
moving  to the more severe sanction of issue-
preclusion.)
          Compare the supreme courts decision
in Maines, where the court concluded that the
trial  judge was obliged to employ  sanctions
short  of the preclusion of evidence  because
more  than  two  months  remained  until  the
scheduled  trial  date, and thus  ample  time
remained to cure any problems [caused by  the
discovery violation].  155 P.3d at 326.
          Based  on the Alaska Supreme Courts
treatment  of  this issue, we reject  Harriss
contention  that a continuance of trial  will
always be an adequate remedy unless the  non-
offending   party  proves  that   they   will
certainly  lose  evidence  if  the  trial  is
delayed.   The  supreme courts  decisions  in
this  area show that the non-offending  party
has  a  protected interest in  the  scheduled
trial date.
          This  interest is not absolute;  it
can be overridden when justice requires.  But
when a trial judge is confronted with willful
disobedience to discovery rules  and  orders,
the  judge  is not required to keep  delaying
the  trial  to  protect the offending  partys
interest  in a full hearing of the  evidence.
Rather, the judge has the discretion to order
the   trial  to  go  forward  with   abridged
evidence.
          The  ultimate question is  whether,
given  the  finding  that Hedlands  discovery
violation was willful, Judge Weeks abused his
discretion  when  he concluded  that  another
continuance of Harriss trial would  not  cure
the  prejudice to the State or  deter  future
violations of the discovery rules.  Given the
record  before us, we can not say that  Judge
Weeks abused his discretion when he concluded
that  a continuance would not be adequate  to
achieve   these   purposes,   and   that    a
restriction  on  Dr. Ophovens  testimony  was
required.

Harriss  argument  that,  if Judge  Weekss  ruling  was
proper under Alaska Criminal Rule 16(c)(4) as construed
in  light  of the relevant case law, then Rule 16(c)(4)
is unconstitutional

          Harriss  final  argument is  that,  if  Judge
Weekss   ruling  is  defensible  under  Criminal   Rule
16(c)(4),   then  Rule  16(c)(4)  is  unconstitutional.
Harris  asks us to construe the Alaska Constitution  as
embodying the view taken by the dissenters in Taylor v.
Illinois.11   In other words, Harris asks  us  to  hold
that  a  defendants constitutional right to  present  a
defense  absolutely  bars trial judges  from  excluding
potentially  exculpatory evidence as a sanction  for  a
defense violation of the discovery rules, no matter how
egregious  the  violation,  unless  the  defendant   is
personally responsible for the violation.
          We reject Harriss argument for three reasons.
          First,    Alaska   Criminal   Rule   16(c)(4)
expressly  authorizes trial judges  to  exclude  expert
testimony as a sanction for a violation of the duty  of
disclosure  imposed by that rule.   Court  rules,  like
statutes,  are  entitled to a presumption  of  constitu
tionality.12
          Second,  as  this Court stated  in  State  v.
Zerkel, 900 P.2d 744, 758 n. 8 (Alaska App. 1995),  and
again  in Aaron v. Ketchikan, 927 P.2d 335, 336 (Alaska
App.  1996), [w]hen a defendant asserts that the Alaska
Constitution  affords  greater  protection   than   the
corresponding provision of the Federal Constitution, it
is  the  defendants burden to demonstrate something  in
the   text,   context,  or  history   of   the   Alaska
Constitution    that    justifies    this     divergent
interpretation.   Harris argues that we  should  reject
the  result in Taylor v. Illinois as a matter of Alaska
constitutional law  in particular, under the compulsory
process clause13  but he offers no pertinent discussion
of the text, context, or history of that provision.
          Third,  the relevant decisions of the  Alaska
Supreme   Court  indicate  that,  although  our   state
constitution  may limit a judges authority  to  enforce
discovery  rules by precluding or restricting evidence,
our  constitution does not absolutely bar  judges  from
employing this sanction.
          It is true that a defendants right to present
a  defense  is  a  fundamental tenet  of  our  criminal
justice system.  But so, too, is the principle  that  a
criminal  trial should not be reduced to a  process  of
evasion and ambush.  For example, in Babcock v.  State,
685  P.2d  721,  726  (Alaska App.  1984),  this  Court
recognized  that  a  trial  judge  ultimately  has  the
authority  to bar a defense witness from testifying  if
the  witness  has  willfully violated  a  sequestration
order.
          In  Harriss  case,  Judge  Weeks  found  that
Harriss  attorney purposely concealed the substance  of
Dr.  Ophovens  proposed testimony with  the  intent  of
sandbagg[ing]  the  State.  As our  supreme  court  has
noted,  such outright failures to respond to  discovery
[obligations] halt the case development process dead in
          its tracks, and threaten the underpinnings of the
discovery  system[.]  Hikita v. Nichiro Gyogyo  Kaisha,
Ltd., 12 P.3d 1169, 1175 (Alaska 2000).14
          In  DeNardo,  our  supreme court  held  that,
despite a civil defendants constitutional right to  due
process   and   right  to  trial  by   jury,   it   was
constitutional  for the trial judge to grant  judgement
against   DeNardo  because  of  his  willful  discovery
violations.   51  P.3d at 927-28.   The  supreme  court
declared, A party willfully refusing to comply  with  a
discovery  order  risks  ultimate  loss  of  its  case,
whether through dismissal (if the recalcitrant party is
the  plaintiff)  or  imposition of  liability  (if  the
non-complying party is the defendant).  Id. at 927.
          It  is  true  that  DeNardo was  representing
himself,  and  he therefore bore direct  responsibility
for  his  failure  to comply with the discovery  rules.
But  the  parties in Lee and in Honda  Motor  Co.  were
represented by counsel, and yet our supreme  court  did
not mention this as a significant factor when the court
upheld  the  litigation-affecting sanctions imposed  by
the trial judges in those two cases.
          Harris  does not discuss any of these  cases,
nor  any  others  of  more than  tangential  relevance.
Because  of  this, Harris has failed  to  overcome  the
presumption    that   Criminal   Rule    16(c)(4)    is
constitutional.
          For  all  of  these reasons, we uphold  Judge
Weekss decision to limit the testimony of Dr. Ophoven.

The evidence of Harriss prior conviction for assaulting
another infant

          In  1998, Harris assaulted his six-month  old
daughter  in  a manner similar to the way he  assaulted
the baby in this case:  by breaking his daughters upper
right  arm.   He ultimately pleaded guilty  to  fourth-
degree assault.
          When the State took Harriss case to the grand
jury,  the  State  presented  evidence  of  this  prior
conviction.   Before trial, Harris sought a  protective
order  barring the State from introducing this evidence
at  trial.   Judge  Weeks  ultimately  ruled  that  the
evidence  was admissible under Evidence Rule  404(b)(4)
as  construed in Bingaman v. State, 76 P.3d 398 (Alaska
App. 2003).
          At Harriss trial, this evidence was presented
to the jury by having the court take judicial notice of
Harriss guilty plea to fourth-degree assault.
          When  the  prosecutor delivered his summation
to  the jury, he pointed to Harriss prior conviction as
tending  to  prove that Harris (among the three  adults
present when the babys arm was broken) was probably the
perpetrator.   The  prosecutor also pointed  out  that,
because  of this prior conviction, Harris had the  most
          to lose if he was convicted of assaulting the baby.  In
addition,  the  prosecutor noted that  Harriss  sister,
Linnea,  had provided a false alibi for Harris  in  the
1998 case.
          Alaska  Evidence  Rule 404(b)(4)  states,  in
relevant  part,  that [i]n a prosecution  for  a  crime
involving  domestic  violence, ...  evidence  of  other
crimes  involving  domestic violence by  the  defendant
against  the  same or another person ... is admissible.
In  Bingaman, this Court clarified that Rule  404(b)(4)
authorizes  a  court to admit evidence of a  defendants
other  crimes involving domestic violence  even  though
the  only  relevance of this evidence is to prove  that
the  defendant  characteristically engages  in  similar
acts  of domestic violence, thus making it more  likely
that  the  defendant  committed  the  act  of  domestic
violence alleged in the current litigation.15
          On  appeal, Harris argues that it  was  error
for  Judge  Weeks to allow the State to introduce  this
evidence.   Harris  concedes that his prior  conviction
was probative to some degree.  In fact, when this issue
was  litigated  in the superior court, Harris  conceded
that  most  of  the factors [listed]  in  Bingaman  ...
[were] satisfied.  However, Harris now argues that  the
State  had so much other evidence connecting Harris  to
the  present  assault that there was  little  practical
need  to let the State introduce evidence of the  prior
assault.
          This  argument was not preserved for  appeal.
In  the  superior court, Harris argued that the paucity
of  the  States  evidence linking him  to  the  present
crime,  not  its  abundance, was the factor  that  made
evidence  of the earlier assault more prejudicial  than
probative.
          Moreover,  even  if  this argument  had  been
preserved, it lacks merit.  Harris relies on Harvey  v.
State,  604  P.2d 586 (Alaska 1979).   In  Harvey,  the
Alaska Supreme Court held that evidence of a defendants
past  acts  of  abuse  in child abuse  cases  is  often
relevant only in that it reflects on the propensity  of
a  past offender to continue a pattern of child abuse[,
and  t]his  is  precisely the type  of  inference  Rule
404(b)  is intended to prevent.16  According to Harris,
the  decision  in  Harvey supports his contention  that
Judge  Weeks  should  not  have  admitted  evidence  of
Harriss prior assault conviction.
          But the supreme court decided Harvey in 1979,
before Evidence Rule 404(b)(4) was enacted.  (That rule
was  enacted  in 1997.17)  As this Court  explained  in
Bingaman,  the  legislature enacted Rule  404(b)(4)  to
exempt    certain   evidence   from   Rule   404(b)(1)s
prohibition  against propensity evidence.18   In  other
words, the analysis used by the supreme court in Harvey
is inconsistent with Alaska law following the enactment
of Rule 404(b)(4).
          Given  the  facts in this case,  we  conclude
that Judge Weeks could reasonably find that evidence of
Harriss  previous  assault on his infant  daughter  was
probative of Harriss identity as the babys assailant in
the  present case, and that this evidence  was  not  so
unfairly  prejudicial  as  to require  exclusion  under
Evidence  Rule  403.  Moreover, Judge  Weeks  acted  to
minimize  any  potential prejudice  by  cautioning  the
jurors (1) that they were not to convict Harris for his
past conduct, and (2) that Harriss prior conviction, by
itself,  was  insufficient to prove his  guilt  in  the
present case.
          We  further note (although neither party  has
discussed  this  point)  that  the  disputed   evidence
appears  to  have  been independently admissible  under
Evidence  Rule  404(b)(2)  the portion of  Rule  404(b)
that  deals specifically with child abuse cases.   This
rule reads:
     
          In  a  prosecution for a crime involving
     ... physical ... assault or abuse of a minor,
     evidence  of  other  acts  by  the  defendant
     toward   the   same  or  another   child   is
     admissible  if admission of the  evidence  is
     not precluded by another rule of evidence and
     if the prior offenses
     
          (i)   occurred  within  the   10   years
     preceding the date of the offense charged;
     
          (ii) are similar to the offense charged;
     and
     
          (iii)   were   committed  upon   persons
     similar to the prosecuting witness.
     
     Harriss  prior assault on his infant daughter
     fits  all three requirements listed  in  this
     rule.
     
Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  1 Taylor, 484 U.S. at 405, 108 S.Ct. at 651.

  2 Id., 484 U.S. at 410-416, 108 S.Ct. at 653-56.

  3 Id., 484 U.S. at 416, 108 S.Ct. at 657.

4The pre-trial disclosure deadline expired on Monday December
13th  because the 30th day before trial (December 11th)
fell on a Saturday.  See Alaska Criminal Rule 40(a).

5 DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 923 (Alaska
2002);  Hughes  v. Bobich, 875 P.2d 749, 753 (Alaska  1994);
Honda  Motor  Co., 751 P.2d at 492; Hawes  Firearms  Co.  v.
Edwards, 634 P.2d 377, 378 n. 2 (Alaska 1981).

6 Maines, 155 P.3d at 325.

7 Id.

8  See  Lee, 141 P.3d at 350; DeNardo, 51 P.3d at 927; Honda
Motor Co., 751 P.2d at 493.

9 Lee, 141 P.3d at 351.

10  The most current version of the ABA Standards  i.e., the
Third   Edition  published  in  1996   now   cautiously
endorses  the  exclusion of evidence as a sanction  for
egregious  discovery violations.  Here is the  text  of
Standard   11-7.1(a) (Sanctions) of the ABAs  Standards
Relating to [Criminal] Discovery:

(a) If an applicable discovery rule or an order issued
pursuant  thereto  is not promptly implemented,  the
court should do one or more of the following:

(i)  order  the  noncomplying party  to  permit  the
discovery  of  the  material  and  information   not
previously disclosed;

(ii) grant a continuance;

(iii)  prohibit the party from calling a witness  or
introducing   into   evidence   the   material   not
disclosed,  subject  to  the  defendants  right   to
present  a  defense and provided that the  exclusion
does not work an injustice either to the prosecution
or the defense; and/or

(iv) enter such other order as it deems just under  the
circumstances.

11484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

12DeNardo, 51 P.3d at 928.

13Article I, Section 11.

14Quoting James William Moore et al., Moores Federal Practice
(3rd ed. 1997),  37.90, Vol. 7, pp. 137-141.

15Bingaman, 76 P.3d at 401.

16Harvey, 604 P.2d at 590.

17See SLA 1997, ch. 63,  22.

18Bingaman, 76 P.3d at 408.

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC