No Mistrial Despite No-Show Expert Witness

Fourth District Court of Appeal

The failure of a suspected child molester’s lawyer to subpoena a hired expert witness to testify in time for his client’s defense does not rise to the level of ineffective assistance of counsel or warrant a mistrial, a state appeals court said.

The Fourth District Court of Appeal in San Diego upheld the conviction and 25-years-to-life prison term for Robin Andrew Dunn.  He was accused of sexual intercourse with an 8-year-old relative who contracted syphilis after his assault and of lewd acts with a child less than 14 years old.

Justice Joan K. Irion noted there is no California case law on mistrials for unexpectedly unavailable witnesses, but as it was Dunn’s obligation to find and produce expert witnesses, there was no error in failing to declare a mistrial over the missing expert.

During a jury trial, Dunn’s defense did not dispute the molestation, but only that sexual intercourse actually occurred.

Prosecutors produced their own experts to testify, including Marilyn Kaufhold, a pediatrician specializing in child abuse, who said she found no physical evidence of penetration, but said the child’s account with anatomically correct dolls was consistent with those of other children who have been otherwise sexually violated.  She testified youngsters that age “do not know the anatomy of their genitals or understand how the various parts ‘fit together.’”

In addition, the child’s own pediatrician, Genevieve Minka, found evidence of abuse and confirmed that the child had syphilis, although it was never previously detected in either the child or her mother.

Another prosecution expert said the child “likely” contracted syphilis from Dunn.

Dunn asked the trial judge to declare a mistrial when his own expert witness, pediatrician Dr. Lynne Ticson, was unavailable to testify and had not been subpoenaed.  Dunn argued Ticson would have testified that sexual intercourse was “highly unlikely.”  He also said Ticson has performed sexual assault examinations for law enforcement, which might bolster his case. San Diego trial judge David M. Gill rejected the mistrial request.

Dunn argued that Gill abused his discretion rejecting a mistrial request, and that his lawyer provided ineffective assistance by failing to subpoena Dunn’s expert witness to appear at trial.  The appeals court denied his appeal.

In upholding Dunn’s conviction, Irion pointed out Dunn was responsible to identify and locate his own trial witnesses, and issue subpoenas if necessary.  The lower court had advised him to seek a substitute when he knew his witness would be unavailable, and he failed to do so.  And though a subpoena is not typically required to summon one’s own witness to trial, Dunn knew it was necessary in this case, because Ticson had told him her boss would not give her the days off to testify without one.  

Most importantly, the court noted, Ticson’s expected testimony would not have changed the outcome of the trial.

Dunn also failed to show his attorney’s performance fell below an objective standard of reasonableness.  It’s probable the result would have been the same, even with expert defense testimony.

Justice Irion was joined by Justices Judith McConnell and Judith L. Haller.

Case:  People v. Dunn, No. D058407

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