COURT WATCH: Public Defender Claims Client Faces ‘Trial by Ambush’ after Judge Denies Motion to Exclude Late Witness 

By Avery Redula and Madison Whittemore

WOODLAND, CA – A public defender’s motion to exclude a witness from testifying was denied by Judge Daniel Wolk here in Yolo County Superior Court Monday after the prosecution introduced a fifth witness and two pages of discovery just a day before the accused’s jury case in chief is to begin.

The accused is charged with several misdemeanor charges for driving under the influence of alcohol (DUI) with two additional enhancements for excessive blood alcohol content (BAC), all of which occurred in early March, 2023.

Prior to jury selection at Monday’s hearing, Deputy Public Defender Cheyanne Martin introduced several oral motions to Judge Wolk that sparked tense arguments between the DPD and Deputy District Attorney Casper Gorner.

The first motion by DPD Martin moved to exclude any of DDA Gorner’s potential references to circumstantial evidence (indirect evidence) with jurors, noting several concerns about DDA Gorner preconditioning the jury by excessively asking jurors about circumstantial evidence over direct evidence.

However, this motion was quickly denied by Judge Wolk.

Shortly after, Judge Wolk deferred another motion by DPD Martin after explaining that the motion would be discussed at a further date if it became a relevant issue in the case.

The third motion, however, triggered a lengthy argument after DPD Martin requested the exclusion of a fifth witness and two pages of discovery that would provide new information on the accused’s blood alcohol content (BAC), the calibration of a PAS device (preliminary alcohol screening) used to measure the accused’s level of impairment, and the overall effects of alcohol on the body.

According to DPD Martin, she had just received the information about the new witness and discovery Monday morning from DDA Gorner.

“At the same time that Your Honor learned that there were five witnesses in this case, defense learned that there were five witnesses in this case and that was approximately 10 to 15 minutes ago,” DPD Martin argued, objecting to allowing the new witness to testify because the DPD would have too little time to prepare for cross-examination.

DPD Martin added that if Judge Wolk allowed the new witness to testify, it would be an improper “trial by ambush,” especially because of DDA Gorner’s failure to offer proof as to the relevance of the new witness’s testimony.

DDA Gorner acknowledged DPD Martin’s concerns regarding cross-examination and even admitted his own “error” in the case since he originally thought the accused’s blood tests would be used as evidence instead of the PAS breath test and calibration logs.

However, the prosecutor continued to urge Judge Wolk to allow the new witness, even suggesting that the court should first consider a continuance or late discovery instruction rather than not allowing the testimony.

DPD Martin said she was completely unaware of the calibration logs’ existence, also asserting that Gorner had not “provided (her) with any statements from the witness that intends to testify regarding calibration logs.”

DPD Martin maintained it would be inappropriate for the witness to take the stand since the witness did not calibrate the actual PAS machine used on the accused and simply works for the company of the machine, which does not break the foundational barrier to admit the calibration logs as evidence in this case.

Disputing Martin’s claims, Gorner noted the witness would not be an expert witness regarding the accuracy of the tests, but would just provide testimony on what field sobriety tests indicate, also adding that he would request a late discovery instead of witness exclusion.

“I don’t see that as an undue burden on the defense,” the DDA claimed, adding that a late discovery allowance would give DPD Martin “ample time” to review the discovery documents and prepare for cross examination.

Judge Wolk denied the exclusion request, instead granting late discovery and the possibility of a 402 hearing (to determine whether or not certain evidence is admissible).

“Defense is essentially going to figure out what these witnesses are going to testify to on the spot because Mr. Gorner has not had communication with his expert,” DPD Martin concluded, clearly expressing disagreement after Judge Wolk denied the motion.

The jury trial for the accused will proceed this week and the estimated trial length is three days.

About The Author

Madison Whittemore is a rising junior at the University of California, Davis where she studies political science and psychology. After completing her undergraduate studies, Madison wants to go to law school and study criminal law while working to improve efforts for prison reform and representation for lower income citizens.

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