State v. Musumeci

¶1concurring in part and dissenting in part.

¶2While I concur with the majority and believe that the appropriate standard of review to be applied in the instant case is an abuse of discretion standard, I respectfully dissent from both the majority’s factual analysis and its conclusion that the trial justice abused her discretion. On the contrary, I believe that this learned trial justice applied the proper criteria and pursuant to the authority granted to her by well-established rules of criminal procedure appropriately selected dismissal as a remedial sanction on the ground of grossly negligent prosecutorial misconduct.

¶3Beginning with a series of cases, the majority of which were decided over fifteen years ago, Rule 16 of the Superior Court Rules of Criminal Procedure was fleshed out such that the disclosure responsibilities for both sides to a criminal prosecution are now well established. See State v. Verlaque, 465 A.2d 207, 213-14 (R.I.1983); State v. Concannon, 457 A.2d 1350, 1353-54 (R.I.1983); State v. Coelho, 454 A.2d 241, 244-45 (R.I.1982); State v. Sciarra, 448 A.2d 1215, 1218-19 (R.I.1982); State v. Darcy, 442 A.2d 900, 902-03 (R.I.1982); State v. Silva, 118 R.I. 408, 411, 374 A.2d 106, 108 (1977). Indeed, the jurisprudence surrounding Rule 16, its meaning, and its significance have a long history in this Court to the point where its “wide acceptance has become part of the context in which a trial is conducted.” Darcy, 442 A.2d at 903.

“An attorney who expects, by reason of reliance upon the rules, that honest, accurate, and complete answers will be given in response to discovery requests can scarcely be effective if his expectations are wholly shattered in the course of a trial. His reaction will be one of surprise and occasionally consternation. … The requirements of due process and of effective assistance of counsel must be evaluated and defined within the context of a trial con*72ducted in accordance with rules of procedure and discovery which are in effect in a particular jurisdiction. We do not suggest that any deviation from discovery requirements, however slight, will constitute a violation of due process and effective assistance of counsel. However, when the failure of discovery results in complete surprise on a crucial issue, then we believe that due process and effective assistance of counsel will be impacted.” Id.

¶4As a result the criminal bar has been at relative peace with respect to its discovery obligations and the need to impose sanctions for violations thereof. The lessons have been well taught, albeit painfully, to prior generations of prosecutors and defense counsel such that the need to impose sanctions for various discovery violations has been greatly diminished.

¶5Nevertheless this Court has had ample opportunity to review and discuss the appropriateness of sanctions for failure of either party to fulfill their discovery obligations pursuant to Rule 16. We have consistently stated, as the majority acknowledges, that while subsection (i) of Rule 16 provides a list of specific sanctions to employ in the event of noncompliance, the trial justice is clearly free within the bounds of sound discretion to impose any sanction he or she deems appropriate in light of the attendant circumstances. See State v. Quintal, 479 A.2d 117, 119 (R.I.1984); Silva, 118 R.I. at 411, 374 A.2d at 108; see also Darcy, 442 A.2d at 902 (“[t]he phrase ‘such other order as it deems appropriate’ makes the declaration of a mistrial an appropriate sanction”). Because the trial justice is unquestionably in the best position to evaluate the ease and determine what sanction would be most suitable, we will not, and should not, disturb his or her action in this regard absent a clear abuse of discretion. See State v. Brisson, 619 A.2d 1099, 1102 (R.I.1993); Coelho, 454 A.2d at 244-45. But see State v. DiPrete, 710 A.2d 1266, 1274 (R.I.1998) (no authority to impose sanction of dismissal).

¶6Yet in spite of this deferential standard of review, heretofore applied even in the face of dismissal of the charges, the majority concludes that the second trial justice abused her discretion in administering the sanction of dismissal. The majority cites DiPreteand Quintalas the only two reported case in which this Court has specifically considered the merits of a Superior Court dismissal sanction for a Rule 16 discovery violation.15 The majority further notes that only in Quintaldid we affirm the imposition of the sanction of dismissal, and only then after the state’s repeated failure to produce the requested discovery notwithstanding the trial court’s entry of a conditional dismissal order providing for this disposition if the material was not produced by a date certain. I nevertheless believe that the rarity with which the sanction of dismissal is imposed in no way affects the appropriateness of its application but rather it reflects the care and deliberation with which the imposition of such a sanction is approached.

¶7It should be noted that Quintal, as well as State v. Rawlinson, 526 A.2d 1278 (R.I.1987), represent the watershed of the state’s chronic failure to make timely discovery before trial. A judge-made compliance tool, Quintal’s self-executing order of dismissal was developed and employed by the trial court as a last-ditch effort to force the state’s compliance. It worked. Accordingly the fact that over ten years passed before this Court again had the opportunity, or misfortune as the case may be, to review a case in which dismissal had been ordered in response to the state’s failure to comply with its discovery obligations is of little or no surprise. Furthermore, the fact that there is a paucity of cases addressing the issue of dismissal *73resulting from prosecutorial misconduct in no way undermines the authority of the trial court, as afforded by Rule 16, to apply this sanction as a remedy for a “very grievous” discovery violation. See DiPrete, 710 A.2d at 1292 (Boureier, J. dissenting) (proper judicial response is not dependent upon the existence of past precedent). On the contrary, it is my opinion that the second trial justice in this case followed well-established procedure, conducted a careful and thorough analysis of the facts, applied the Coelhocriteria, and determined that dismissal was warranted. On the basis of facts of this case, I can discern no error in her decision to do so.

¶8The second tidal justice found, and the record reveals, that the nondisclosure was directly attributable to the prosecutor’s inadequate and indeed grossly negligent preparation of the case. This investigation was conducted over a six-month period and involved not only Musumeci but several other employees of the North Providence Department of Public Works. This fact alone ought to have alerted the prosecutor to the existence of the log in question and at least the possibility of hand written notes. This prosecutor, however, spent merely one hour with the state’s chief witness, the investigating officer, Paul E. Rodrigues (Rodrigues), one week before the trial and at no point inquired whether the witness possessed any other statements, reports, or notes that might be relevant to the case. Furthermore Rodrigues was not “an undercover police officer” as the majority asserts but rather an applicant for a law enforcement position with the North Providence police department who in the hopes of being hired for a full-time patrolmen’s position accepted an offer to participate in the investigation. This is a significant distinction in two respects. First, this “officer” had absolutely no prior training, which may very well lend support to the entrapment defense planned by Musumeci’s counsel. Moreover this witness, while not a paid police informant, certainly had a vested interest in the success of the investigation. As the second trial justice observed, even elemental preparation in the instant case would have avoided the necessity of a mistrial.

¶9The trial justice next addressed the specific prejudice suffered by Musumeci noting that common sense would dictate that if the log contained potentially exculpating evidence, that potential existed to a far greater degree at the time Musumeci received the information package in October of 1993 than it did in March of 1995, the time when Musu-meci finally received the log. She also spoke in a more general sense of the prejudice inherent in retrying a case, noting the social, economic, and emotional burden of a second trial on an accused. The record discloses that Musumeci, an eight-year employee of the department of public works, had never before been arrested. As a direct result of the prosecutor’s grossly negligent conduct, conduct which I note was the source of grave concern to two experienced trial justices, this first time offender was forced to accept a mistrial and was required to undergo the financial and emotional hardship of another trial.

¶10More importantly, the trial justice found a total failure on the part of the prosecution to accept any responsibility for its failure to provide the defense with the required information or to recognize the severity of its violation. When initially confronted with the existence of the log, the prosecutor denied that his failure to include it in the information package constituted a violation of Rule 16, insisting instead that the log constituted work-product. The state further asserted that the information contained in the log had been provided to the defense as part of the witness statement summary and that therefore there was no harm or prejudice suffered by Musumeci. It is doubtless that this stonewalling and this refusal to admit any culpability with respect to a clear failure to turn over discoverable material contributed significantly to the second trial justice’s decision. The second trial justice stated that our system of jurisprudence is designed to ensure a “trial by jury, not trial by ambush” and concluded that the only way to ensure that such gross negligence was not repeated was to dismiss the case. I agree.

¶11The majority maintains, however, that on the facts of this ease, the second trial justice abused her discretion “in deciding to admin*74ister the extreme sanction of dismissal.” In so holding, the majority attempts to distinguish the dismissal in this case from the dismissal in Quintal, and simultaneously liken it to the dismissal in DiPrete, by focusing on the deliberate and persistent nature of the misconduct involved. The majority states that while the prosecution in Quintal“continued to deny the defendant any opportunity to examine the requested discovery materials or to avail himself of the potential advantages that may have flowed from doing so” here the nondisclosure was unintentional and, like the scenario presented in DiPrete, ultimately remedied. The majority opines that by virtue of the log’s production and the ten month interim between the mistrial and the scheduled commencement of the second trial, Mu-sumeci was afforded a sufficient remedy to any alleged prejudice and therefore dismissal was inappropriate. The inference to be drawn from this conclusion is that dismissal is only appropriate in instances where the conduct is intentional or the prosecution fails completely to deliver the required materials.

¶12The adoption of this bright-line test, however, is of little assistance to the bench and bar. This Court has always drawn a distinction between intentional and unintentional nondisclosure and has consistently held that proof of prejudice is unnecessary where there has been intentional and deliberate nondisclosure. See State v. Wyche, 518 A.2d 907, 910 (R.I.1986); Verlaque, 465 A.2d at 214; Concannon, 457 A.2d at 1353-54; In re Ouimette, 115 R.I. 169, 174-75, 342 A.2d 250, 252-53 (1975). We have recognized, however, the difficulty associated with establishing intentional and deliberate nondisclosure and have expressed our concerns about the prosecutor’s “good-faith intentions to comply with the spirit, if not the letter, of Rule 16.” Coelho, 454 A.2d at 245; see also Darcy, 442 A.2d at 903 (“it would be unfair to allow the state the tactical advantage of surprise gained by violating, whether intentionally or unintentionally, the rules of discovery”). Thus, I can see no purpose to be served by adopting the majority’s intentional misconduct/failure to produce test.

¶13Furthermore, while the majority acknowledges that the second trial justice was “justifiably concerned about the potential staleness of the evidentiary leads belatedly revealed in the log” it states that Musumeci should have or was required to provide additional evidence of actual prejudice. The majority intimates that had Musumeci presented the second trial justice “with an expanded evidentiary record different from the one that the first trial justice had faced” a more compelling case for dismissal would have been made.

¶14The record reveals, however, that the first and only evidentiary hearing held on the motion to dismiss was conducted by the second trial justice. For the first time, the trial court was presented with evidence about the specific contents of the log. Rodrigues had made entries every day for the six-month period he conducted his investigation, entries that related to not only Musumeci but all the individuals under investigation. This potentially exculpatory information, which would most certainly have prompted additional investigation by the defense, included names and dates not previously provided by the Attorney General’s office or covered in Rod-rigues’ witness statement. The nature and full extent of the violation and the gross lack of even elemental preparation was disclosed for the first time before the second trial justice; it was not a rehash of the earlier midtrial proceedings that culminated in a mistrial. Therefore I believe the trial justice was well within her authority to entertain Musumeci’s motion to dismiss.16

¶15In a similar vein, the majority further concludes, erroneously in my view, that the first trial justice had “already decided that dismissal was too severe a sanction.” On the contrary, I believe the first trial justice left the door wide open for further discussion on the appropriateness of the sanction. It is *75important to note that the first trial justice was confronted with the nondisclosure in the middle of trial and chose to deny the motion to dismiss at that time. The trial justice stated, however, that he found that the state had acted in such a manner as to “goad” Musumeci into moving for a mistrial. Contrary to the majority’s assertion, Musumeci clearly did not “request” a mistrial but was in fact reluctant to do so. A fair reading of this record supports the conclusion that Mu-sumeci had no other option available to him and that the first trial justice, and indeed both parties, fully expected this matter to be litigated at an appropriate time.

“Oh, I know it and I have considered that. I have considered it. It’s not such I feel I can on my own dismiss it. If somebody is reading it later on somebody else might dismiss it, I don’t know, but as of now I granted the motion for a mistrial. We got [sic ] a tainted jury here now.” (Emphasis added.)

¶16Accordingly, I disagree with the conclusion of the majority that the motion was either renewed some ten months after the fact or that the law-of-the-case doctrine “should have at least presumptively barred any reexamination of this initial ruling.” The motion to dismiss the information was filed the day after the mistrial was granted. This motion to dismiss, and an evidentiary hearing thereon, were clearly anticipated by both the first trial justice and by counsel. Indeed the record discloses that this motion was placed on the daily criminal calendar for hearing and was continued three times before counsel for both sides agreed it would be heard immediately prior to tidal. Moreover, the state never raised the issue of law of the case or res judicata at any time in the Superior Court and only raised these issues for the first time on appeal. Therefore, these issue are beyond our scope of review. See State v. Snow, 670 A.2d 239, 245 (R.I.1996).

¶17Finally, and the point upon which I find myself at the greatest odds with the majority is its response to the second trial justice’s stated intention to send a message to the state’s prosecutors that such future discovery misconduct will not be tolerated. The majority concedes that the second trial justice was justified in her anger over the state’s “inexcusable lack of preparation and its unwillingness … to acknowledge fully the consequences and impropriety of its actions in failing to discover and to produce the log in a timely fashion,” but nonetheless concludes that “a criminal defendant should not ‘go free because the constable [or the prosecution] has blundered.’ ”17 The majority opines that the burden of any dismissal action falls squarely on the people of this state and not solely upon the Attorney General’s office. I would suggest, however, that even more burdensome to the citizens of Rhode Island and our system of jurisprudence is the prosecuting arm of government adopting a caviler attitude towards and a reckless disregard for rules implemented to ensure the fair and efficient administration of criminal justice. See DiPrete, 710 A.2d at 1283-84 (Bourcier, J., dissenting) (failure of state’s prosecutors to respond candidly to Rule 16 discovery obligations serves to erode confidence in the criminal justice system); Concannon, 457 A.2d at 1353 (prosecutor or defendant who does comply with the rules of discovery undermines the judicial process).

¶18This case did not involve a prosecutor who while diligent in the discharge of his duties *76learned of the nondisclosure of discoverable material and then immediately sought to rectify the situation. On the contrary, this prosecutor, admitting he had not previously seen the material contained in the log, nonetheless stated that it was “work-product” to which Musumeci was not entitled. The prosecutor then changed course and argued that the state had not violated Rule 16 because the information contained in the log was a verbatim duplicate of Rodrigues’ statement that had been provided to the defense. The state then insisted that the log contained information concerning other investigations and that such information was irrelevant to Musume-ci’s case. This prosecutor went so far as to make the incredible statement that since the log corresponded with Rodrigues’ witness statement, the police must have determined that the statement was sufficient. This response indicates not only a failure to appreciate the seriousness of the violation but also a total misunderstanding of the prosecutor’s discovery obligations. See Verlaque, 465 A.2d at 214 (prosecutor does not have authority to interpret discovery rules and decide what constitutes substantial compliance or equivalent compliance).

¶19I respectfully suggest that it was this refusal to accept responsibility, as well as the state’s insistence that little or no prejudice befell Musumeci because he ultimately received the material, that was the driving force behind the dismissal by this seasoned trial justice. Indeed, more troubling than the prosecutor’s grossly inadequate preparation and investigation into the charges against Musumeci is the general and pervasive attitude that the Attorney General’s office can disregard the rules of discovery and not be held accountable. Throughout the course of these proceedings, up to and including appeal, the state has asserted the “we did not know about it therefore we are not responsible” defense. This response not only indicates a lack of contrition but also fails to inspire confidence that this type of violation will not happen again.

¶20The majority states that “[ajbsent substantial prejudice, … some other remedy(ies) and/or sanction(s) … should generally be imposed — at least in the first instance — upon the court’s learning of a material discovery violation.” I strongly disagree. What sanctions, if any, adequately address the severe findings and grave concerns of this trial justice? What comfort is the payment of attorney’s fees or the referral of an offending prosecutor to disciplinary bar counsel to a defendant who is convicted and in jail as a result of prosecutorial misconduct? I respectfully suggest that the majority’s pronouncement leaves the trial court without the ability to incite compliance or deter future violations. On the contrary, this case sends a message that parties to a criminal action, the prosecution in particular, have nothing to lose by withholding discoverable material. If an attorney fails to produce material in violation of Rule 16, at the very worst the transgression will be uncovered and a mistrial will be declared. On the other hand, the violation may not be disclosed and the offending party gains an unfair advantage. This “win-win” scenario is hardly the sort of thing this Court should be fostering. See also DiPrete, 710 A.2d at 1289 (Bourcier, J. dissenting).

¶21Therefore I am of the opinion that Rule 16 should be used not only to remedy the prejudice resulting from a party’s nondisclosure but also as a prophylactic measure to deter future misconduct. See generally United States v. Kojayan, 8 F.3d 1315 (9th Cir.1993); Commonwealth v. Jackson, 391 Mass. 749, 464 N.E.2d 946 (1984). I view the decision of the second trial justice, made in the context of this case and at this point in our state’s history, to be a clarion call for deterrence and restraint. This is a chorus in whose refrain I join.

¶22Accordingly I would deny and dismiss the state’s appeal, affirm the order of dismissal entered below, and remand the case to the Superior Court.