State v. LaRue ( 2003 )

OPINION

DAVID B. GAULTNEY, Justice.

Defendant Joe Edward LaRue was indicted for the 1989 murder of Donna Pentecost. Finding the State willfully violated a discovery order, the trial court granted LaRue’s motion to suppress DNA evidence. The State filed this interlocutory appeal of the suppression order.

JURISIDICTION

We have jurisdiction under Tex. Code CRiM. PROC. Ann. art. 44.01(a)(5) (Vernon Supp.2003). The State may appeal a court order granting a motion to suppress evidence if jeopardy has not attached in the case, and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence is of substantial importance in the case. Id. The trial court granted La-Rue’s motion to suppress evidence, jeopardy has not attached, and the State made the appropriate certification. The trial court entered a stay order pending the disposition of this appeal. See TexCode Crim. PROC. Ann. art. 44.01(e) (Vernon Supp.2003).

STANDARD OF REVIEW

In reviewing an order suppressing evidence, appellate courts, as a general rule, give almost total deference to a trial court’s determination of historical facts that the record supports. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The trial court, as factfinder in a discovery dispute, is entitled to believe or disbelieve the witnesses who testify at the suppression hearing. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). An appellate court reviews de novo (a) a pure question of law where the facts are undisputed and (b) mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999) (questions of law); Guzman, 955 S.W.2d at 89 (mixed questions of law and fact).

The construction of the discovery order and the meaning of “willful” in this context are issues of law. See generally Hampton v. State, 86 S.W.3d 603, 611 (Tex.Crim.App.2002) (Meaning of words and phrases is a question of pure law.). Whether the prosecutor’s conduct in this case was willful is a mixed question of law and fact. See generally Guzman, 955 S.W.2d at 87-88 (explaining review of mixed questions of law and fact). We must determine whether the record supports a finding of willful misconduct within the meaning of that term in this context.

The Discovery

A chronology of the discovery dispute is set out below:

March 30, 2000: State submits items of evidence to lab for DNA testing and analysis, including oral swabs, oral slides, DNA extracts and blood cards from Pentecost, and blood vial and bloodstain from LaRue.

April 28, 2000: State submits items of evidence, including a shirt from Pentecost’s body and a cigarette butt, to DNA lab for testing and analysis.

September 12, 2000: State receives lab report containing the results of the scientific analysis on the March 30 and April 28 submissions.

November 1, 2001: The grand jury indicts LaRue for Pentecost’s murder.

November 7, 2001: Trial court appoints defense counsel.

December 5, 2001: State submits additional items of evidence, including fingernail samples, hair, and swabs from Pentecost, to lab for DNA testing and analysis.

December 14, 2001: Defense counsel files a motion for discovery.

January 25, 2002: Trial court grants discovery motion.

April 17, 2002: State receives a report detailing the results of the analysis of material submitted to lab on December 5, 2001.

January 3, 2003: State provides DNA test results from September 12, 2000, lab report to defense counsel after several requests by defense counsel.

January 12, 2003: State designates expert witness.

January 31, 2003: Prosecutors and defense counsel meet. State turns over bulk of discovery material, including witness list, autopsy report, statements by LaRue, lab submission reports, and multiple page summary prepared by State.

February 13, 2003: State provides copy of lab report from April 17,2002.

February 13, 2003: Jury selection begins.

March 3, 2003: After completion of voir dire, prosecutor announces that a hair under a fingernail scraping is also available for testing and asks whether defense counsel wants the testing done.

March 5-7, 2003: Trial court holds hearing on suppression issues.

March 7, 2003 Defendant files motion to suppress.

March 12, 2003: Trial court enters findings of fact and conclusions of law and grants the motion to suppress.

Willful

The trial court found the DNA evidence was willfully withheld. Evidence willfully withheld from disclosure under a discovery order should be excluded from trial. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000); Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App.1978). In this context, an act is willful if the act is done voluntarily and intentionally, with the specific intent to disobey the law. See Black’s Law DictionaRY 1599 (6th ed.1990).

The DiscoveRY ORDER

In December 2001, defense counsel filed a motion for discovery, requesting production of specified categories of evidence. The trial court granted the motion on January 25, 2002. No separate written order was prepared. Instead, at the bottom of the first page of the discovery motion, the trial judge wrote “[gjranted 1-25-02.” The notation did not specify a date for the State’s production of the evidence, and the motion did not request one. The only suggestion of a time frame for production was defendant’s request in his motion that the production and inspection take place at a time and in a manner that seemed “right and proper” to the trial court.

Article 39.14(a) of the Texas Code of Criminal Procedure states as follows:

Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, -written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.

Tex.Code CRiM. PROC. Ann. art. 39.14(a) (Vernon Supp.2003) (emphasis added). The statute requires that the discovery order specify the time, place, and manner of making the copies and photographs of the documents, and also requires that any inspection shall be in the presence of a representative of the State. Id; see also Kinnamon v. State, 791 S.W.2d 84, 91-92 (Tex.Crim.App.1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App.1994) (Trial court did not err in failing to specify in the discovery order the time, place and manner to produce evidence when the defendant did not ask the court do so.).

No written order specifying the “time, place and manner” for production was entered in this case. The State was ordered to produce the evidence and the State did so: some evidence was produced five weeks before jury selection, some a month before jury selection, and some on the day of jury selection. Since the order contained no date by which the evidence was to be produced, the production did not violate any express term of the order. See Murray v. State, 24 S.W.3d 881, 893 (Tex.App.-Waco 2000, pet. ref'd) (There was no violation of court’s discovery order where no deadlines were imposed by trial court.).

Nevertheless, a reasonable construction of the discovery order in this case would require production of the DNA evidence at a time sufficient to permit defendant to analyze the evidence or otherwise prepare his defense. Yet, even considering this implicit timeliness requirement of the order, the DNA evidence should not have been suppressed. Under the circumstances in this case, the appropriate solution to the discovery dispute was a continuance of the trial to afford defendant time to prepare his defense to the DNA evidence.

The RecoRD

Testimony from the prosecutor reveals he was involved in the prosecution of another capital murder from October to mid-November 2002. Shortly after that, he understood he was being assigned to a different court and that someone else would be taking over the LaRue case. The prosecutor testified he “put this case out of [his] mind because it was no longer at that point [his] responsibility.” Not until the Christmas holidays did he understand he would be remaining on the case. In early January 2003, he began to produce the ordered discovery.

The record reflects that the customary practice in Jefferson County is for the prosecutor and the defense attorney to arrange a mutually convenient date to handle evidence production. The record reveals defense counsel asked several times for discovery both by phone and in person. The defense knew about the State’s DNA evidence and had requested and received the trial court’s permission to have experts, when defendant deemed it necessary, for DNA and forensic analysis. Assuming the State failed to agree to a mutually convenient date to handle the evidence production, defendant had a remedy. Article 39.14(a) provides that remedy in the form of an order specifying the time, place, and manner the production must occur.

The prosecutor acknowledged at the suppression hearing that he had made a “mistake.” He explained he had not responded in a timely fashion to defense counsel’s requests, in part because of some confusion over which prosecutor would be responsible for the case. While this confusion does not excuse the State’s failure to produce the evidence when requested by defense counsel, neither does the record support the trial court’s “willful” finding in these circumstances.

The trial court also concluded that LaRue’s constitutional rights of due process and the effective assistance of counsel were violated by the State’s conduct. Specifically, the trial court found the State’s conduct necessitated LaRue’s foregoing his right to a speedy trial because of the lack of timely discovery. We disagree. As the Court of Criminal Appeals recently stated, “In determining whether an accused has been denied his right to a speedy trial, a court must use a balancing test ‘in which the conduct of both the prosecution and the defendant are weighed.’ ” Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App.2003) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). The Court cited Barker in stating the following:

The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant’s assertion of his speedy trial right, and the prejudice to the defendant resulting from the delay. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial.

Dragoo, 96 S.W.3d at 313 (citations omitted). We have noted the length of time the State took to produce the evidence, and the State’s explanation for the time. Against this length of time we balance other factors. LaRue had earlier filed various pro se motions, including two motions for speedy trial, that he later withdrew. Defense counsel explained he persuaded LaRue to withdraw the speedy trial motions because of the State’s failure to produce the evidence under the discovery order. The Motion to Disregard ProSe Motions was signed and agreed to by LaRue and defense counsel, and does not reference any discovery issue. The defense did not file a motion to suppress the DNA evidence until three weeks after the beginning of jury selection. The record contains no evidence that the trial court was asked to enter an order in conformity with the “time, place and manner” requirements of art. 39.14(a) when the speedy trial motion was withdrawn or at the time of any prior continuance. La-Rue has not shown that his right to effective assistance of counsel was abridged, nor has he shown that his defense has been impaired by any delay. Under these circumstances LaRue’s right to a speedy trial would not be violated by a continuance designed to give him additional time to defend against the DNA evidence.

The record reflects that at the conclusion of the suppression hearing the trial court carefully considered the fairness of proceeding with the trial, and considered the importance of the issue to the State and to the defendant. Both the State and the defendant are well represented by able counsel effectively articulating their respective legal positions and both urged the trial court to proceed with the trial. Although neither LaRue nor the State moved for a continuance of the latest trial setting, the trial court clearly could have ordered a continuance. See Osbourn v. State, 59 S.W.3d 809, 813 (Tex.App.-Austin 2001), aff'd, 92 S.W.3d 531 (Tex.Crim.App.2002). The trial court initially decided to order a continuance on its own based on a finding that the prosecutor’s conduct was not willful. Only after the State urged the court not to order a continuance, because the defendant had not asked for one, did the trial court finally conclude the discovery conduct was willful and suppress the evidence.

The record does not support a finding of intentional disobedience of the trial court’s discovery order by the prosecutor. Under the circumstances, the DNA evidence should not have been suppressed. Rather, if defendant were “surprised” or otherwise at a disadvantage, he should have requested a continuance, and a continuance order could have been entered. See generally Ramirez v. State, 815 S.W.2d 636, 649 (Tex.Crim.App.1991) (State failed to produce evidence in response to discovery order, but appellant did not show surprise and did not move for continuance.); Osbourn, 59 S.W.3d at 816 (There was no evidence the State acted in bad faith in failing to disclose the evidence or willfully failed to respond to the trial court’s order under art. 39.14(b); Osbourn could have anticipated the evidence, and he failed to request a recess, postponement, or a continuance.); see generally Wood v. State, 18 S.W.3d 642, 647-48 (Tex.Crim.App.2000) (Trial court did not abuse its discretion in denying motion for mistrial where defendant did not receive copy of subpoenaed evidence until trial; defendant did not request continuance, a much less drastic remedy.).

Conclusion

The record does not reflect a willful violation of the discovery order. Any discovery time constraints can be resolved with the less drastic remedy of a continuance. LaRue still can be given sufficient time to prepare his defense to the evidence. The trial court’s suppression order is reversed, and the case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.