Com. v. Jordan, K.

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2015 Pa. Super. 202
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KYLE JORDAN
Appellee No. 2832 EDA 2011
Appeal from the Order Entered on September 1, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0014464-2010
BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.
DISSENTING OPINION BY WECHT, J.: FILED SEPTEMBER 22, 2015
The Commonwealth appeals from a sanction order that was imposed
by the trial court. The court imposed that sanction only after the prosecutor
intentionally and openly disobeyed an explicit order. That order required the
prosecutor to disclose the identity of one out of two confidential informants
whose identities the defense had sought.
Without even the slightest condemnation of the prosecutor’s defiance,
today’s learned Majority excuses the prosecutor’s conduct. Instead, the
Majority takes issue not with the defiant lawyer, but with the trial court that
was defied. The Majority then proceeds to hold that the underlying
disclosure order lacked legal merit. I respectfully disagree. In my view, the
trial court did not abuse its discretion either by ordering the disclosure of the
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identity of one of the confidential informants or by imposing the stiff, but
justified, sanction. Consequently, I dissent.
The Majority thoroughly sets forth the relevant factual and procedural
histories of this case. See Maj. Op. at 1-7. I need not repeat those details
here.
I begin by stating my agreement with the Majority’s conclusion that
the underlying disclosure order is reviewable in this appeal. Both
Commonwealth v. Jackson, 598 A.2d 568 (Pa. Super. 1991), and
Commonwealth v. Redmond, 577 A.2d 547 (Pa. Super. 1990), support
the Majority’s holding in this regard. See Maj. Op. at 9-11. These cases
enable us to review the underlying disclosure order.
I must note that application of those precedents here creates
something of an anomaly. As the Majority notes, the Commonwealth itself
generally is not permitted by our appellate rules and case law to appeal a
disclosure order. Id. at 9. Thus, had the Commonwealth actually complied
with the trial court’s order, this appeal would never have occurred.
However, the Commonwealth now is rewarded for disobeying the order,
regardless of the merits of the trial court’s decision to enter that order. By
dint of refusal to abide by the trial court’s order, the prosecutor was held in
contempt of court and sanctioned. Luckily for the Commonwealth, violating
the order opened the door for this Court to review the otherwise
unreviewable disclosure order.
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Typically, we do not reward those who act in direct contravention of a
court order. Nonetheless, peculiar though it may seem, Jackson and
Redmond mandate that we do so under these circumstances. I am bound
by our precedents. I am compelled to agree with the Majority that we can,
and must, review the merits of the trial court’s disclosure order.
That is where my agreement with the Majority ends.
The Majority accepts the Commonwealth’s contention that it should not
have had to disclose CI-2’s identity. In large part, the Majority premises this
conclusion upon the view that the informant’s identity was not material for
purposes of Brady v. Maryland, 373 U.S. 83 (1963), and Pa.R.Crim.P. 573.
The Majority posits that “[t]here is a distinction between the ‘identity’ of CI-
2 and the ‘statements’ that CI-2 made during the investigation.” Maj. Op. at
13-14. “To state the concept differently,” goes the Majority’s parsing, “it
does not matter who said that Lofton sold the cocaine; the alleged
exculpatory evidence was that Lofton performed that action.” Id. at 14.
The Majority offers no case authority in support of this cramped
interpretation of our law involving confidential informants.
Consider the consequences of such a decision in this Commonwealth.
The Majority swiftly eradicates our law with regard to disclosure of the
identity of confidential informants. Despite decades of cases examining
whether a trial court correctly ordered the disclosure (or non-disclosure) of
the identity of a confidential informant, the Majority today tells us that we no
longer need to concern ourselves with such an inquiry. All that needs to be
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disclosed, if anything, is the exculpatory material itself. A trial court no
longer has to order the disclosure of the identity of a confidential informant,
so long as the defense is provided with the information that the informant
would provide and the Commonwealth stipulates to the admission of that
material. There is no basis for such a change in our law.
This breathtaking new precedent substantially hinders a defendant’s
ability to plan and present his or her own defense. Indeed, it puts the
Commonwealth in the driver’s seat of the defendant’s trial defense. For
instance, as is evident in this case, requiring only the disclosure of the
information obtained from the informant, and not the informant’s identity,
means that the defendant cannot call the informant as a witness. The jury
does not get to see, hear and assess the credibility of the informant, nor will
the jury hear about the circumstances surrounding the relevant event or
information. The jury will hear only the curated, isolated and spoon-fed
information that the Commonwealth chooses to deal out. Likely, this
information will come from either the prosecuting attorney or from a police
officer, who undeniably is an agent of the entity that is prosecuting the
defendant.
The jurors will receive the information. But they will get it in a
severely limited and narrow way. The jury will not get to assess and
contextualize the demeanor, emotion, or credibility of the source of the
information. The defense does not get to confront and examine the
informant to establish the who, where, how, when, and why that give
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substance to any and all testimony. The Majority’s claim that this procedure
grants a defendant the “unfettered ability” to present the information
through a stipulation is baffling and inexplicable. Id. at 14. It is
oxymoronic to assert that one has the unfettered ability to present
information when the only way to present that information is by the cold
reading of a stipulation. There is nothing “unfettered” about it. It is about
as fettered as fettered can be.
The Majority also claims that “we find it untenable that the CI-2 could
possibly provide any additional information that would assist Appellee in his
defense of the conspiracy charge.” Id. at 19 n.5. This assertion is based
upon the speculation that the only information that the CI had was provided
to the police. This fundamentally misapprehends the purpose of disclosing
the identity of informants in the first place. When required by law, courts
order the Commonwealth to disclose the identity of the informant so that the
defense can locate that person, question him or her about the information
that has been provided, attempt to ascertain whether the informant has any
exculpatory information, and then call that person as a witness for the
defense. To my knowledge, this Court has no record of a discussion with the
informant that would enable us to conclude that the defense has all of the
information that could possibly be provided. We simply have no way of
knowing that this is in fact the case. All we know for certain is that the
stipulation would provide Jordan and the jury with all of the information that
the Commonwealth knows, not with all of the information that the CI knows.
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This is one reason why we require the disclosure of the identity of
confidential informants and not simply the information that they have
relayed to the police.
There is no basis for the Majority to rewrite our laws with regard to the
disclosure of confidential informants.1 This infirmity exists even where the
Commonwealth offers to stipulate to the information. It requires little
imagination to realize that this device closes the door to the defendant’s
ability to determine whether the informant has additional exculpatory
information, and to the defendant’s ability to put on a full and complete
defense. I would apply our traditional standards of law to determine
whether the trial court abused its discretion in ordering the disclosure, and I
would not rewrite those rules or redefine the applicable terms in doing so.
Those governing standards, as cited by the majority and set forth in
Commonwealth v. Bing, 713 A.2d 56 (Pa. 1998), are as follows:
This Court has adopted the guidelines articulated by the United
States Supreme Court in Roviaro v. United States, 353 U.S.
53 (1957), to guide trial courts in the exercise of their discretion
in cases where, as here, the defendant requests the identity of a
confidential informant who is also an eyewitness:
We believe that no fixed rule with respect to disclosure of
the confidential informant’s identity is justifiable. The
problem is one that calls for balancing the public interest in
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1
The Majority initially offers these changes in the context of its Brady
discussion. See Maj. Op. at 13-14. However, the Majority later extends
these observations to its discussion of materiality for purposes of
Pa.R.Crim.P. 573.
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protecting the flow of information against the individual’s
right to prepare his defense. Whether a proper balance
renders the nondisclosure erroneous must depend on the
particular circumstances of each case, taking into
consideration the crime charged, the possible defenses,
the possible significance of the informer’s testimony and
other relevant factors.
Commonwealth v. Carter, 233 A.2d 284, 287 (Pa. 1967)
(quoting Roviaro, 353 U.S. at 60-62).
In Carter, this Court held that the balance tips in favor of
disclosure where guilt is found solely on police testimony based
on a single observation, where testimony from a more
disinterested source, such as the informant, is available. Id. at
61. However, where other corroboration of the officer’s
testimony exists, disclosure of the informant’s identity is not
necessarily required. Id. at 59. This Court also recognized the
importance of the Commonwealth’s qualified privilege to
maintain the confidentiality of an informant in order to preserve
the public’s interest in effective law enforcement. Id.;
Commonwealth v. Herron, 380 A.2d 1228 (Pa. 1977). Also,
the safety of the confidential informant is a controlling factor in
determining whether to reveal his identity.
Further, before an informant’s identity may be revealed, the
defendant must establish pursuant to [Rule 573(B)] that the
information sought is material to the preparation of the defense
and that the request is reasonable. Commonwealth v.
Roebuck, 681 A.2d 1279, 1283 (Pa. 1996). Only after a
showing by the defendant that the information sought is material
and the request is reasonable is the trial court called upon to
exercise its discretion to determine whether the information is to
be revealed. Id. at 478.
Id. at 58 (citations modified). Notably, the inquiry addressed by the United
States Supreme Court, the Pennsylvania Supreme Court, and this Court
involved whether the prosecution must disclose the identity of the informant,
not just the information relayed to police officers by that informant.
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Bing also referenced Pa.R.Crim.P. 573(B). That Rule states, in
pertinent part, as follows:
if the defendant files a motion for pretrial discovery, the court
may order the Commonwealth to allow the defendant’s attorney
to inspect and copy or photograph any of the following requested
items, upon a showing that they are material to the
preparation of the defense, and that the request is
reasonable:
(i) [t]he names and addresses of eyewitnesses[.]
Pa.R.Crim.P. 573(B)(2)(a)(1) (emphasis added).
Our inquiry is clear. We must determine whether the trial court
abused its discretion2 in determining that the identity of CI-2 was material to
the “preparation” of the defense, and whether the request was reasonable. I
would hold that the trial court did not abuse its discretion.
In my view, this case falls under Carter’s instruction that disclosure is
warranted when information could come from a source “more disinterested”
than the police officer, i.e., the informant. Carter, 233 A.2d at 287. I also
have no doubt that the information is material. As noted above, materiality
cannot be swept under the rug by changing the inquiry or by limiting the
type of information that can be provided. Nor is it accurate to say that the
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2
“An abuse of discretion is more than just an error in judgment, and the
trial court will not be found to have abused its discretion unless the record
discloses the judgment exercised was manifestly unreasonable or the result
of partiality, prejudice, bias or ill-will.” Commonwealth v. Sharp, 792
A.2d 1266, 1268 (Pa. Super. 2002). Thus, we must find more than mere
error or disagreement before we may find an abuse of discretion.
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identity of the informant is immaterial because the Commonwealth agreed to
withdraw the delivery charge that resulted from CI-2’s information. Jordan
still was charged with conspiracy, which, according to the criminal
information, included the actions that occurred on September 10, 2010. The
conspiracy that occurred on that date undeniably involved Lofton, who CI-2
described as the person who sold him drugs on that date, as a co-
conspirator. CI-2 is the only person who could testify as to what actually
occurred inside the residence on that date, and whether Jordan engaged in
any behavior therein that would implicate him as a conspirator with Lofton.
Rule 573 cannot be cast aside simply because at trial Jordan would be
able to present (through stipulation) that Lofton was the person who sold
the drugs to CI-2. First, the informant may have additional information that
would exonerate Jordan. Second, the inquiry is not limited only to the
defense put on at trial. Disclosure is required under the rule if the identity of
the informant is material “to the preparation of the defense.” Pa.R.Crim.P.
573. It was reasonable for Jordan to request the disclosure of the identity of
CI-2 so that Jordan could prepare his defense, determine what other
evidence CI-2 might possess, and decide whether CI-2 could serve as a
witness for the defense at trial. It is possible that CI-2 had no additional
information to assist Jordan. We do not know. We cannot say for certain
that he did not, as the Majority implicitly concludes. What we do know is
that CI-2’s identity is material because Jordan still faces a conspiracy charge
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that might implicate the events that occurred inside the residence, and that
it was reasonable for Jordan to request disclosure.
For these reasons, I would hold that the trial court correctly ordered
the disclosure of CI-2’s identity. At a very minimum, the order was not an
abuse of discretion. The Majority has not demonstrated in any manner that
the decision was based upon prejudice, bias, ill-will, or was so far beyond
the boundaries of the court’s discretion that a discernible abuse occurred.
Having concluded that the underlying order was not an abuse of
discretion, I now turn my attention to the prosecutor’s unfortunate behavior,
and whether the sanction for that behavior was justified. I harbor no doubts
that it was.
“We review a trial court’s finding of contempt for an abuse of
discretion.” In re York County District Attorney’s Office, 15 A.3d 70, 73
(Pa. Super. 2010). Demonstrating that a trial court abused its discretion is a
hefty burden: “An abuse of discretion is more than just an error in
judgment, and the trial court will not be found to have abused its discretion
unless the record discloses the judgment exercised was manifestly
unreasonable or the result of partiality, prejudice, bias or ill-will.”
Commonwealth v. Sharp, 792 A.2d 1266, 1268 (Pa. Super. 2002) (citing
Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001)).
Additionally, in a criminal case, a trial court enjoys “broad discretion in
formulating remedies for a failure to comply with discovery requirements.”
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Commonwealth v. Galloway, 771 A.2d 65, 68 (Pa. Super. 2001) (quoting
Commonwealth v. Thiel, 470 A.2d 145, 150 (Pa. Super. 1983)).
Pennsylvania Rule of Criminal Procedure 573(E) outlines the actions
that a trial court may take upon a violation of a discovery 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 this rule, the court may order such party to permit
discovery or inspection, may grant a continuance, or may
prohibit such party from introducing evidence not disclosed,
other than testimony of the defendant, or it may enter such
other order as it deems just under the circumstances.
Pa.R.Crim.P. 573(E) (emphasis added). Here, in light of the prosecutor’s
open refusal to obey the trial court’s order and to disclose the identity of the
informant, the court prohibited the prosecutor from introducing evidence
related to the informant, as well as evidence pertaining to the subsequent
execution of a search warrant. Unquestionably, the court’s order had the
practical effect of dismissing all of the charges relating to Jordan’s conduct
on September 10, 2010. I would hold that the sanction, while severe, was
warranted due to the prosecutor’s flagrant violation of the trial court’s
discovery order. As such, in my view, the court’s sanction was not an abuse
of discretion.
“Although not expressly included in the list of remedies, a trial court
does have the discretion to dismiss the charges, but only for the most
extreme and egregious violations.” Commonwealth v. Hemmingway, 13
A.3d 491, 502 (Pa. Super. 2011) (citing Commonwealth v. Burke, 781
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A.2d 1136, 1144 (Pa. 2001)). In Hemmingway, the Pennsylvania Supreme
Court noted in a parenthetical the following quote from Commonwealth v.
Shaffer, 712 A.2d 749 (Pa. 1998):
[T]he sanction of dismissal of charges should be utilized in only
the most blatant cases. Given the public policy goal of
protecting the public from criminal conduct, a trial court should
consider dismissal of charges where the actions of the
Commonwealth are egregious and where demonstrable prejudice
will be suffered by the defendant if the charges are not
dismissed.
Hemmingway, 13 A.3d at 502 (quoting Shaffer, 712 A.2d at 752)
(emphasis added). Here, the prosecutor openly refused to follow the trial
court’s order. The prosecutor’s actions could not have been more blatant.
On July 19, 2011, the trial court held a hearing on Jordan’s motion to
produce the identities of the two confidential informants utilized during the
investigation of Jordan’s illicit activities. After receiving testimony, the trial
court ruled that the first confidential informant’s identity would not be
released. However, the court made the following factual findings and
conclusions of law with regard to the second informant:
There is a second CI that is at issue in this matter. The
confidential informant we will identify as CI-2.
The witness to this matter was Police Officer Mitchell. This
incident took place on the third day, September 10, 2010.
Officer Mitchell testified that he watched CI-2 go to the location
of 2737 Judson Street where [he/she] had a meeting with the
defendant and another man identified as James Lofton. And he
saw all three of them go inside the dwelling of 2737 Judson.
Upon entering the house, the CI exited shortly thereafter and
turned over two chunks of crack cocaine. The CI had been used
twenty to twenty-five times and virtually all uses had led to
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arrests and convictions. The officer testified this CI does have
family in the area and also would be at risk for physical harm if
[his/her] name were revealed.
The officer on cross-examination testified that he prepared the
PARS Report along with the other officers with information
provided by the other officers. He did testify that upon
information received from the CI, identified as CI-2, that Lofton
was the individual who sold the CI, identified as CI-2, drugs on
September 10, 2010.
Based upon the testimony of Officer Mitchell in this CI motion,
this Court feels that it is necessary for the identity of CI-2 to be
revealed as [he/she] is the only individual who can provide that
information and it would not be hearsay in a motion. So the
Court grants the defendant’s CI motion as to the confidential
informant that was used on the date of September 10, 2010.
Notes of Testimony (“N.T.”), 7/19/2011, at 74-75. The prosecutor withdrew
the delivery charge pertaining to the sale that occurred inside the home on
that date, but decided to continue to pursue a charge of conspiracy, which
was predicated upon Jordan’s relationship with Lofton, who was the person
who actually sold the crack to the informant. Id. at 76-77. The prosecutor
further agreed to stipulate at trial to the informant’s statement that Lofton
was the person who sold the crack.
However, with regard to the trial court’s explicit order to reveal the
identity of the informant, the prosecutor stated on the record to the trial
court that “[w]e will not be providing that name and I will not be going
forward on that particular sale to Mr. Lofton by that CI.” Id. at 81. When
defense counsel reminded the trial court that the order required the
prosecutor to disclose the informant’s name, the prosecutor interjected: “I’m
not giving him the name of that second CI.” Id. at 82. Throughout the
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hearing, the prosecutor maintained the position that, because the police
officers could testify as to what was recovered and observed during the
execution of the search warrant, the prosecutor did not need to disclose the
identity of the informant, and that she could prove the conspiracy charge
with the officers’ testimony alone. Apparently, the prosecutor believed that,
if she could prove her case with other evidence, she could then ignore the
trial court’s explicit order. Id. at 84.
A second hearing was held on September 1, 2011. Once again,
judicial mandate notwithstanding, the prosecutor persisted unrelentingly in
the position that she could unilaterally deem the disclosure order optional or
non-binding. The prosecutor simply declared: “I can still proceed on all the
dates. And, I will only be presenting evidence of what the officers
themselves observed.” N.T., 9/1/2011, at 6. The trial court reminded the
prosecutor that the court had granted the motion, and admonished her as
being “incorrect.” In the face of the court’s warning, the prosecutor
nonetheless insisted that “we can still go forward.” Id. at 6-7.
The prosecutor attempted to circumvent the disclosure order by
arguing that, because she would not be introducing any evidence pertaining
to the informant, both parties had the same evidence in their files for trial
purposes and, therefore, Jordan would not be put at a disadvantage.
However, it already had been revealed that the informant had some
exculpatory information. Defense counsel sought to interview the witness to
determine whether the informant had observed other evidence within the
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home that would exculpate Jordan, particularly with regard to the conspiracy
charge. To this claim, the prosecutor defiantly stated: “The CI will never be
produced.” Id. at 8. In the face of this open and intentional disregard of
the disclosure order, the trial court found the prosecutor to be in contempt,
and ordered that she be prohibited from introducing any evidence related to
the events that occurred on September 10, 2010. Id. at 11.
Like all others, a prosecutor is bound to adhere to orders issued by a
court of competent jurisdiction.3 Chaos would result if any lawyer or litigant
could, willy-nilly, disregard or flout valid court orders at his or her own
whim.4 This is not an instance of substantial compliance, accident, mistake,
or misinterpretation of an order. The fact of the matter is that the
prosecutor here flatly disobeyed the trial court’s directive, and did so
knowingly and willfully in open court. When a court issues an adverse order,
a litigant has multiple options. The litigant can: (1) follow the order; (2)
ascertain the appealability of the order, and pursue an appeal if available; or
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3
Indeed, our Supreme Court has codified the “Special Responsibilities of
a Prosecutor.” Pennsylvania Rule of Professional Conduct 3.8. See id.,
comment (“A prosecutor has the responsibility of a minister of justice and
not simply that of an advocate.”).
4
See Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev.
457, 457 (1897) (“The reason why it is a profession, why people will pay
lawyers to argue for them or to advise them, is that in societies like ours the
command of the public force is intrusted to the judges in certain cases, and
the whole power of the state will be put forth, if necessary, to carry out their
judgments and decrees.”).
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(3) sever the portion of the case affected by the order and proceed, if
possible, with the remainder of the cause of action or charges. Simply
saying “no” to the adverse order, and openly refusing to obey it, is not one
of the permissible actions that a litigant may take. We are a government of
laws, not of men or women.
Jordan also suffered demonstrable prejudice as a result of the
Commonwealth’s non-disclosure. Jordan was denied access to the only
available witness who could exonerate him on one charge, and quite possibly
on others. Hence, per Hemmingway and Shaffer, the prosecutor’s actions
were blatant, egregious, and prejudicial. In such a situation, it cannot be
said that the trial court’s sanction was manifestly unreasonable. See Sharp,
supra.
In reaching this decision, I have had occasion to review our prior
decision in In re York County District Attorney’s Office, which bears a
facial similarity to the present case. There, the trial court had granted a
defense motion to disclose the identity of a confidential informant. 15 A.3d
at 71. The prosecutor unsuccessfully sought reconsideration of the order,
but did not appeal the order. Instead, the prosecutor refused to comply with
the order. The trial court found the prosecutor to be in contempt, but
initially did not impose a fine. The parties reached a plea agreement.
However, the trial court refused to accept the plea, and ordered the parties
to trial. Instead of complying with the order, the Commonwealth chose to
nolle prosse the charges with prejudice. Id.
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The trial court then held a sanctions hearing on the prosecutor’s
contempt. At the conclusion of the hearing, the trial court fined the
contemptuous prosecutor $5,000. Id. On appeal, we reversed the fine. Id.
at 73. In doing so, we noted that, when a prosecutor violates a discovery
order, “[t]he remedy in the criminal proceeding is limited to denying the
prosecution the fruits of its transgressions.” Id. (citing Commonwealth v.
King, 932 A.2d 948, 952 (Pa. Super. 2007)). Applying this principle, we
held that, once the prosecutor nolle prossed the charges, he no longer was
able to benefit from his transgressions, and that the contempt should have
been dissolved at that point. Id.
The facts of York clearly are distinguishable from those here, and, for
that reason, York is not controlling. In York, rather than obey the order,
the prosecutor decided to nolle prosse the charges in their entirety. The
prosecutor realized that he had two choices: either comply with the order, or
decline to prosecute the defendant entirely. The prosecutor chose the latter.
Instantly, by contrast, the prosecutor nolle prossed only the delivery
charge, and attempted to persevere in the prosecution on the remaining
conspiracy charge. In York, there was no basis to impose a sanction,
because the prosecutor already had been sanctioned by being forced to
dismiss the charges against the defendant. Instantly, by contrast, the
prosecutor attempted simultaneously to disobey the order while proceeding
with the bulk of the prosecution. The circumstances of the instant case
differ significantly from those in York.
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Moreover, in York, the prosecutor’s decision to nolle prosse all of the
charges against the defendant denied the prosecutor any benefit from his
transgression. The same cannot be said in the matter sub judice. On
September 10, 2010, the police utilized an informant (the second in this
case) to purchase narcotics from a home in which Jordan was present. That
informant went into the home, and returned minutes later with crack
cocaine. Later that day, the police obtained and executed a search warrant
on that residence. There is sufficient cause for concern that these two
events were connected5 to enable us to conclude that, had the prosecutor
been permitted to introduce the police officer testimony regarding the
execution of the warrant, the prosecutor not only would have escaped
sanction for her blatant disregard of a valid court order, but in fact would
have benefitted from this intentional contempt. For the same reason, the
prosecutor’s stipulation to the informant’s exculpatory statement that Lofton
sold him the crack cocaine would not erase the stain of the contempt in its
entirety, nor afford Jordan the opportunity to seek additional impeaching
testimony.
Here, the prosecutor attempted unilaterally to disregard the order.
When that tactic was unsuccessful, the prosecutor openly refused to comply
with the order. This case deviates meaningfully from York. The actions of
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5
For instance, the police officers obtained and executed the search
warrant on the same days as the informant’s controlled buy from Lofton.
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the informant and the actions of the police officers were sufficiently
intertwined to necessitate suppression of all testimony related to the events
occurring on September 10, 2010. No other remedy could ensure that the
prosecutor did not benefit from her transgressions, nor would any other
remedy serve the interests of justice and vindicate the authority of the
court. The trial court was well within its discretion in imposing this sanction.
For these reasons, I would affirm the trial court. Because the Majority
holds otherwise, I dissent.
Judge Lazarus joins this dissenting opinion.
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