State v. Wade

¶ 1. The Windham County State’s Attorney appeals from the Windham District Court’s dismissal of an aggravated assault conviction. The case was dismissed to sanction the Wind-ham County State’s Attorney’s Office for a discovery.violation, as well as repeated violations in other cases. We conclude that the trial court abused its discretion by dismissing the conviction because the discovery violation did not prejudice defendant, and therefore we reverse.

¶ 2. On June 26, 2000, Windham County State’s Attorney Dan Davis filed charges against defendant Sean Wade for aggravated assault arising from an altercation in a Bellows Falls bar. Wade got into an argument with another bar patron, a scuffle ensued, and Wade hit the victim several times over the head with a beer bottle. Wade claimed he acted in self defense and feared for his life, believing that the victim had a gun.

¶ 3. Trial was set for April 25 and 26, 2001. In October 2000, the court convened a status conference and inquired about the parties’ discovery progress. Davis informed the court that his office had disclosed to the defense everything the court’s discovery order required him to disclose. Nevertheless, during cross-examination of the investigating officer at trial, the defense learned that two other officers were present at the scene following the incident. After the prosecution rested, the defense orally moved to dismiss the charges, citing the State’s failure to disclose the identity of the other two officers during discovery. Davis defended the omission by explaining that he had not spoken with the officer before the morning of trial, and suspected that no one in his office had done so either. Davis said he relied on a form his office gives to the police to obtain the identification of all witnesses to an alleged offense, and that, in Wade’s case, the form did not show that other officers were present at the scene. The court informed the parties that it would take Wade’s motion to dismiss under advisement and recessed for a short break.

¶ 4. When the court reconvened, Wade’s counsel informed the court that during the break Davis had learned the names of the two previously undisclosed officers and had provided them to the defense. Through his inquiries, Davis also learned that a written report and a videotape of defendant’s arrest existed. Neither piece of evidence had been disclosed or provided to the defense during discovery. Davis provided a copy of the written report to the defense and to the court, which reviewed the report in camera. The court instructed the state’s attorney to make the two officers available for deposition before trial the following morning so the defense could discover if they had any relevant information, and deferred ruling on Wade’s motion to dismiss.

¶ 5. The next day, the parties informed the court that Wade’s defense team had reviewed the report, watched the videotape, and obtained additional information about the incident from the two previously undisclosed police officers. Regarding the overnight discovery, the parties told the court that they had prepared a stipulated statement by one of the officers to be read to the jury. The parties agreed that the other officer would testify in person. At Wade’s request, and without objection from the State, the court postponed its ruling on the motion to dismiss until after the jury returned its verdict.

¶ 6. The jury eventually found Wade guilty. After the verdict, the parties filed post-trial memoranda on the motion to dismiss. Wade’s counsel argued for dismissal on the grounds that the discovery violation in Wade’s case was part of a longstanding pattern of neglect and misconduct in discovery matters by members of the Windham County State’s Attorney’s Office. To demonstrate the alleged pattern of discovery abuse, the defense memorandum identified ten prosecutions in the Windham District Court where the State’s discovery practices were a problem. On May 10, 2001, the trial court granted Wade’s motion. The court found Davis’s discovery violation in Wade’s case “clear, serious, and inexcusable.” The violation was not an isolated incident, the court noted, but was part of “a pattern of neglect in discovery practices.” Citing seven of the ten cases Wade identified in his memorandum, plus three additional cases prosecuted in the Windham District Court, the court found that the pattern of discovery misconduct began in 1999 and continued even after the state’s attorney’s omission in this case became known.¹ The discovery violations the state’s attorney and some of his deputies committed included late disclosure of exculpatory evidence, in some cases a year to sixteen months late. The discovery violations resulted in admonishments, continuances, evidentiary exclusions, and dismissals.

¶ 7. Although the court found a pattern of discovery misconduct over the years, it found that in Wade’s case the State’s late disclosures did not prejudice Wade because he used the untimely disclosed evidence at trial. The court also found, however; that the prosecution’s dilatory discovery practices in case after case caused system-wide prejudice in Wind-ham County. It noted that Davis had responded to the charges of discovery misconduct in Wade’s case by blaming the relevant investigating law enforcement officers. Describing its action as “extraordinary,” the court found that its prior admonitions and escalating sanctions had failed to cure the state’s attorney’s discovery problems. The court concluded that dismissal of the prosecution against Wade, with prejudice, was necessary to accomplish the goals of the discovery rules. The State timely appealed the court’s ruling.

¶ 8. Although Davis admits that he violated V.R.Cr.P. 16 in this case by not obtaining relevant information from the investigating officer within the discovery deadline, he does not concede that his office has demonstrated “a pattern of neglect in discovery practices.”

¶ 9. We review the trial court’s ruling on Wade’s motion to dismiss for an abuse of discretion. See State v. Passino, 161 Vt. 515, 521, 640 A.2d 547, 550 (1994) (Supreme Court reviews trial court’s sanctions for discovery violations under abuse-of-discretion standard). The trial court abuses its discretion when it exercises it on grounds that are clearly unreasonable or untenable. State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988). Here, although we are sympathetic to the trial court’s apparent frustration with the state’s attorney, we conclude that the court abused its discretion by rejecting the jury’s verdict and dismissing the case against Wade.

¶ 10. The state’s attorney argues that dismissal in this case was an abuse of the court’s discretion because defendant did not show prejudice flowing from- the prosecution’s discovery violation. The State articulates the correct legal standard. Even if a defendant establishes a violation of the prosecution’s discovery obligations, the defendant still must demonstrate that the violation prejudiced his defense in some meaningful manner to justify relief. State v. Jones, 160 Vt. 440, 446, 631 A.2d 840, 845 (1993); Parker, 149 Vt. at 405, 545 A.2d at 519; State v. Sird, 148 Vt. 35, 39, 528 A.2d 1114, 1116 (1987); State v. Lombard, 146 Vt. 411, 416, 505 A.2d 1182, 1185 (1985); State v. Cheney, 135 Vt. 513, 515, 380 A.2d 93, 95 (1977); see also V.R.Cr.P. 52(a) (Court must disregard errors that do not affect defendant’s substantial rights); State v. Sherwood, 174 Vt. 27, 31-32, 800 A.2d 463, 466 (2002) (unless police misconduct prejudiced defendant, dismissal is not warranted). There is no real dispute that Wade did not meet that standard in this case. Nevertheless, Wade and amicus curiae American Civil Liberties Union Foundation of Vermont insist that notwithstanding the lack of prejudice, dismissal was warranted to deter future prosecutorial misconduct. We disagree. Tossing out a conviction in the absence of prejudicial error to the defendant is not permitted under any of our cases. Further, as the United States Supreme Court explained in United States v. Hasting, “deterrence is an inappropriate basis for reversal... where means more narrowly tailored to deter objectionable prosecutorial conduct are available.” 461 U.S. 499, 506 (1983); see also In re F.E.F., 156 Vt. 503, 515, 594 A.2d 897, 905 (1991) (discovery sanctions should not be harsher than necessary to fulfill goals of discovery). We conclude that dismissal of a prosecution after a jury’s guilty verdict to redress a nonprejudicial discovery violation exceeds the bounds of the court’s discretion. Reversal is, therefore, required.

¶ 11. While any justice or judge can, of course, refer a complaint against a lawyer to the Professional Responsibility Board, we regret that the concurrence has ignored the requirements of confidentiality set forth in our Administrative Order No. 9, Rule 12, and has done so in the public forum of a Supreme Court decision.²

Reversed and remanded for farther proceedings consistent with the reinstated jury verdict.

1 The court found that while Wade’s motion to dismiss was pending, the State disclosed the existence of crucial evidence in a petit larceny prosecution — a victim’s statement alleging an offense date different from the date in the information. The disclosure came on the first day of jury trial and sixteen months after the discovery deadline had passed.

2 The concurrence justifies the referral to the Professional Responsibility Board by noting that this Court has made such a referral in a previous case, State v. Hohman, 138 Vt. 502, 506, 420 A.2d 852, 855 (1980). Appellant’s first claim of error in Hohman was the trial court’s failure to disqualify the state’s attorney for alleged unethical pretrial conduct. We held the court erred in denying the motion to disqualify and that it was error for the state’s attorney to fail to disqualify himself. Concomitant to our decision, we referred the matter to the Professional Conduct Board. In the case at bar, the only legal issue is whether the court erred in dismissing a jury verdict of guilt without a showing of prejudice.