What’s On Their Minds: Must A Trial Court Apply the Least Severe Sanction to State Discovery Violations? State v. Demetrius Darmond.

Update: On March 21, 2013, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On January 9, 2013, the Supreme Court of Ohio heard oral argument in State of Ohio v. Demetrius Darmond, 2012-0081/2012-0195. The case was accepted both on conflict certification and as a discretionary appeal. The cases were consolidated.

The certified question is, “does the holding in  Lakewood v. Papadelis apply equally to instances where the state has committed a discovery violation?” The issue in the discretionary appeal is the same.

The discovery violation in Lakewood was a defense violation–the defendant failed to provide a witness list. As a sanction, the trial court excluded all the defense witnesses. The Ohio Supreme Court held this sanction was a denial of the defendant’s Sixth Amendment right to present a defense. The second paragraph of the syllabus of Lakewood is

“ A trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery. ” 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), syllabus, paragraph 2.

Useful Information in Understanding this Case

State v. Parson, 6 Ohio St.3d 42  453 N.E.2d 689 (1983) (Syllabus)

Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B) * * * and the record does not demonstrate (1) that the prosecutor’s failure to disclose was a willful violation of Crim.R. 16(B), (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3) by permitting such evidence to be admitted.

Criminal Rule 16(A)

Criminal Rule 16 covers discovery and inspection. This rule was amended effective July 1, 2010, so it is different from the rule discussed in Parson and Lakewood.  Here is the pertinent key language for this case:

(A)   Purpose, Scope and Reciprocity. This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large. All duties and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal. Once discovery is initiated by demand of the defendant, all parties have a continuing duty to supplement their disclosures.

Case Background

Demetrius Darmond and co-defendant Iris Oliver were indicted and charged with a number of drug offenses stemming from the controlled delivery of a FedEx package containing marijuana sent to Oliver’s home address in Cleveland, Ohio, but not to her name. Darmond later picked up the package at that address and was arrested.

Ohio Bureau of Criminal Identification and Investigations Agent Patricia Stipek intercepted seven packages containing marijuana, all packaged in the same way, and all originating from Arizona. But only the information on the two packages addressed to Oliver’s residence were turned over to the defense. Information on the other five similar packages was not turned over to Darmond during discovery. Neither the state nor Darmond was aware of the other five packages. Both sides first learned of this information during Stipek’s testimony as the state’s first witness at the bench trial of the defendants.

Darmond argued that the five other similarly packaged shipments of marijuana were exculpatory evidence and should have been turned over by the state. Darmond moved to dismiss the charges with prejudice since the discovery violations arose after jeopardy had attached. The judge held a hearing, and without making any finding about whether the additional evidence was inculpatory or exculpatory, granted Darmond’s motion to dismiss with prejudice. The Eighth District Court of Appeals affirmed. Read the oral argument preview of the case here.

At Oral Argument

Prosecutor’s Argument

The state conceded a discovery violation, but argued the prosecution received too severe a sanction for the violation in this case. While there are cases in which dismissal would be an appropriate remedy for a state discovery violation, this case is not one of them. This violation was not willful, as the state had no awareness of the other packages until the agent testified. While the state did not formally object to the dismissal, the prosecutor did argue strenuously against it on the grounds that the undisclosed packages were not material and thus should not require the most severe sanction possible.

Criminal Rule 16(A), as amended in July 2010 requires equitable treatment for discovery violations by both the state and the defense, and Lakewood should apply equally to both sides. Also, Lakewood requires the trial court to consider less severe sanctions, regardless of what the prosecutor requests. The trial court abused its discretion in this case in not doing so.

Defense Arguments

Appellate counsel argued on behalf of Darmond, while the trial counsel in the case argued on behalf of co-defendant Oliver. They split their time, with appellate counsel taking the lion’s share. He argued there was no abuse of discretion in this case.  The trial judge went out of his way to give the parties the chance to put everything they wanted on the record. He insisted (with much pushback from Chief Justice O’Connor) that there was a willful discovery violation in this case, not in the sense of having  information and failing to disclose it, but in failing to do the due diligence that amended criminal rule 16 now imposes on both parties. The case law on willfulness is pre-rule amendment law. Willfulness now must be determined in light of the due diligence requirement of Rule 16. The government is presumed to have knowledge of its investigation, and failure to do so is at least a violation of the rule. The state dismissed the indictment once for further investigation, re-filed it, and yet still was unaware of the other packages.  In Lakewood the Court was trying to fashion a remedy to protect the defendant’s constitutional rights and the right to present a defense.  That just is not the case here.

Oliver’s lawyer argued that discovery violations by the state should be treated differently from discovery violations by the defense, because the state has all the resources at its command, and is taking away a person’s liberty.  He backed away from saying the violation in this case was willful, but argued there was a lack of due diligence by the state here, and that the trial court had spent a lot of time listening before deciding on dismissal as a sanction, and did not abuse its discretion in doing so.

What Was on Their Minds

The Obligations of the Prosecution

What did the prosecution ask for at the hearing on the discovery violation, asked Chief Justice O’Connor. (answer—state made no request but did argue against dismissal)

Wouldn’t the burden be on the state to ask for a less severe sanction, asked Justice Pfeifer.

Does it make any difference that the state has the burden of proof and the defense has no burden in a criminal case, Justice Lanzinger asked. If the state had objected and asked for a lesser sanction, would there still be an abuse of discretion ?

Since the agent was in the courtroom when all this came to light, why didn’t the prosecution just put her on the stand and straighten all this out then and there, asked Justice Pfeifer.

Was the Violation Willful in this Case?

Asked Justice O’Neill. The state clearly said no, but Darmond’s counsel later got into a prolonged back and forth with the Chief Justice on this point, arguing that it was. The Chief noted quite sharply that neither the trial court nor the appeals court had found the violation to be willful, suggesting that matter was closed. Justice O’Neill followed up asking whether, if willfulness was a question of fact that the trial court was in the best position to determine, but no one had asked the trial court to do so, how could defense counsel now ask the Supreme Court to do this. The Chief asked if defense counsel’s entire argument turned on this willfulness determination.  Finally came this colloquy:

The Chief: “would you agree that if this was not a willful violation, you agree this was too severe a sanction?”

Defense counsel: “I do not.”

What was the Appropriate Sanction Here?

Justice Pfeifer noted that Lakewood uses words “consider and apply” the least restrictive sanction. Was the state arguing that the trial court must always apply the least restrictive sanction?

What less severe sanction would have been available to the court, asked Justice O’Neill (answer—a continuance) Did the state proffer that, he then asked (answer-no). Could exclusion be another remedy? Was this a Brady violation? (answer-no).Was the state taking the position that there had to be a Brady  violation before there could be a dismissal? (answer-no.)

In light of the fact that the trial court was unable to determine if the withheld evidence was inculpatory or exculpatory, wasn’t this an awfully extreme remedy, asked Justice O’Neill in a key exchange of the day.

Since there was not a Brady violation in this case, shouldn’t the Court require a less severe sanction, asked Justice O’Donnell.

Can there be an abuse of discretion by the trial court in imposing a sanction when the state never requested a continuance or any lesser sanction, asked Justice Lanzinger.

Was there any finding about lack of due diligence in this case, asked Justice O’Neill.

If the state made no objection and offered no specific proposal, are we under a plain error rather than an abuse of discretion standard, asked Justice French.

Equal Footing of the Parties

Should both sides be on equal footing, asked Justice Lanzinger.  Should Lakewood apply equally to both parties? Under Criminal Rule 16 don’t both parties have the obligation to provide discovery?

Since Rule 16 imposes the same discovery duty on both sides, why shouldn’t state violations carry the same gradations of sanctions as those by the defense, asked Justice O’Donnell, in another key exchange of the day.

What Happens Next

What happens if the Court agrees with the prosecution, asked Justice O’Donnell.  What happens to this case?  Especially since jeopardy has already attached, mused Justice O’Neill. Are you asking to re-begin the trial? (answer, by the prosecutor, in effect, yes.)

How it Looks from the Bleachers

To Professor Bettman

The fact that this was a discovery violation is not contested. This looks like a win for the state, although the conduct of the prosecutor in failing to object to the dismissal or to offer an alternative lesser sanction likely will be criticized. The Court may even find a lack of due diligence on the part of the state. But the Court will probably find that in the absence of a willful violation (and there was no finding by either the trial court nor the appeals court that there was), dismissal was too severe a sanction in this case, particularly in the absence of any finding by the trial court about whether the undisclosed discovery was exculpatory. The language in Criminal Rule 16 about reciprocal duties and remedies actually is in harmony with the state’s proposed proposition of law that Lakewood should apply equally to both sides. Clearly, there are situations in which a state discovery violation would be treated more harshly than one by the defense, but that doesn’t mean Lakewood shouldn’t apply to both parties equally, nor is there any reason why the case law on willfulness should not apply despite the amendment to the rule.  Darmond’s counsel clearly overreached trying to equate lack of due diligence with willfulness, and thoroughly irritated Chief Justice O’Connor.

To Student Contributor Katlin Rust

It looks like this one goes to the state.  Given the nearly universal application of the Lakewood standard to both parties and Crim. R. 16(A), the law appears to support the state’s proposition that sanction gradations should be applied equally.  Several Justices focused on the failure of the state to proffer any solution to the trial court, a fact which will likely be mentioned but will not affect the final decision.  The Court did not appear to accept Darmond’s argument that there was indeed a willful violation on behalf of the state, as shown by the state’s lack of due diligence.  Without a willful violation, a fact accepted by the lower courts, the Court will likely find the dismissal too severe.


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