Merit Decision. Requiring the Least Severe Sanction for Discovery Violations Applies to the State As Well As to the Defense. State v. Darmond.

Update: Read here what happened to this case when it was remanded.

On March 21, 2013, the Supreme Court handed down a merit decision in State v. Darmond, 2013-Ohio-966. In a 6-1 decision written by Justice O’Neill, the Court found that the trial court abused its discretion in dismissing this criminal case with prejudice for an inadvertent state discovery violation. Justice Pfeifer dissented. The case was reversed and remanded for further proceedings.  The case was argued January 9, 2013.

Case Background

Demetrius Darmond and his mother-in-law Iris Oliver were jointly indicted and tried together (but represented separately) in a bench trial for various felony drug charges.  The basis for the indictment in the case was a controlled interception by a state agent of a Fed-Ex package containing marijuana sent to Oliver’s address, but not to her name. The package was delivered to Oliver’s residence.  When Darmond picked the package up, he was arrested.  A second similar package was intercepted but not delivered to Oliver’s address because of Darmond’s arrest.

It turned out, though, that there were not just two intercepted packages, but seven—all similarly packaged, all sent from either Phoenix or Tempe Arizona, all from a Kinko’s store.  None of the other five was sent to Oliver’s name or address. The fact that there were five other similar packages sent to different names and addresses was only disclosed for the first time during the agent’s testimony at trial as part of the state’s case.  Both defense counsel and the prosecutor on the case were taken by surprise.

After this disclosure (which the state has conceded was a discovery violation) the defense moved to dismiss the case with prejudice for the state’s failure to disclose the reports and other information about the other five packages.  The defense claimed this evidence was exculpatory; the state argued it was not.  After a recess, the trial judge held a hearing on the matter.  He made no determination about whether the evidence was inculpatory or exculpatory, but declared a mistrial and dismissed the case with prejudice.  The Eighth District Court of Appeals affirmed, finding no abuse of discretion in this ruling.

The Darmond case was accepted both on conflict certification and as a discretionary appeal. The issues are the same. The cases were consolidated. Read the oral argument preview here and the analysis of the oral argument here.

Precedent

Key to this case is the Court’s decision in  Lakewood v. Papadelis . In the second paragraph of the syllabus of that case, the Court held that “[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. ”

Certified Question

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

Answer:  Yes.

Main Reason Why:

The amended version of Criminal Rule 16 mandates this.

Analysis

Lakewood  requires imposition of the least severe  sanction under the circumstances. The Court of Appeals declined to apply Lakewood because it involved a discovery violation by the defense, not, as here, by the state. The Supreme Court majority expressly rejects this analysis, relying heavily on Criminal Rule 16 as amended July 1, 2010. The key provision which helped determine the outcome of the case is in 16(A).  It says, “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.”  The rule places the parties on equal footing. The prosecutor strongly relied on this rule at oral argument, and the Court strongly relied on it in its decision, particularly on the word “remedies.”  The rule says remedies apply equally, which led to the conclusion that the least severe sanction should be the remedy for both sides.

The Dismissal With Prejudice

Criminal Rule 16(L)(1) still gives the trial court considerable discretion in the sanction it chooses to impose for a discovery violation.  But there are a number of reasons why the Court found dismissal of the case with prejudice to be too harsh, and an abuse of discretion (always a very difficult standard to prove.)

In State v. Parson, the Court established three factors to guide a trial court’s discretion in imposing a sanction for a discovery violation. Those factors are(1) whether the prosecutor’s failure to disclose was a willful violation of (former) Crim.R. 16(B), (2) whether foreknowledge of the statement would have benefitted the accused in the preparation of his defense, or (3) whether the accused was prejudiced by admission of the statement.

Applying those factors, the Court found the discovery violation was not willful.  The state was as surprised by it as the defense. But the Court found application of the other two factors equivocal. The trial court never determined whether the undisclosed evidence was inculpatory or exculpatory, so it was unclear that that foreknowledge either would have helped the defendant or that there was prejudice.  The fact that the defendant was out on bond suggests there was no prejudice, although Justice Pfeifer would clearly disagree.  But the Court found that the trial court should have considered less severe sanctions, and failure to do so was an abuse of discretion.

Alternative Sanctions

While the Court did go out of its way to say it was not mandating a specific directive to the trial court under these circumstances, it was clear, as it was from questioning at oral argument, that a continuance to explore the details about the other packages was a reasonable option in this case.  Justice O’Neill specifically asked about this.

Case Disposition

The court of appeals was reversed and the case remanded for further proceedings.

Justice Pfeifer’s Dissent

As is his wont, Justice Pfeifer looked at this case totally differently from his colleagues. He would find Lakewood wholly inapposite to this case, believing that Lakewood  applies only to the sanction of excluding all witnesses in a criminal case.  In Lakewood the sanction for a defense discovery violation was exclusion of all the defendant’s witnesses.  The high court held that that could not be done because it violated the defendant’s Sixth Amendment right to present a defense.

Justice Pfeifer does not think all discovery violations are created equal. The defendant has constitutional rights which the state does not have: “The state’s premise is that the state and the defendants are equals: but the fact is that we have a Constitution because the state and individuals are not equal.” And he clearly finds prejudice to Darmond here. Darmond was indicted twice. The first indictment was dismissed once, for further investigation. He was then re-indicted.

Pfeifer wrote, “Would it be in the best interest of justice to routinely grant long continuances to correct prosecutorial ball-fumbling? How many mistakes are prosecutors allowed in one case before a continuance to allow for further investigation is deemed too weak a sanction?”

Case Syllabus

The holding in Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus, that “[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” applies equally to discovery violations committed by the state and to discovery violations committed by a criminal defendant.

Concluding Observations

I believe this is the first substantive opinion written by Justice O’Neill.  It is extremely well written and easy to follow, and it is very conservative.  It pretty much adopted all the arguments made by the prosecution.

Both Katlin and I called this one for the state.  At oral argument defense counsel overreached when he insisted the state discovery violation was willful.  The prosecutor made very effective use of the amended version of Criminal  Rule 16. Both Justices Lanzinger and O’Donnell asked key questions suggesting that the same discovery sanctions should apply to both sides.  As I expected, the Court criticized the state, although more mildly than I thought it would, for not offering the trial court specific alternative sanctions when it opposed the motion to dismiss.  And the Court did leave this door open:

“We emphasize that we do not hold that a discovery violation committed by the state can never result in the dismissal with prejudice of a criminal case. That option remains available when a trial court, after considering the factors set forth in Parson and in Lakewood, determines that a lesser sanction would not be consistent with the purposes of the criminal discovery rules.”

I found Justice Pfeifer’s dissent quite interesting. But I think one thing that hurt the defense argument in this case was the failure of the trial court to find the undisclosed evidence clearly exculpatory.  When Katlin first worked up the preview, I kept asking her why the evidence should be deemed exculpatory.  That still isn’t clear to me.

 

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