State v. Wesco, Inc.

State v. Wesco, Inc. (2005-278); 180 Vt. 345; 911 A.2d 281

2006 VT 93

[Filed 08-Sep-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 93

                                No. 2005-278


  State of Vermont                               Supreme Court

                                                 On Appeal from
       v.                                        District Court of Vermont,
                                                 Unit No. 2, Chittenden Circuit

  Wesco, Inc. and Odessa Corporation             February Term, 2006


  Michael S. Kupersmith, J.

  William H. Sorrell, Attorney General, and Mark J. Di Stefano and Jeanne
    Elias, Assistant Attorneys General, Montpelier, for Plaintiff-Appellant.

  Robert F. O'Neill and Heather Rider Hammond of Gravel and Shea, Burlington,
    for  Defendants-Appellees.


  PRESENT:   Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and 
             Allen, C.J. (Ret.),  Specially Assigned

        
       ¶  1.  REIBER, C.J.   In this interlocutory appeal, the State of
  Vermont appeals a discovery order of the Chittenden District Court. 
  Appellees Wesco Incorporated and Odessa Corporation, ("Wesco"), owners and
  operators of numerous gas stations in Vermont, seek discovery to support
  their claim of selective prosecution against criminal charges of recklessly
  releasing gasoline into the environment at the Winooski Exxon gas station
  in Winooski, Vermont, which they owned and operated when the alleged
  releases occurred.  After our decision in State v. Simoneau, 2003 VT 83,
  176 Vt. 15, 833 A.2d 1280, the district court reversed its earlier order,
  which had denied the discovery for failure to make a threshold showing of
  selective prosecution, and ordered the State to produce the materials
  sought by Wesco. We agree with the State that the trial court erred in
  interpreting our decision in Simoneau as applied to discovery in a
  selective prosecution case, and reverse.  The State also appeals the
  court's decision to allow Wesco to depose state computer systems
  administrators to discover whether it is possible to resurrect certain
  emails Wesco believes existed at one time but which the State is unable to
  produce.  We reverse that ruling as well. 
   
       ¶  2.  This case, part of an ongoing criminal matter with which we
  are familiar, Wesco, Inc. v. Sorrell, 2004 VT 102, 177 Vt. 287, 865 A.2d 350, concerns discovery disputes in a criminal action in which the Attorney
  General's Office (AGO) filed a twenty-seven count information charging
  Wesco with recklessly releasing gasoline at its Winooski station in
  violation of Vermont's criminal environmental statutes.  For of a number of
  reasons, which the State argues are unsupported by the record, Wesco began
  to suspect that it was being targeted by the State for prosecution.  Wesco
  theorizes that it became a retaliatory target after Wesco's president,
  David Simendinger, exercised his First Amendment rights by testifying
  against a proposed fee increase that would fund a regulatory program of the
  Agency of Natural Resources (ANR); the State charged Wesco two months after
  that testimony but almost three years after the leaks allegedly occurred. 
  Wesco alleges that its suspicions began after it conducted written
  discovery and depositions of State witnesses about the "pre-charging
  investigation into the Winooski Exxon and the Hilltop Texaco, and about the
  process and method of the referral of the investigation from ANR to the
  [AGO]."  The Hilltop Texaco is another gas station in a different location,
  owned and operated by Wesco, which was investigated but not charged.  Wesco
  also asserts that, from depositions, it "discovered that certain relevant
  e-mails relating to the investigation into the Winooski Exxon had been
  deleted and certain e-mails that were produced referenced other messages
  that were missing, including e-mail correspondence to and from the [AGO]." 
  Finally, Wesco argues that State employees were never told not to destroy
  e-mail regarding this prosecution, and that its own employees and corporate
  officers received "poor treatment" during the execution of the search
  warrants.  In return, the State argues that Wesco has produced no evidence
  in support of its theory, and that Wesco's citations to the record merely
  refer to Wesco's own arguments in written briefs and in oral arguments
  before the trial court.
         
       ¶  3.  In support of its selective prosecution theory, Wesco seeks to
  compel the State to provide a number of discovery items, three of which are
  the subject of this appeal: (1) documents regarding the AGO and the ANR
  investigation into another gas station owned by Wesco, the Hilltop gas
  station; (2) communications about Wesco's president's testimony before a
  legislative committee; (FN1) and (3) depositions of the AGO's and ANR's
  computer systems administrators to determine how deleted emails and/or
  missing emails could be recovered.   
                               
       ¶  4.  In April 2003, the district court denied Wesco's motions to
  compel in a written order.  The court reasoned that this Court would likely
  endorse the United States Supreme Court's decision in United States v.
  Armstrong, which held that, in order to obtain discovery in a selective
  prosecution case, a defendant must make a preliminary showing of both
  discriminatory effect and discriminatory intent.  517 U.S. 456, 468 (1996). 
  Because appellants had not made such a showing, the court denied the
  motions to compel.  Specifically, the court noted that documents regarding
  investigations of only Wesco facilities would not likely support Wesco's
  theory that it was selected for prosecution because Wesco could provide no
  context to show that similarly situated persons had been treated
  differently.  The court also held that Wesco failed to provide even "some
  evidence" that the State was motivated by a discriminatory purpose.

       ¶  5.  The trial court also denied Wesco's motion to compel
  depositions of the AGO's and ANR's computer systems administrators,
  concluding that "[w]ithout determining at this time whether the email in
  question is discoverable, the Court concludes that it is not the proper
  function of the defense to conduct a search-whether actual or virtual-of
  the State's records in order to find the wayward email."  Previously, upon
  the court's suggestion, as an alternative means of discovery, the State had
  provided Wesco with written information concerning the State's computer
  system, but Wesco renewed its deposition request after receiving that
  information.  The court concluded that the demand was unreasonable and
  oppressive and, as Wesco apparently sought a specific email that was
  referenced by an expert during a deposition but that the State had not been
  able to produce, it could pursue that under a lost evidence theory.  State
  v. Delisle, 162 Vt. 293, 311, 648 A.2d 632, 642 (1994).  

       ¶  6.  In November 2003, Wesco filed a motion to dismiss for selective
  prosecution, alleging that Wesco was the sole opponent to the ANR fee
  increase in the Legislature and also the sole target for criminal
  prosecution of all 778 sites with claims to the State's petroleum clean-up
  fund due to releases of petroleum from underground storage tanks.  That
  motion is still pending in the trial court.
   
       ¶  7.  On its own motion in June 2004, the trial court directed the
  parties to brief the issue of how this Court's decision in State v.
  Simoneau, 2003 VT 83, 176 Vt. 15, 833 A.2d 1280,  issued in August 2003,
  affected reconsideration of the trial court's April 2003 order.  In October
  2004, the trial court ruled and reversed its April 2003 decision,
  concluding that a less stringent burden applied as a result of Simoneau:
  that a party seeking discovery has the initial burden of demonstrating only
  the "relevance of the evidence to preparation of the party's case," rather
  than admissibility of the evidence.  The court concluded that Wesco had met
  that burden, had proven its need for the evidence, and had proven that the
  evidence was not available by other means.  The court then assigned the
  burden to the State to establish that Wesco's discovery requests were
  unreasonable and oppressive, and set a hearing on the matter.  After that
  hearing, the court issued a written entry order on May 19, 2005, ordering
  the State to produce a number of discovery items, including the three at
  issue here.  This appeal followed. (FN2)
    
                                     I.
   
       ¶  8.  The State first argues that the trial court erred when it
  reversed its April 2003 order and authorized discovery to pursue the
  selective prosecution claim.  Specifically, the State argues that the trial
  court misinterpreted our decision in Simoneau, 2003 VT 83, and that state
  constitutional separation-of-powers principles require that Wesco make a
  threshold showing of selective prosecution in order to obtain discovery to
  pursue a selective prosecution defense.  Wesco responds that the trial
  court properly reconsidered its decision in light of Simoneau where this
  Court "drew such a strong distinction between the scope of federal and
  state rules of criminal discovery, the holding in United States v.
  Armstrong that F.R.Cr.P. 16 does not require the State to disclose evidence
  to support a selective prosecution defense cannot apply to the
  corresponding Vermont rule."  

       ¶  9.  At oral argument, Wesco asked this Court not to decide the
  issue of selective prosecution, but instead to affirm on other grounds that
  had been argued but upon which the trial court did not decide.  We decline
  Wesco's request.  The State has appealed a decision about access to
  discovery in a selective prosecution case.  We address the issue because it
  is a novel question of Vermont law.  We agree with the State that the
  decision below was erroneous, and a motion to dismiss on selective
  prosecution grounds is pending in the trial court.  

       ¶  10.  We typically review a trial court's discovery rulings for an
  abuse of discretion.  Schmitt v. Lalancette, 2003 VT 24, ¶ 9, 175 Vt. 284,
  830 A.2d 16.  To demonstrate an abuse of discretion, a party must show that
  the trial court either withheld its discretion or exercised it on clearly
  unreasonable or untenable grounds.  Simoneau, 2003 VT 83, ¶ 21.  When
  discovery rulings are intertwined with questions of law, however, we do not
  defer to the trial court but instead review the matter anew.  State v.
  Roya, 167 Vt. 594, 595, 708 A.2d 908, 909 (1998); see Thompson v.  Dewey's
  S. Royalton, Inc., 169 Vt. 274, 276, 733 A.2d 65, 67 (1999) (Court reviews
  questions of law in nondeferential and plenary manner). 
   
       ¶  11.  A brief review of the law of selective prosecution is
  required.  "A selective prosecution claim is . . . an independent assertion
  that the prosecutor has brought [a] charge for reasons forbidden by the
  Constitution."  State v. Dann, 167 Vt. 119, 136, 702 A.2d 105, 116 (1997)
  (quoting Armstrong, 517 U.S. at 463).  Such a claim "asks a court to
  exercise judicial power over a 'special province'" of a core executive
  constitutional function, enforcement of the law.  Armstrong, 517 U.S.  at
  464 (quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985)).  Because
  prosecutors function as delegates of the executive, they retain broad
  discretion to enforce the law including-so long as probable cause is
  present-the decisions whether to prosecute in any given case and what
  charge to file.  Id.; see also State's Att'y v. Att'y General, 138 Vt. 10,
  13, 409 A.2d 599, 601 (1979) (prosecution "granted broad discretion in
  deciding whether or not to initiate a criminal prosecution").  Courts
  exercise deference so as not to impair the performance of a core executive
  constitutional function by potentially "chill[ing] law enforcement,"
  delaying criminal proceedings, "subjecting a prosecutor's motives and
  decisionmaking to outside inquiry, and . . . revealing . . . enforcement
  policy."  Armstrong, 517 U.S.  at 465 (citing Wayte v. United States, 470 U.S. 598, 607-08 (1985)). 

       ¶  12.  Judicial deference to that discretion, of course, is subject
  to the "constitutional constraints" that decisions to prosecute may not be
  based on an "unjustifiable standard such as race, religion, or other
  arbitrary classification, including the exercise of protected statutory and
  constitutional rights,"  Wayte, 470 U.S.  at 608 (citations and quotations
  omitted), including First Amendment rights.  United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972).  In Armstrong, the defendant argued that
  the government impermissibly targeted him for prosecution because of his
  race in violation of equal protection, 517 U.S.  at 458; here, Wesco charges
  that it is being singled out because its president exercised his First
  Amendment right to free speech by testifying before a legislative
  committee. 

       ¶  13.  In order to "overcome the presumption that a prosecution is
  undertaken in good faith," State v. Zaccaro, 154 Vt. 83, 92, 574 A.2d 1256,
  1262 (1990), a defendant must prove two elements: 

    (1) that, while others similarly situated have not generally been
    proceeded against because of conduct of the type forming the basis
    of the charge against him, he has been singled out for
    prosecution, and (2) that the government's discriminatory
    selection of him for prosecution has been invidious or in bad
    faith, i.e., based upon such impermissible considerations as race,
    religion, or the desire to prevent his exercise of constitutional
    rights. 

  Id., 574 A.2d  at 1261 (quoting United States v. Berrios, 501 F.2d 1207,
  1211 (2d Cir. 1974)).  

       ¶  14.  Like this case, Armstrong addressed the showing required to
  obtain discovery from the government in a selective prosecution claim.  The
  United States Supreme Court held that a defendant must provide "some
  evidence tending to show the existence of the essential elements of the
  defense, discriminatory effect and discriminatory intent." (FN3) 
  Armstrong, 517 U.S.  at 468 (quoting Berrios, 501 F.2d at 1211).  The Court
  reasoned that, if discovery is ordered in a selective prosecution case
  absent a threshold showing, the government would be faced with many of the
  same costs in responding to a prima facie case as in defending against a
  claim.  Id.  In the interest of not diverting prosecutors' resources and
  possibly disclosing prosecutorial strategy, the Court concluded, the same
  "rigorous standard" should apply to limit defendants' access in discovery. 
  Id.  
                                                                    
       ¶  15.  We are persuaded by Armstrong, and Simoneau does not change
  that.  In Simoneau, we addressed whether discovery need be shown to be
  admissible evidence at trial in order to be subject to discovery by
  subpoena and deposition.  2003 VT 83, ¶¶ 26-30; V.R.Cr.P. 15, 17.  The
  defendant had sought, by subpoena, to obtain the arresting officer's
  training records and to depose the keeper of the records, in order to show
  that the officer had been dismissed for lying and violation of the rules. 
  We held that whether the requested discovery was granted did not rest on
  its actual admissibility at trial.  2003 VT 83, ¶ 28-29.  Instead,
  production pursuant to a subpoena is "discretionary and will be denied
  unless the party seeking it meets a burden of showing the evidentiary
  character and relevance of the material, its unavailability by other means,
  and its necessity for . . . trial preparation." Id. ¶ 28.  The judge may
  quash the subpoena "'if compliance would be unreasonable or oppressive.'" 
  Id. (quoting Reporter's Notes, V.R.Cr.P. 17).  We determined that the
  breadth of the subpoena rule is consistent with that of the deposition
  rule, Rule 15, which gives defendants the right to take a deposition upon
  "a showing that the testimony may be material or relevant on the trial or
  of assistance in the preparation of his defense."  Id. at ¶ 29 (internal
  quotations and citations omitted).  

       ¶  16.  Wesco attempts to distinguish Armstrong by characterizing it
  as based on the federal rules and by arguing that we rejected application
  of the federal rules to Vermont law of criminal discovery in Simoneau. 
  Wesco's argument is overblown.  Wesco is correct that, in Armstrong, the
  Court also ruled that (then) Federal Rule of Criminal Procedure
  16(a)(1)(C), which required disclosure of items "material to the
  preparation of [the defendant's] defense," provided no basis by which the
  defendant could obtain discovery because a selective prosecution is not a
  "defense" to the merits of the government's case in chief within the
  meaning of that rule.  Armstrong, 517 U.S.  at 463.  Wesco also correctly
  argues that Vermont's criminal discovery rules are broader than the federal
  rules in many respects.  Simoneau, 2003 VT 83, ¶¶ 26-30.  It does not
  follow, however, that Wesco is entitled to selective prosecution discovery
  under the "may be material or relevant on the trial or of assistance in the
  preparation of his defense" standard, Simoneau, 2003 VT 83, ¶ 29, absent a
  threshold showing of some evidence of discriminatory effect and
  discriminatory intent.
   
       ¶  17.  Wesco's argument ignores the constitutional and common law
  reasoning of Armstrong.  In addition to deciding that Federal Rule
  16(a)(1)(C) does not entitle defendants to discovery in selective
  prosecution cases, Armstrong determined that judicial deference to
  prosecutorial discretion warranted the threshold showing requirement.  517 U.S.  at 465.  Selective prosecution was not at issue in Simoneau, and
  nothing in that case limits us from requiring a threshold showing in
  selective prosecution cases.  Wesco is still required to demonstrate that
  the discovery sought may be material or relevant to its claim of selective
  prosecution; in order to do so, a threshold showing of some evidence of
  each element is required.  Otherwise, compliance with the discovery request
  would likely be "unreasonable or oppressive" within the meaning of Vermont
  Rule of Criminal Procedure 17(c).  
   
       ¶  18.  We adopt the threshold showing of "some evidence" of each
  element to access discovery in selective prosecution claims because the
  government of the State of Vermont is a government of balanced powers, Vt.
  Const. Ch. II, § 5, and prosecutorial power resides with the executive, id.
  § 20.  We have recognized before the limited nature of judicial oversight
  into the discretion of the prosecutor.  See State v. Suave, 164 Vt. 134,
  140, 666 A.2d 1164, 1167 (1995) (in light of separation-of-powers
  considerations, trial court's discretion to dismiss prosecutions in
  interest of justice and against wishes of prosecutor is necessarily limited
  to "rare and unusual cases when compelling circumstances require such a
  result to assure fundamental fairness in the administration of justice");
  State's Att'y, 138 Vt. at 13, 409 A.2d  at 601 (prosecutor granted broad
  discretion in deciding whether to initiate prosecution).  Counterbalanced
  against separation-of-the-branches considerations, of course, weighs the
  right of citizens not to be targeted for prosecution in an unconstitutional
  manner; the prosecutorial function is equally subject to constitutional
  constraints.  We agree with the reasoning in Armstrong, however, that the
  burdens on the government are substantially the same when responding to a
  motion to dismiss as when responding to the merits of the claim.  To impose
  a standard lesser than that of Armstrong could-for claims entirely without
  merit-delay criminal proceedings, chill law enforcement, and undermine
  prosecutorial effectiveness.  Armstrong, 517 U.S.  at 465.  An initial
  showing is necessary in order to parse out potentially meritorious claims
  from attempts to thwart efficient prosecution of alleged crimes. 
   
       ¶  19.  Finally, Wesco argues that even if we reverse the trial
  court's decision to disregard Armstrong, we should uphold the trial court
  on other grounds because Wesco is entitled to the documents, under
  Simoneau, as impeachment evidence.  The State, in turn, characterizes
  Wesco's impeachment evidence theory "as an attempt to circumvent selective
  prosecution burdens and to pursue discovery by fishing expedition" and asks
  us not to consider this argument because, while the trial court entertained
  the impeachment theory, it decided the issue solely on selective
  prosecution grounds.  We may of course affirm a trial court's decision on a
  different legal theory if the record evidence supports that theory, Amy's
  Enters. v. Sorrell, 174 Vt. 623, 625, 817 A.2d 612, 618 (2002) (mem.), but
  decline to do so here.  We note that this is a rare interlocutory appeal
  concerning discovery issues, which are more properly decided at the trial
  court level.  Wesco, 2004 VT 102, ¶ 18 ("[D]iscovery rulings are
  inherently fluid because they fall within the trial court's discretion to
  revisit and alter as the litigation unfolds.").  We reverse the trial
  court's decision to allow the discovery on selective prosecution grounds
  absent a threshold showing, and remand to the trial court to consider,
  under all legal theories advanced by defendant and consistent with this
  opinion, whether Wesco is entitled to the discovery it seeks. (FN4)   

                                     II

       ¶  20.  The State also argues that the trial court abused its
  discretion in authorizing depositions of the AGO and ANR computer systems
  administrators.  First, the State argues that the trial court erred in
  authorizing depositions to cover the Hilltop investigation as well as the
  Winooski Exxon investigation, because authorizing discovery into the
  Hilltop investigation implicates selective prosecution issues and requires
  a threshold showing.  Consistent with our analysis above, we agree that to
  the extent that Wesco seeks to depose the systems administrators concerning
  the Hilltop investigation in order to support its selective prosecution
  claim, the trial court must first conduct an Armstrong analysis.
   
       ¶  21.  Apart from selective prosecution concerns, the State next
  contends that the trial court abused its discretion in ordering the
  depositions of the computer systems administrators at all.  Wesco argues
  that the emails the State produced referenced other, relevant emails that
  were missing, and that it learned through depositions that some State
  employees had deleted emails.  Wesco wants to depose the systems
  administrators to determine whether those emails could be recovered, and if
  so, what would be involved in searching for them.  The parties had
  initially agreed that the State would provide written detailed information
  about its computer system as an alternative to depositions.  Apparently
  dissatisfied with that production, Wesco sought the depositions.  In its
  April 2003 order, the trial court denied Wesco's motion to compel the
  depositions as unreasonable and oppressive.  In October 2004, the trial
  court reversed itself as a result of Simoneau, and after a hearing on
  whether the request was unreasonable and oppressive, ordered the
  depositions "to determine the extent to which emails relating to the
  investigations . . . can be recovered from the State's computer systems." 
  The court did not require Wesco to explain why the written materials
  provided by the State were unsatisfactory and what additional information
  it sought to obtain.  Nor did the court require Wesco to provide any
  evidence to support its assertion that the alleged emails once existed. 

       ¶  22.  The State charges that the court relied only on Wesco's
  speculation, and that it should have required Wesco to present a threshold
  evidentiary showing that the emails had once existed.  The State also
  argues that the court failed to address the State's previous production of
  written information concerning the computer systems.  Finally, the State
  argues that the trial court failed to consider whether Wesco's discovery
  request was reasonable and not oppressive.  
   
       ¶  23.  We review for an abuse of discretion, and will not disturb
  discovery rulings unless that discretion has been abused or withheld
  entirely.  Schmitt v. Lalancette, 2003 VT 24, ¶ 9, 175 Vt. 284, 830 A.2d 16.  Wesco need not show that depositions would yield admissible evidence
  but only testimony that might be material or relevant.  Simoneau, 2003 VT
  83, ¶ 29.  We hold that the trial court abused its discretion.


       ¶  24.  First, the trial court's order relies only on Wesco's argument
  and speculation, and not on any evidentiary showing that certain emails
  once existed but are now missing.  Although Wesco argued repeatedly that
  certain emails are missing and that it possesses evidence to prove its
  allegation, it failed to provide any factual showing to the trial court
  despite many opportunities to do so.  Absent such a factual predicate,
  Wesco makes no showing that depositions to determine whether, how, and at
  what cost email could be recovered may lead to relevant or material
  evidence.  Even if the depositions revealed that email could be recovered
  easily at little cost, in order to proceed Wesco would still need to return
  to court to make a showing that the missing emails once existed.  The trial
  court admitted as much when it commented, "I don't know how much of this is
  going to turn out to be theoretical."  Wesco argues, and we acknowledge,
  that the trial court did not authorize a blanket search of the State's
  computer system but instead granted limited depositions.  We agree with the
  State, however, that the limitation does not erase the need for the first
  step of a factual predicate.  

       ¶  25.  Moreover, the parties had already embarked on a path of
  written discovery, and the trial court gave no explanation for departing
  from that path.  The State had previously provided Wesco with written
  materials in the hope of satisfying Wesco's demand, but upon receipt, Wesco
  simply went forward with its deposition request.  The court granted Wesco's
  motion without first requiring Wesco to explain why the written material
  fell short and what additional information Wesco sought to obtain.  In
  light of these factors, we hold that the trial court abused its discretion
  in allowing the depositions to go forward.  
   
       Reversed and remanded.  


                                       FOR THE COURT:




                                       _______________________________________
                                       Chief Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  At oral argument, Wesco argued that it was before the Court on two items
  of discovery rather than three, and did not mention the communications
  regarding Simendinger's testimony before the Legislature.  Our analysis as
  to this discovery item would be the same as our analysis as to the Hilltop
  file.

FN2.  As a preliminary matter, Wesco argues that this appeal was
  improvidently granted.  Assuming, without deciding, the merits of Wesco's
  argument, we exercise our discretion to decide the matter in the interests
  of judicial economy.  V.R.A.P. 2; Huddleston v. Univ. of Vt., 168 Vt. 249,
  251, 719 A.2d 415, 417 (1998) (Court may suspend application of appellate
  rules where dismissal would most likely result in another appeal after
  final judgment, merits of the questions of law have been fully briefed and
  argued before the Court, and Court has spent valuable time preparing for
  the case).

FN3.  To show "some evidence" of discriminatory effect, a defendant must show
  "some evidence that similarly situated defendants could have been
  prosecuted, but were not;" Armstrong did not address the "some evidence"
  showing of discriminatory intent.  517 U.S.  at 469.  Proof on the merits of
  the discriminatory intent prong may be demonstrated through circumstantial
  or statistical evidence.  See United States v. Alameh, 341 F.3d 167, 174
  (2d Cir. 2003) (noting examples of insufficient showing of "some evidence"
  of discriminatory intent).

FN4.  In a footnote, Wesco also argues that the trial court "in essence" has
  already ruled that Wesco has made a prima facie case of selective
  prosecution by commenting in its October 2004 order that Wesco filed a
  "substantial" motion to dismiss and that it "demonstrated a relevance and
  need for the discovery to support the dismissal motion."  The State
  vigorously opposes Wesco's claim, and we are likewise unconvinced because
  the trial court was evaluating Wesco's showing in light of Simoneau at the
  time, rather than Armstrong. 

       Wesco also attempts to argue that the trial court actually ruled from
  the bench prior to issuing the May 19 order when it, as characterized by
  Wesco, "found that [Wesco] had presented sufficient evidence of the
  relevance of and the need for discovery to support their selective
  prosecution defense, and agreed that the documents sought were also
  relevant to issues of bias and credibility, the trial court found that the
  State had failed to meet its burden to show that [Wesco's] discovery
  requests were unreasonable or oppressive."   This argument is meritless. 
  At that hearing, the court specifically said, "I'm not ruling."