State v. Wade
Annotate this Case
State of Vermont v. Wade (2001-318); 176 Vt. 550; 839 A.2d 559
2003 VT 99
[Filed 28-Oct-2003]
[Motion for Reargument Denied 20-Nov-2003]
ENTRY ORDER
2003 VT 99
SUPREME COURT DOCKET NO. 2001-318
OCTOBER TERM, 2002
State of Vermont } APPEALED FROM:
}
} District Court of Vermont,
v. } Unit No. 1, Windham Circuit
}
Sean Wade }
} DOCKET NO. 1106-6-00 Wmcr
Trial Judge: David T. Suntag
In the above-entitled cause, the Clerk will enter:
¶ 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 Windham 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. (FN1) 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
Windham 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, ___ Vt. ___,
___, 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 non-prejudicial 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. (FN2)
Reversed and remanded for further proceedings consistent with the
reinstated jury verdict.
------------------------------------------------------------------------------
Concurring
¶ 12. JOHNSON, J., concurring. I agree with the Court that we
must reinstate Wade's conviction because the prosecutor's discovery
violation did not actually prejudice his defense. The majority opinion is
incomplete, however, because it offers no remedy for the pattern of
discovery abuse and neglect established by the facts the trial court found.
This Court is obliged to refer the prosecutor's conduct to our Professional
Responsibility Program for investigation and appropriate action given the
facts the trial court found below. Thus, I concur with the Court's
judgment to reverse Wade's conviction, but I refer this matter for further
action under the Professional Responsibility Program rules.
¶ 13. I begin with the facts as found by the trial court because
the State's Attorney did not dispute them before the trial court or in this
Court. (FN3) See Bevins v. King, 147 Vt. 203, 206, 514 A.2d 1044, 1046 (1986)
(trial court's unchallenged findings are binding on appeal); State v.
Piper, 143 Vt. 468, 473-74, 468 A.2d 554, 557 (1983) (trial court's
unchallenged finding that defendant was not in custody rendered defendant's
statements admissible); State v. Badger, 141 Vt. 430, 434, 450 A.2d 336,
339 (1982) (relying on facts undisputed by State to decide issue regarding
suppression motion).
¶ 14. The district court's findings show that as early as 1999, the
court, presided over by Judge Hudson, issued a consolidated order in
eighteen cases directing the Windham County prosecutor to disclose to the
defense exculpatory evidence that the prosecution had not previously
disclosed in those cases. That order put the State's Attorney on notice
that he must pay close attention to the fundamental discovery obligations
of his office. Nevertheless, in January 2000, the Windham District Court
dismissed three misdemeanor cases due to discovery violations. The
following month, the court was faced with yet another discovery violation
by the State. This time, a new deputy in the office withheld from a pro se
defendant her knowledge that the investigating police officer would testify
at trial contrary to his sworn probable cause affidavit. That incident
caused the court to meet with the State's Attorney to discuss the problem
so that he would take measures to prevent the repetition of similar
conduct.
¶ 15. Although the deputy involved in that case improved over time,
the Windham County State's Attorney's Office continued to neglect its
discovery obligations. In September and November 2000, then again in
February 2001, the court sanctioned the State for delayed discovery
disclosures. In early May 2001, the State began a series of disclosures in
another criminal proceeding one year after the discovery deadline had
lapsed. In addition, while Wade's dismissal motion was pending before the
trial court, the State disclosed the existence of a conflicting victim's
statement in another case on the first day of jury trial - sixteen months
after the end of discovery. Notably, Attorney Davis admits he violated
V.R.Cr.P. 16 in this case by failing to obtain all the relevant and
discoverable information from the investigating officer before the
discovery deadline had lapsed.
¶ 16. The Court ignores the import of these undisputed facts,
although Canon 3D(2) of the Code of Judicial Conduct provides that a "judge
who receives information indicating a substantial likelihood that a lawyer
has committed a violation of the Vermont Code of Professional
Responsibility should take appropriate action." A.O. No. 10, Vt. Code of
Judicial Conduct, Canon 3(D)(2). A judge cannot be disciplined for failing
to do so, but Canon 3D(2) encourages judges to take some action when they
obtain information that a lawyer may have violated the attorney ethics
rules. See id., Preamble; see also Gonzalez v. State, 768 S.W.2d 471, 473
(Tex. Ct. App. 1989) (Code of Judicial Conduct requires judge to refer
prosecutorial misconduct for disciplinary action); AIG Hawaii Ins. Co. v.
Bateman, 923 P.2d 395, 402 (Haw. 1996) (Supreme Court compelled to refer
parties' attorneys for disciplinary action where court concludes that
attorneys probably violated rules of professional conduct in proceeding
before it); People v. Green, 274 N.W.2d 448, 455 (Mich. 1979) (Williams, J.
concurring and dissenting) (recommending that court order its clerk to
report prosecutor's misconduct to grievance authorities for action); see
also ABA Center for Professional Responsibility, Annotated Model Rules of
Professional Conduct 581 (4th ed. 1999) (explaining that judges as lawyers
are bound by both Rule 8.3 of Model Rules of Professional Conduct and Canon
3(D)(2) of Judicial Code of Conduct to report lawyer misconduct). The
record in this case suggests a "substantial likelihood" that the Windham
County State's Attorney has violated his ethical duties.
¶ 17. The State's discovery obligations in criminal cases arise
from the Rules of Professional Conduct, as well as constitutional and
statutory law. Brady v. Maryland, 373 U.S. 83, 87 (1963); V.R.Cr.P. 16;
Vt. Rules of Prof'l Conduct R. 3.8(d). Indeed, prosecutors have a special
ethical duty related to discovery that is not shared by the rest of the
bar, that is, to timely turn over certain evidence to the defense. Vt.
Rules of Prof'l Conduct R. 3.8(d). Fulfilling that duty may require
prosecutors to make inquiries of the other investigators involved in the
case, including the police. Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Judge Hudson emphasized that duty to the State's Attorney in his
consolidated order in 1999. Despite that order, the trial court found
instances in the following years where Windham County prosecutors failed to
make sufficient inquiries of the police in a timely manner causing late
disclosure of evidence time after time. In addition, prosecutors, like all
attorneys practicing in Vermont, must avoid conduct that "is prejudicial to
the administration of justice." Vt. Rules of Prof'l Conduct R. 8.4(d).
The trial court's undisputed findings show repeated instances of late
discovery, which caused admonishments and dismissals, and which resulted in
system-wide prejudice in Windham County. In sum, the facts the trial court
found suggest that there is something seriously wrong with how the Windham
County State's Attorney manages the discovery obligations of his office.
The Court's opinion overlooks this problem despite Wade's urging here,
joined by the American Civil Liberties Union Foundation of Vermont (ACLU),
that we take some action to help resolve it.
¶ 18. I disagree, however, with the dismissal remedy Wade and the
ACLU suggest because no actual prejudice resulted from the late disclosure
in Wade's case. Rather than dismiss an otherwise valid conviction, the
trial court could have referred the prosecution's conduct for disciplinary
investigation and action. Indeed, this Court has previously referred a
prosecutor for disciplinary action where the prosecutorial misconduct did
not prejudice the accused's right to a fair trial. See State v. Hohman,
138 Vt. 502, 506, 420 A.2d 852, 855 (1980), overruled on other grounds by
Jones v. Shea, 148 Vt. 307, 309, 532 A.2d 571, 572 (1987). In affirming
Hohman's manslaughter conviction and referring the prosecutor's conduct to
the Professional Conduct Board, we explained that "[u]nethical conduct,
however worthy of censure, does not necessarily deprive a defendant of a
fair trial, and is therefore distinguishable from prejudicial error." Id.
Other courts have reached a similar conclusion. See, e.g., United States
v. Starusko, 729 F.2d 256, 265 (3d Cir. 1984) (appropriate sanction for
prosecution's discovery violation that did not prejudice defendant was
referral of prosecutor for disciplinary action); Suarez v. State, 481 So. 2d 1201, 1206 (Fla. 1986) (disciplinary sanction against prosecutor rather
than suppression of defendant's voluntary statement was appropriate remedy
for prosecutor's unethical conduct). Referring a prosecutor for
disciplinary action when the prosecutor's misconduct does not prejudice the
defendant "preserves judicial integrity and deters violation of the
recognized right to a fair trial, without punishing society for the
misdeeds of the prosecutor." United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir. 1984) (internal citations omitted).
¶ 19. Referring a prosecutor for disciplinary investigation and
action for violating the government's discovery duties is not without
precedent. For example, the Ohio Supreme Court suspended a prosecutor for
six months for, among other things, failing to timely disclose the
existence of exculpatory evidence to the defense. Office of Disciplinary
Counsel v. Jones, 613 N.E.2d 178, 179-80 (Ohio 1993). The same court
publicly reprimanded a prosecutor who did not timely turn over discovery to
the defendant's counsel. Cuyahoga County Bar Ass'n v. Gerstenslager, 543 N.E.2d 491, 491 (Ohio 1989). In that case, the court determined that
although the prosecutor did not act "knowingly," his practices were
"grossly negligent and sloppy," and amounted to conduct that was
prejudicial to the administration of justice, warranting a public
reprimand. Id.; cf. People v. Mucklow, 35 P.3d 527, 535 (Colo. O.P.D.J.
2000) (adherence to office procedures is no defense to a violation of
ethical rules where blind adherence to those procedures results in
nonconforming conduct). In People v. Mucklow, a public censure was imposed
on a prosecutor who violated Rule 3.8 of the Colorado Rules of Professional
Conduct by not timely producing exculpatory evidence to the defense in two
criminal prosecutions. 35 P.3d at 539.
¶ 20. The trial court - and defense counsel - did not pursue a
referral to the Professional Responsibility Program to redress the pattern
of discovery violations by the Windham County State's Attorney's Office.
Indeed, we recognize that it is difficult for trial judges to make
complaints to the Professional Responsibility Program against lawyers with
whom they have to work on a day to day basis. That neither defense counsel
nor the trial judge here chose to make the referral does not mean that this
Court should also decline to do so. We are more removed from the working
relationship between district court judges and the attorneys practicing
before them. I am, therefore, referring this matter to the Professional
Responsibility Program for further investigation and appropriate action.
¶ 21. The majority criticizes the referral as a violation of the
confidentiality requirement set forth in the rules governing the
Professional Responsibility Program. See ante, 11. But in State v.
Hohman, this Court made its referral to the Professional Conduct Board
public by including it in the Court's opinion notwithstanding the
then-existing nondisclosure requirement. Hohman,138 Vt. at 506, 420 A.2d
at 855. Under the rules in effect at that time, all proceedings and
records involving alleged attorney misconduct were confidential until the
commencement of formal proceedings or until twenty-one days after the Court
approved a public reprimand or censure without formal proceedings. See 12
V.S.A. App. VIII, A.O. No. 9, § 20 (Supp. 1986). In other words, after a
complaint was filed with the Board, but before a finding of probable cause
of an ethical violation and the beginning of formal proceedings, the Board
and proceeding participants were required to keep the complaint
confidential. Id. That provision did not, however, prevent the Court from
making known that its concerns about the prosecutor's ethical propriety
warranted investigation by the Professional Conduct Board. See Hohman, 138
Vt. at 506, 420 A.2d at 855.
¶ 22. Despite the majority's criticism in this case, the referral
here does not violate the current nondisclosure provision in Rule 12(A) of
the rules governing the Professional Responsibility Program. Rule 12(A)
provides that "all proceedings and communications in connection with a
complaint shall be confidential within the program" prior to the filing of
formal disciplinary action. A.O. No. 9, Rule 12(A). Although worded
differently from the confidentiality provision existing at the time of our
Hohman decision, the intent is the same. The Rule prevents those
implementing the Professional Responsibility Program from disclosing
information about an allegation of attorney misconduct after a complaint to
that effect is filed with the Program, but before a finding of probable
cause.
¶ 23. A public referral in a case like this is particularly
important because this Court is ultimately responsible for overseeing the
ethical conduct of attorneys admitted to practice in Vermont. Vt. Const.
ch. II, § 30. Consequently, the Court must be "particularly vigilant" when
reviewing cases where an attorney's conduct raises a substantial question
about whether that conduct conforms to the rules of ethics we have
promulgated to protect the public. Mucklow, 35 P.3d at 533; see also J.
Levy, The Judge's Role in the Enforcement of Ethics - Fear and Learning in
the Profession, 22 Santa Clara L. Rev. 95, 107 (1982) (the higher up the
judicial structure the less pressure not to report ethical lapses of
lawyers). Like the trial court, the justices of this Court are also bound
by Canon 3D(2) of the Judicial Code of Conduct. Considering the record
evidence of discovery violations by the Windham County State's Attorney's
Office from 1999 through 2001, we owe it to the public, and the victims in
the cases that were dismissed because of the State's discovery misconduct,
to ask the Professional Responsibility Board to investigate whether the
discovery violations identified in the trial court's order deserve sanction
under the Rules of Professional Conduct. Reversing Wade's conviction
without addressing the allegations of misconduct found by the district
court here is an affront both to the public in Windham County and to our
duty under the Constitution to oversee the ethics of attorneys admitted to
practice in Vermont.
¶ 24. My decision to refer this matter for investigation by the
Professional Responsibility Program is also informed by the nature of the
injury the referral seeks to redress. As the district court found, the
repeated discovery violations caused system-wide prejudice to the criminal
justice system in Windham County, even if the violation in Wade's
individual case did not prejudice him. Indeed, had Wade been prejudiced by
the late discovery in his case, the outcome of this case would likely be
different. But the public nature of the harm the district court found
requires a public response, and one that will best ensure that the State
meets its discovery obligations in Windham County in the future.
¶ 25. Finally, I emphasize that a referral is not a determination
by me or this Court that the Windham County State's Attorney has violated
the Rules of Professional Conduct or that discipline is appropriate. The
findings of the district court in this case raise "serious questions . . .
as to the ethical propriety of the state's attorney's conduct," the
standard we adopted in Hohman. 138 Vt. at 506, 420 A.2d at 855. Once the
referral is made, a professional responsibility hearing panel must decide
whether there has been an ethical violation and, if so, how to remedy it.
¶ 26. I am authorized to state that Justice Dooley joins in this
concurrence.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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Footnotes
FN1. 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.
FN2. The dissent 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.
FN3. The State asserts that it was "blind sided" by the trial court's
reliance on prior cases where the court imposed sanctions for the State's
discovery violations. The record in this case establishes that Wade's
dismissal memoranda discussed the prior cases, and that he requested
dismissal of his conviction to sanction a pattern of discovery misconduct
by the same prosecutor. The State did not contest the facts alleged in
Wade's memorandum, nor could it. The facts were a matter of record in the
Windham District Court. To the extent the State's Attorney had an
explanation for his office's repeated discovery violations, he failed to
present it to the district court despite the opportunity to do so in the
State's responsive memoranda. The State's claim that it was surprised by
the court's order is meritless.
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