Commonwealth v. Campbell

Commonwealth v. Campbell, 4 N.M.I. 11 (1993) Commonwealth of the Northern Mariana Islands, Plaintiff/Appellant, v. William Campbell, Defendant/Appellee. Appeal No. 92-012 Traffic Case No. 92-0070 July 22, 1993 Argued and Subm itted M arch 11, 1993 Counsel for appellant: Robert C. Naraja, Attorney General, Julie J. Van Dyne, Assistant Attorney General, Saipan. Counsel for appellee: G. Anthony Long, Saipan. BEFO RE: DELA CRUZ, Chief Justice, VILLAGOM EZ, Justice, and BELLAS, Special Judge. DELA CRUZ, Chief Justice: The governm ent appeals an order in favor of defendant W illiam C. Campbell (“Cam pbell”) dism issing, without prejudice, charges of driving while under the influence of alcohol pursuant to 9 CM C § 7105. The dism issal followed the granting of a motion in lim ine excluding all evidence of Campbell’s dem eanor the night he was arrested. The m otion was made on grounds that the governm ent failed to provide him with exculpatory evidence, as required under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).1 W e have jurisdiction pursuant to 1 CM C § 3102(a). For the reasons noted below, we vacate both the order in lim ine and the order of dismissal, and rem and for further proceedings. I. FACTUAL AND PROCEDURAL BACKGROUND On January 4, 1992, two police officers were dispatched to the hom e of a “M r. Staley” due to a 1 A “motion in limine” is defined as a “pretrial motion requesting [the] court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to [the] moving party that curative instructions cannot prevent predispositional effect on [the] jury.” B LA C K ’ S L A W D IC TIO N A R Y 1013 (6th ed. 1990). A motion to suppress, on the other hand, is a device “used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation” of one’s constitutional rights. Id., 1014. The motion made here was a motion to suppress evidence of the defendant’s demeanor based on a Brady due process violation. Accordingly, we will treat it as such. Defendant labeled his motion a “motion in limine” most likely because he had filed it after the cutoff date set to bring pretrial motions, including motions to suppress. Com. R. Crim. P. 12(b)(3). disturbance caused by an individual identified as “Gary Isla.” 2 The incident led to Isla’s detention. Cam pbell allegedly assisted the police in “handling” Isla “as well as having him placed into the police car.” Staley allegedly rode to the police station in the sam e police car as Isla. Campbell followed the police car to give Staley a ride back hom e. However, before reaching the Susupe police station, another officer stopped Campbell. The officer cited Campbell for driving while under the influence of alcohol. He entered a plea of not guilty at his arraignm ent on January 13, 1992. On January 14, 1992, the trial court ordered the prosecution to provide discovery m aterial to the defense, including evidence the governm ent intended to present in its case in chief. 3 By m emorandum dated January 29, 1992, Campbell’s original counsel, the Public Defender, requested copies of the police “reports” regarding Gary Isla and the identity of the “two officers” who transported Isla the night Campbell was arrested. The prosecutor objected to this request and did not provide the requested inform ation. Thereafter, defense counsel told the prosecutor that Cam pbell was entitled to the requested discovery pursuant to Com . R. Crim . P. 16(c). Counsel noted that the inform ation was “absolutely m aterial to his defense” because “the officers saw [Campbell] im m ediately before he got into the car and [Campbell] was behind them until another officer pulled him over.” The prosecutor failed to produce any discovery in response to this request. At the M arch 17, 1992, status conference, Campbell’s new counsel requested the court to set a pretrial m otion calendar. Trial was set for M ay 8, 1992. 4 Campbell, however, never moved to com pel production of the m aterials sought earlier. By the date of trial, the governm ent still had not provided the inform ation requested. On the day of trial, Campbell moved the court in lim ine for an order excluding all “evidence concerning M r. Cam pbell’s dem eanor or the m anner in which he was driving on the night” he was arrested. Cam pbell so m oved because the governm ent had failed “to provide the defense with the relevant materials,” specifically the “police reports” and “nam es of the officers” who detained Isla. Campbell asserted that the requested inform ation was material to his defense. The officers “were able to observe M r. Campbell and his dem eanor and his actions imm ediately prior to the tim e he was driving.” Such evidence would support the “contention that M r. Cam pbell was not under the influence of alcohol at the tim e.” Cam pbell advanced three argum ents at the hearing in support of his m otion: (1) the governm ent failed to produce the requested discovery pursuant to the trial court’s January 14, 1992, order, (2) Com . R. Crim . P. 16 required the disclosure of the requested discovery, and (3) the Brady doctrine required disclosure of the requested discovery. The governm ent opposed the m otion because Campbell failed to move to com pel the requested discovery, and the m otion in lim ine was therefore untim ely. The governm ent disputed Campbell’s contention that the requested inform ation was Brady material and asked the court to review the material in camera before m aking a determ ination on this issue. The officers who detained Isla were in the courtroom during argum ent on the motion. M oreover, the Isla report was available for in camera inspection by the Court. Following argum ent, the trial court stated: THE COURT: Based upon argum ents of counsel, [the] m otion in lim ine is granted. And I don’t want to com e back and sit down this afternoon, if that part of the evidence is not in, it would not be possible . . . . .... . . . to try this case; case dismiss [sic] without prejudice. .... 2 Our recitation of the facts is based on the record on appeal and the briefs of the parties. No specific findings were made by the trial court. 3 In response, the government produced “a copy of the report that was prepared by the police officer that stopped Mr. Campbell and the police officer that performed the blood alcohol content test on Mr. Campbell.” 4 The trial was later continued to May 21, 1992.  Commonwealth v. Campbell, 4 N.M.I. 11 (1993) THE COURT: I don’t have any tim e in this court to play gam es. The court signed a written order dism issing the case, without prejudice, on M ay 21, 1992. The governm ent tim ely appealed. II. ISSUES AND STANDARD OF REVIEW The governm ent raises one issue in its brief for our review: whether the trial court erred “in dism issing the case for an alleged Brady [v. Maryland, supra] violation where the [trial] court failed to exam ine the dem anded evidence and determ ine whether it was material.” In addressing this issue, we need to determ ine the non-Brady basis upon which the in lim ine order could have rested. See In re Estate of Dela Cruz, 2 N.M .I. 1, 16 n.10 (1991). W e do this because the defendant advanced at the hearing below two other grounds in support of his motion, and the trial court, in granting the m otion, did not specify the ground on which its order rested. These grounds, as Campbell argued below, are: (1) the governm ent violated Com . R. Crim . P. 16; and (2) the governm ent violated the January 14, 1992, pretrial discovery order. The Brady issue raised by the governm ent requires a twofold analysis. The first question we need to address is whether the court’s order was founded on a due process violation and was therefore proper. This issue presents a question of law which we review de novo. Commonwealth v. Lizama, 3 N.M .I. 400 (1992), aff’d, 27 F.3d 444 (9th Cir. 1994).5 The second Brady question is whether the trial court abused its discretion in granting the m otion and dism issing the case, in view of its power to cure a potential Brady violation. This and the non-Brady issues im plicate the trial court’s discretionary powers. Therefore, the standard of review is abuse of discretion. Commonwealth v. Saimon, 3 N.M .I. 365 (1992). III. DISCUSSION A. The Rule of Brady v. Maryland The United States Supreme Court held in Brady that the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishm ent, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-1197, 10 L. Ed. 2d at 218. Brady material includes inform ation “that bears on the credibility of a significant witness in the case.” United States v. Brumel-Alvarez, 991 F.2d. 1452, 1461 (9th Cir. 1992). Impeachm ent evidence is “favorable” evidence. Id. To establish a Brady violation, a defendant must show that the prosecutor failed to disclose material evidence. Id. The underlying policy set forth in Brady and its progeny rests on the fundam ental principle that the accused must be afforded a fair trial. Brady, 373 U.S. at 87, 83 S. Ct. at 1197, 10 L. Ed. 2d at 218. As one com m entator notes, a Brady “claim will have no merit” where the disclosure of material evidence “did not com e too late to deprive the defendant of a fair trial.” 8 Jam es W . M oore, M O O R E ’ S F EDERAL P R A C TIC E ¶ 16.06[2] (1993 rev.), citing at n.108 United States v. Gordon, 844 F.2d 1397 (9th Cir. 1988) and United States v. 5 In United States v. Brumel-Alvarez, 991 F.2d 1452 (9th Cir. 1992), the Ninth Circuit noted that it had not employed a “single standard of review where there have been challenges to a conviction based on a Brady violation.” The court declined to apply a specific standard of review, noting that its decision to reverse would be the same under any standard of review, whether it be de novo, clear error or abuse of discretion. Similarly, our decision here would remain the same regardless of the standard applied. However, where we are asked to determine whether a defendant’s due process rights were violated, we employ a de novo standard. Andersson, 813 F.2d 1450 (9th Cir. 1987). Generally, a defendant must be tried and convicted before any due process violation becom es of consequence. 6 This is clearly not the case here. The court granted the suppression motion and dismissed the case. There was no trial, let alone a conviction. It did not consider whether the inform ation requested was exculpatory and thus Brady material. W e therefore agree with the governm ent that the court erred in granting the m otion in lim ine and dism issing the action, to the extent the orders were based on due process grounds. As noted above, our Brady inquiry does not end here. The governm ent should produce exculpatory m aterial to the defendant promptly upon discovery. However, Brady requires only that the governm ent produce exculpatory material in tim e for the defendant’s effective use of those materials at trial. Gordon, 844 F.2d at 1403; Andersson, 813 F.2d at 1458-1459. Should a potential Brady violation com e to light, the court has broad discretion to remedy the problem before the accused is prejudiced by non-disclosure. United States v. Tamura, 694 F.2d 591, 600 (9th Cir. 1982). Here, the court had the power and discretion to cure any potential Brady violation before the trial started. However, it chose to dism iss the case rather than cure the potential Brady violation. W e now address the second Brady question: did the trial court abuse its discretion in granting the m otion and dism issing the case, in view of its power to cure a potential Brady violation before trial? In the sam e analysis, we will review for abuse of discretion the court’s rulings based on the two other grounds raised by Cam pbell: whether the governm ent violated Com . R. Crim . P. 16 and the trial court’s January 14, 1992, pretrial discovery order, which ordered the governm ent to disclose exculpatory evidence and evidence it expected to present in its case in chief. B. The Pretrial Orders 1. The Government’s Discovery Obligations under Com. R. Crim. P. 16 First, we address the governm ent’s assertion that Campbell waived his right to the requested m aterial by not bringing a motion to com pel discovery. Com . R. Crim . 16(a)(1)(C) provides that a defendant may seek discovery of docum ents and tangible objects that are “m aterial to the preparation of his/her defense.” 7 The fact that Cam pbell did not move to com pel does not excuse the governm ent from failing to com ply with its discovery obligations. The court has the discretion to fashion a rem edy for a party’s non-com pliance with its discovery obligations “at any tim e during the course of the proceedings.” Com . R. Crim . P. 16(d)(2). The court had the power to cure any discovery violation raised by Cam pbell’s motion in lim ine. For exam ple, the court could have ordered the governm ent to produce the Isla report pursuant to Com . R. Crim . P. 16. Aside from that, if the inform ation requested is truly Brady material, there is an affirm ative duty on the prosecutor to disclose such m aterial, independent of Com . R. Crim . P. 16. A defendant is not required to seek court intervention to obtain disclosure of Brady material from an obstinate prosecutor. However, if the prosecution fails or refuses to turn over Brady material, the defendant should seek an order to com pel disclosure. W ith these principles in mind, we now exam ine the propriety of the trial court’s orders. 2. The Trial Court Orders Granting the Motion in Limine and Dismissing the Action 6 Brady has recently been held to apply in one notable pretrial situation not applicable here. “Brady and its progeny must be applied to a suppression hearing involving a challenge to the truthfulness of allegations in an affidavit for a search warrant.” United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993). 7 Com. R. Crim. P. 16(a)(2), in contrast, precludes discovery of “reports” or “other internal government documents” made “in connection with the investigation or prosecution of the case.” The government never argued to the trial court that the requested information fell outside the scope of discovery. The government only contended that the requested information was not Brady material and that Campbell waived his right to the information because he failed to bring a motion to compel. Moreover, the government has never asserted that the Isla report was made “in connection” with the “investigation or prosecution” of the case against Campbell. Thus, the information requested appears discoverable and the government was under an obligation to produce all responsive material.  Commonwealth v. Campbell, 4 N.M.I. 11 (1993) An abuse of discretion exists if the “court based its ruling on an erroneous view of the law or on a clearly erroneous assessm ent of the evidence.” Lucky Dev. Co., Ltd. v. Tokai, U.S.A., Inc., 3 N.M .I. 79, 84 (1992). W e hold that the trial court abused its discretion in granting the m otion in lim ine and dismissing the case sua sponte. It should have fashioned a rem edy short of dism issal. The defendant made no showing to the trial court that the requested inform ation is in fact Brady material. The only evidence that was before the court was an affidavit subm itted by Campbell’s original counsel. The affidavit provides only that the Isla report and nam es of Isla’s detaining officers were relevant because they m ight lead to favorable evidence regarding the issue of Campbell’s dem eanor. Despite argum ent to the contrary, Campbell does not know if the requested inform ation was indeed exculpatory. Campbell’s counsel stated to the trial court: That’s the whole point here. That’s the point, Your Honor. Couldn’t talk [to the police officers]. Don’t know who they are. So, how can we find out what they knew, or what they recalled, or what they did, what did [sic] they observed about M r. Cam pbell or anything. W e don’t know. They didn’t give it to us. And based on the information that we have, they could corroborate but we’ve had no opportunity to ever do that, Your Honor. Conversely, the governm ent made no showing to the trial court that the inform ation requested did not include exculpatory evidence. The governm ent sim ply argued that the requested information was not Brady m aterial. It also argued that if it was wrong about the nature of the requested inform ation, the trial court should first conduct an in camera hearing to determ ine the issue. The governm ent refused to divulge the nature or the character of the requested inform ation. W e agree with Cam pbell that the information he requested was relevant to the issue of the defendant’s dem eanor at or about the tim e of Cam pbell’s arrest. If, as he asserts, the police officers who detained Isla observed his conduct and actions, such inform ation may be critical in im peaching the testim ony of the arresting officer. Also, the report regarding Isla may contain som e inform ation favorable to the defense, if, for exam ple, it indicates that Campbell assisted the police in detaining Isla. On the other hand, the report and the officers may provide no help whatsoever to Cam pbell’s case. W ithout exam ining the requested inform ation, the court had no facts before it to rule on the in lim ine motion. There was no showing that the discovery Campbell requested was actually Brady material, that the governm ent violated the court’s January 14, 1992, pretrial discovery order,8 or that Campbell was even entitled to relief pursuant to Com . R. Crim . P. 16. The governm ent is asking us to find error on the basis that the requested report and the inform ation regarding the police officers who detained Isla are not Brady material. W e are, however, unable to determ ine whether the governm ent in fact withheld Brady material based on the record presented to the trial court. Any conclusion we m ay m ake as to the true nature of the requested inform ation would merely be “conjectural and speculative.” See United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The trial court erred because there was no factual predicate from which to assess the m otion. Therefore, we hold that the trial court abused its discretion in granting the m otion in lim ine. The order of dismissal, which was based on the trial court’s suppression ruling, should thus be set aside. 3. In Camera Review The governm ent requested the trial court to review the disputed inform ation in camera to determ ine whether the requested inform ation constituted Brady material. It contended that the inform ation was not exculpatory. W here the parties disagree on whether certain inform ation is Brady material, an in camera determ ination 8 Moreover, on the record, Campbell’s contention that the government violated the trial court’s pretrial discovery order is without merit as the government complied with that order. See note 3, supra. is the preferred m eans of resolving the dispute. W hile there is no duty to provide the defense unlim ited discovery, if a general request is m aterial or if a substantial basis for claiming materiality exists, then the prosecutor should provide the information or subm it the issue to the trial judge for in camera determ ination. United States v. Gardner, 611 F.2d 770, 774-775 (9th Cir. 1980); see also United States v. Agurs, 427 U.S. 97, 107-08, 96 S. Ct. 2392, 2399, 49 L. Ed. 2d 342, 352 (1976). A prosecutor may also respond to a specific request by subm itting the m atter to the trial judge. Gardner, 611 F.2d at 775, citing United States v. Ross, 511 F.2d 757, 765 (5th Cir. 1975), cert. denied, 423 U.S. 836, 96 S. Ct. 62, 46 L. Ed. 2d 54 (1975). Further “[i]n camera inspection and excision is a sound approach to a Brady inquiry” should non-m aterial inform ation warrant protection from disclosure. United States v. Jones, 612 F.2d 453, 456 (9th Cir. 1979), cert. denied, 445 U.S. 966, 100 S. Ct. 1656-1657, 64 L. Ed. 2d 242 (1980). Brady questions should ordinarily be presented to the court by written m otion brought pursuant to Com . R. Prac. 8 and Com . R. Crim . P. 47. The accom panying affidavits should set forth, to the extent known, the substance, nature and m ateriality of the disputed evidence. Also, the parties should subm it declarations establishing their good faith attem pt to resolve the m atter am ongst them selves before judicial intervention. W e are confident that had the parties below cooperated as to discovery, or had Campbell brought a motion to com pel production of the materials during discovery, this dispute would have been resolved well before the trial date. This procedure for requesting an in camera hearing will ensure that defendants are afforded their due process rights and will assist in preventing the costly remedy of a Brady violation: a new trial for the defendant. 4. The Order of Dismissal Campbell contends that the dismissal sanction was appropriate in view of alleged prosecutorial m isconduct for withholding apparent Brady material. He asserts that any error on the part of the trial court was harmless. Campbell has directed our attention to cases setting forth the authority of the trial court to dismiss an indictm ent pursuant to the court’s supervisory powers. In two of the three cases cited, the dism issals were reversed or vacated: United States v. Isgro, 751 F. Supp. 846 (C.D. Cal. 1990), rev’d, 974 F.2d 1091 (9th Cir. 1992), and United States v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1991), vacated, 4 F.3d 1455 (9th Cir. 1993). The third case cited by Campbell is factually inapposite.9 The law is clear that dismissal of an indictm ent is an “extraordinary remedy.” United States v. Garcia, 780 F. Supp. 166, 177 (S.D.N.Y. 1991). W hile a court has the power to dism iss pursuant to its supervisory powers, it is a disfavored rem edy. See United States v. Marshank, 777 F. Supp. 1507, 1529 (N.D. Cal. 1991). Cam pbell appears to argue that although these cases relate to indictments by a grand jury, they also apply to crim inal com plaints. W e agree and find no distinction for purposes of our analysis here. In order to “warrant dismissal, the governm ent’s m isconduct must not only be flagrant, but must also have prejudiced the defendant.” Id. Campbell has shown neither here. M oreover, we are not aware of any authority which provides that dismissal is appropriate for the alleged failure to turn over evidence that allegedly was Brady material. The Isgro case confirm s our position. Isgro, in reversing the trial court, stated: Sim ilarly, in Spillone, 879 F.2d 514, the defendant argued before the Ninth Circuit that a dismissal was proper in part because the prosecutor had delayed in giving defense counsel certain Brady material. W e stated that ‘[t]o ask for a dism issal of the indictm ent on this ground is unwarranted,’ id. at 522, reasoning that the governm ent’s failure to com ply with its duty to disclose exculpatory evidence at trial ‘was not sufficient to justify a dism issal of the indictment.’ Id. 974 F.2d at 1098. There is nothing in the record before us that suggests that the prosecutor’s refusal to turn over the 9 United States v Marshank, 777 F. Supp. 1507, 1524 (N.D. Cal. 1991) (government attorneys had an “ongoing relationship” with the defendant’s attorneys such that the association was “outrageous and shocking to the ‘universal sense of justice’”).  Commonwealth v. Campbell, 4 N.M.I. 11 (1993) requested m aterial constituted “flagrant misconduct,” as Campbell contends. Understandably, the court was irritated by the circum stances presented to it by this case. However, assuming there was misconduct, the trial court should have first considered sanctioning counsel or im posing a remedy short of dismissing the case.10 A hearing or a short continuance would have allowed Campbell the opportunity to interview the police officers and review the Isla report. IV. CONCLUSION W e hereby VACATE the suppression order granted in lim ine and the consequent order of dism issal. W e REMAND the m atter for further proceedings consistent with this opinion, including in camera inspection by the trial court as to the m aterials requested by Cam pbell. If the requested materials are exculpatory, the trial court should order the governm ent to produce those materials within a reasonable tim e before trial. 10 W e are not saying that dismissal can never be an appropriate remedy. There may be situations where dismissal is warranted by virtue of the reprehensible conduct of the prosecution.