Commonwealth v. Adlaon

Commonwealth v. Adlaon, 4 N.M.I. 171 (1994) Commonwealth of the Northern Mariana Islands, Plaintiff/Appellant, v. Quirino Adlaon, Defendant/Appellee. Appeal No. 93-029 Traffic Case No. 93-0614 July 28, 1994 Argued and Subm itted Decem ber 9, 1993 Counsel for appellant: Cheryl M . Gill, Assistant Attorney General, Saipan. Counsel for appellee: Daniel J. DeRienzo, Public Defender, Saipan. BEFORE: DELA CRUZ, Chief Justice, and VILLAGOM EZ and ATALIG, Justices. DELA CRUZ, Chief Justice: The governm ent appeals the dismissal of reckless driving and driving while under the influence of alcohol charges against the defendant, Quirino Adlaon. The trial court ruled that the governm ent’s failure to tim ely provide certain discovery material violated the defendant’s right to due process. For the following reasons we vacate the order of dismissal and rem and the case for further proceedings. I. PROCEDURAL AND FACTUAL BACKGROUND Adlaon was arrested on February 7, 1993, and charged pursuant to 9 CM C §§ 7104 (reckless driving) and 7105 (driving under the influence of alcohol or other drugs). He was adm inistered a blood alcohol content test (“BAC” or “Breathalyzer test”) pursuant to 9 CM C § 7106. The result of the test, which we do not know, is not at issue in this appeal. In an affidavit in support of his pre-trial motions, Adlaon stated that he was coerced into taking the Breathalyzer test. 1 Appellee’s Supplemental Excerpts of Record at 32. He stated that an unidentified police officer slapped him into subm itting to the test. He also asserted that the police withheld his car keys until the m orning after the test, and only after he had signed a docum ent acknowledging that he had consented to take the Breathalyzer test. The test, he contends, was taken in violation of the Com m onwealth’s im plied consent law. 9 1 On March 30, 1993, Adlaon filed motions for discovery, to suppress the Breathalyzer test results and relating to an expert witness. CM C § 7106(c). 2 On M arch 15, 1993, Adlaon filed an adm inistrative com plaint with the Department of Public Safety (“DPS”) for the assault and battery he allegedly sustained the night he took the Breathalyzer test. The com plaint was designated as DPS Case No. 93-1909. Docum ents regarding this com plaint are not in the trial record. On M arch 22, 1993, defense counsel Daniel DeRienzo wrote a letter to the director of DPS requesting information regarding the adm inistrative com plaint the defendant had earlier filed. A copy of the letter was sent to DPS’s legal counsel. DPS did not respond. On M arch 30, 1993, Adlaon filed three pre-trial motions along with his affidavit noted above, including a “M otion for Discovery.” Am ong the discovery m aterial requested, Adlaon sought disclosure of: (1) all inform ation regarding DPS Case No. 93-1909 (request no. 36); (2) the witnesses the government intended to call at trial (request no. 1); and (3) all police officers who observed him within “one hour after his arrest” (request no. 19). The m otions were initially set for hearing on April 27, 1993. For reasons not set forth in the record the hearing on the discovery m otion and the other two pre-trial motions was continued to M ay 4, 1993, which was also the date set for trial. On M ay 4, im m ediately before the discovery hearing, the governm ent produced a num ber of docum ents regarding DPS Case No. 93-1909. Following argum ent, the court found the governm ent’s tardy disclosure inexcusable. It then stated: “I think that the m ost fair, the m ost fair and most logical way to proceed in this matter would be to give this defendant another two week’s tim e to prepare for trial.” Appellant’s Excerpts of Record [hereinafter “ER”] at 14. Adlaon requested the court to clarify that the continuance was given to allow him tim e to analyze the m aterials received that morning, and was not for the benefit of the governm ent. The governm ent objected to Adlaon’s attempt to foreclose it from supplementing its previously-disclosed discovery, witness list or evidence for trial. Adlaon’s counsel then chose to forego a continuance and the matter proceeded to trial. At the beginning of the governm ent’s case, the prosecutor informed the court that four witnesses would be called to testify. The defense objected, noting that in the government’s earlier responses to discovery it had indicated that only two witnesses would be called. The governm ent’s first witness was Officer Anthony M oreham , who stated that Officer Anthony M acaranas was at the arrest scene. ER at 58. At this point, defense counsel moved for dismissal of the case on the ground that he had not received any discovery inform ation to the effect that Officer M acaranas was involved in the case. Id. at 61. After hearing the argum ents of counsel, the trial judge stated: It is very im portant for me, it is very important, that the governm ent or especially the prosecution side, as m uch as possible . . . be truthful in their presentation of evidence or sharing of docum ents that would be used in trial. In this case, I cannot help it, but I have to dism iss both charges . . . . Id. at 72. The court noted that the case was being dism issed on “due process” grounds alone. Id. at 76. In a written order, the court added: 2 Nine CMC § 7106(c) provides: A person requested to submit to a test as provided above shall be warned by the police officer requesting the test that a refusal to submit to the test will result in revocation of his or her license to operate a motor vehicle for six months. Following this warning, if a person under arrest refuses upon the request of a police officer to submit to the test, none shall be given, but the Court upon the receipt of a sworn report of the police officer that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the highways of the Commonwealth while under the influence of alcohol or any drug and that the person had refused to submit to the test upon the request of the police officer, shall revoke that person’s license subject to review as provided for in Section 7108.  Commonwealth v. Adlaon, 4 N.M.I. 171 (1994) The Defendant also represented to the Court that critical to the issue of this case is the assault and battery com plaint filed at [DPS] . . . . The issue presented in the assault and battery com plaint, DPS Case No. 93-1909, is critical for the defense. It happened during the period the Defendant was being held by the police. The resultant investigation by DPS and the turning over of such m aterial(s) to the defense on the eve of trial is prejudicial. W ithout that inform ation being provided [in] a timely fashion, the defense would not have adequate tim e to conduct further research or even issue subpoena(s) to any potential witnesses with respect to the allegation. That issue alone, coupled with Officer Anthony Moreham’s testimony that Officer Anthony Macaranas was present at the scene where the Defendant was stopped, are material to the issue of exculpation. Id. at 79-80 (em phasis added).3 The government tim ely appealed the dism issal of the case.4 II. ISSUES AND STANDARD OF REVIEW The governm ent raises two issues on appeal. The governm ent first contends that the trial court erred in dismissing this action on due process grounds because it failed to “produce docum ents pertaining to DPS Case No. 93-1909 until the day of trial” and refused to “list fact witnesses in response to the defendant’s discovery requests.” W e review de novo a dism issal of a crim inal case on due process grounds. Commonwealth v. Campbell, 4 N.M .I. 11, 15 (1993), aff’d, 42 F.3d 546 (9th Cir. 1994). Next, the governm ent contends that, assum ing it violated its duties to produce discovery, the trial court erred in choosing the sanction of dismissal to rem edy the alleged violation. It asserts that the violation did not warrant dism issal. Our review of this issue is for abuse of discretion. Id. III. ANALYSIS The trial court dismissed the case against Adlaon on “due process” grounds. The due process violation the trial court found concerned Adlaon’s right to a fair trial. The factual basis of the court’s decision, as we gather from the court’s oral and written statem ent and order, was the governm ent’s untimely production of the docum ents in DPS Case No. 93-1909 and its failure to disclose as a witness the nam e of an officer who was present at the arrest scene. The trial court determ ined that the results of DPS Case No. 93-1909 were critical to Adlaon’s defense. The governm ent, however, contends that DPS Case No. 93-1909 does not contain exculpatory material within the m eaning of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Thus, it had no duty to disclose them and there was no due process violation. Also, the governm ent contends that it was under no constitutional or statutory duty to disclose its trial witness list, and that the allegedly undisclosed name of the 3 The court also noted that a memorandum sent by Superior Court Judge Alexandro Castro to the Attorney General in September 1992, pursuant to an order issued in an unrelated criminal action, Commonwealth v. Villanueva, Crim. No. 81-0082 (N.M.I. Tr. Ct. Sept. 21, 1981), construed Com. R. Crim. P. 16. Appellant’s Excerpts of Record at 82-86. Com. R. Crim. P. 16, according to this memorandum and order, requires the government to disclose the “names and addresses of all potential witnesses” who may have some knowledge of the facts of the present case. The government failed to satisfy the dictates of this ruling. 4 After the appeal was filed, the government moved to supplement the trial record with matters outside the record below. W e denied the motion. officer at the arrest scene was in fact disclosed to the defense well before the trial date. W e need to exam ine the circum stances leading up to the day of trial before a determ ination can be made that Adlaon’s right to a fair trial and right to discovery were violated. If it is determ ined that there has been a violation, we shall then proceed to the issue of whether dismissal of the charges was an appropriate sanction. A. Due Process W e begin by noting that the discovery motion and the trial were set for the same day. Rather than confront the m otion, the government produced docum ents on the m orning before the hearing on the pre-trial m otions. To ensure that Adlaon would not be prejudiced by the governm ent’s late disclosure, the court offered to continue the trial so that he would have the tim e to review the materials. Adlaon chose instead to proceed to trial. It was in this context that the trial began. After the government’s first witness, Officer M oreham , testified that Officer M acaranas was present at the arrest scene, the defendant im m ediately objected. Adlaon argued that Officer M acaranas was not disclosed as a witness as requested. The prosecutor disagreed, stating that Officer M acaranas was earlier identified as being present at the scene in a previously-disclosed docum ent.5 Nevertheless, the judge stopped the trial. The trial court adm onished the government that it should “as much as possible be truthful in their [sic] presentation of evidence or sharing of docum ents that would be used at trial.” ER at 72. Viewing the issue relating to the defendant’s assault and battery com plaint as critical to the defense and material to the issue of exculpation, the court dismissed the charges. Under Brady, the government must disclose “evidence favorable to an accused” which is “material either to guilt or to punishment.” 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. In Campbell, we held that the failure to disclose pretrial materials did not constitute a Brady violation where the content of the subject documents were unknown. 4 N.M .I. at 17. W e also held that “a Brady ‘claim will have no merit’ where the disclosure of m aterial evidence ‘did not com e too late to deprive the defendant of a fair trial.’” 4 N.M .I. at 15. Finally, we stated that an accused does not suffer a due process violation until he or she has been tried and convicted. 4 N.M .I. at 16. Here, the matter was dism issed after the trial began but before the end of the governm ent’s case. There has been no conviction. Like Campbell, the nature of the alleged exculpatory material is unknown. The defendant would like us to infer that DPS Case No. 93-1909 contains per se exculpatory material because the prosecutor’s and DPS’s conduct in failing to disclose the material earlier connotes bad faith. The underlying issue we face is whether to uphold a finding of a due process violation that has no support in the record. W e decline to do so. The record before us does not disclose whether the m aterials handed over on the day of trial are in fact exculpatory. If they are exculpatory, then sanctions, even dism issal of the charges, may have been justified to cure the violation. However, we do not know the exculpatory or non-exculpatory nature of the docum ents. Neither did the trial court. The docum ents regarding DPS Case No. 93-1909 may not be exculpatory. If so, there would be no duty to disclose them under Brady and no prejudice would result to the defendant because of non-disclosure. W e hold that the trial court erred in finding a due process violation because it did not inquire into the nature of the docum ents, i.e., whether the docum ents are, in fact, exculpatory. It clearly was irritating to the trial court for the government to produce the requested m aterials on the day of the discovery hearing and just before trial. The government should have known that unless the trial was continued, the m aterials handed over could be of no help to a defendant who had not reviewed them. The defense, however, chose to forego the continuance offered by the trial court. Adlaon cannot now argue that he was denied the right to a fair trial. Although we hold that on the record before us there was no due process violation based on Brady, we go on to determ ine whether there was a statutory duty requiring disclosure of the documents or the identity of Officer M acaranas. W e therefore next exam ine the prosecution’s statutory duty of disclosure and the appropriateness of the sanction im posed. 5 This document is not a part of the record before us.  Commonwealth v. Adlaon, 4 N.M.I. 171 (1994) B. Disclosure under Com. R. Crim. P. 16(a)(1)(C) The governm ent does not adequately address its failure to tim ely disclose the apparently critical DPS record pursuant to Com . R. Crim. P. 16. Certainly, information regarding the voluntariness of the defendant’s consent in taking the Breathalyzer test, at issue in DPS Case No. 93-1909, would fall under this category. A defendant is entitled to discover documents which are “m aterial to the preparation of his/her defense.” Com . R. Crim. P. 16(a)(1)(C). The governm ent failed in its duty to tim ely provide such information to enable Adlaon to adequately prepare for trial. This failure appears unjustified, particularly in light of Adlaon’s sworn statement that he was the subject of physical coercion by the police. The governm ent failed in its duty to provide the defendant with potentially critical inform ation after two requests (discovery request no. 36 and defense counsel’s direct request to DPS), without justification. Generally, with regard to discovery a continuance will cure any prejudice that might result due to the governm ent’s delay. United States v. Peveto, 881 F.2d 844, 861-63 (6th Cir.), cert. denied sub nom., Hines v. United States, 493 U.S. 943, 110 S. Ct. 348, 107 L. Ed. 2d 336 (1989). However, where the governm ent’s actions are taken in bad faith, suppression of evidence may be appropriate. United States v. Wicker, 848 F.2d 1059, 1061- 62 (10th Cir. 1988). Dism issal is, however, a rem edy of last resort and should be em ployed where the defendant is prejudiced by the governm ent’s “flagrant” misconduct. Campbell, 4 N.M .I. at 18. W e are not satisfied that such was the case here. The trial court did not exam ine the requested docum ents and did not know whether they were m aterial to the preparation of Adlaon’s defense. The government’s disclosure on the m orning of trial appears to suggest that the docum ents fall within the purview of Com . R. Crim . P. 16(a)(1)(C). W e agree with the trial court that the government’s failure to tim ely disclose the documents was unjustified. W e disagree, however, that dism issal was an appropriate sanction. W e hold that the trial court abused its discretion by failing to continue the case, as it had earlier suggested. It should have imposed a sanction short of dism issal. In Campbell, which involved a som ew hat sim ilar situation, we noted that the sanction of dismissal is a harsh and disfavored rem edy. Campbell, 4 N.M .I. at 18. To warrant dismissal, the governm ent’s misconduct must not only be flagrant but m ust also have prejudiced the defendant. Id. The defendant rejected the court’s offer of continuance, and cannot now claim that the untim ely production of the allegedly exculpatory docum ents in DPS Case No. 93-1909 would somehow have prejudiced him at trial. M oreover, the trial court m ade no specific finding that the prosecutor engaged in flagrant misconduct. C. Disclosure of the W itness List A defendant does not have a due process right to discover the governm ent’s witness list. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 845, 51 L. Ed. 2d 30, 42 (1977). Sim ilarly, no right is provided by our rules of crim inal discovery. See Com. R. Crim . P. 16. However, the court has the inherent power to order disclosure of witnesses to prom ote the efficient adm inistration of our crim inal justice system . United States v. Moore, 936 F.2d 1508, 1515 (7th Cir.), cert. denied, 502 U.S. ___, 112 S. Ct. 607, 116 L. Ed. 2d 630 (1991); United States v. Eisenberg, 773 F. Supp. 662, 683 (D.N.J. 1991). W e review the trial court’s decision to order disclosure for abuse of discretion. Moore, 936 F.2d at 1515; Eisenberg, 773 F. Supp. at 683. The disclosure of the governm ent’s witness list should not be ordered except upon a specific showing of need. A motion for disclosure has been denied where the defendant made “only an abstract, conclusory claim that such disclosure was necessary to its proper preparation of trial.” United States v. Feldman, 731 F. Supp. 1189, 1199 (S.D.N.Y. 1990), aff’d, 992 F.2d 320 (2d Cir. 1993). For exam ple, claims that the governm ent’s investigation was lengthy, the witness pool was large and disclosure would greatly facilitate defense preparation were deem ed unspecific, and thus did not justify the requested relief in the form of governm ent disclosure of its witnesses. Id. W e therefore agree with the governm ent that it was not required to disclose its witness list to Adlaon. W e note that the trial court dism issed the case before it could order further disclosure. The dism issal was principally based on the governm ent’s failure to produce docum ents regarding DPS Case No. 93-1909. However, to the extent that the trial court’s dism issal was based on (1) a violation of Adlaon’s asserted due process right to discover the government’s witness list, or (2) its failure to comply with an order in a previous, unrelated case 6 as authority that the governm ent must produce a witness list, we hold that the trial court erred. IV. CONCLUSION W e find the governm ent’s conduct in this case quite disturbing. Any allegation of physical coercion should not be taken lightly. Yet here, the governm ent all but ignored Adlaon’s com plaint of physical coercion by the police, after two form al requests by the defense counsel and upon receipt of a sworn statem ent by Adlaon testifying to the abuses he suffered. Clearly, the governm ent should have responded im m ediately after being notified of such allegations of police abuse and coercion, particularly under the circum stances presented here. The governm ent’s conduct in ignoring Adlaon after he subm itted a sworn statement to the court and tried in vain to use legal process to uncover the abuses indeed reflects poorly on the government. The trial court’s displeasure with the prosecutor was justified. However, under the circum stances, its rem edy was not justified. There is no question that the governm ent m ust address claim s of police coercion prom ptly and openly. W e therefore rem and the case to the trial court to reconsider the im position of sanctions. Adlaon contends that the Breathalyzer test was taken illegally, by coercion, and thus against his consent. If the trial court finds that Adlaon’s allegations have m erit, it may suppress the Breathalyzer results on the ground that the test was taken without consent in violation of 9 CM C § 7106. W e note that the reckless driving charge filed pursuant to 9 CM C § 7104 should not have been dismissed, as this charge is unrelated to the events leading to the Breathalyzer test and corresponding allegations of coercion. This opinion relates only to the charge under 9 CM C § 7105 and should not affect the charge of reckless driving under 9 CM C § 7104 on rem and. The order of the trial court dismissing the action is VACATED and the case is REM ANDED for further proceedings consistent with this opinion. 6 See note 3, supra.