Milstead v. Smith

• Decision Date: 27 July 2016
• Docket Number: No. 27321.,27321.
• Citation: 883 N.W.2d 711
• Court: South Dakota Supreme Court
• Parties: Minnehaha County Sheriff Mike MILSTEAD, Appellant, and State of South Dakota, Appellant, v. Emily Lou SMITH, Appellee.

883 N.W.2d 711

Minnehaha County Sheriff Mike MILSTEAD, Appellant,

and

State of South Dakota, Appellant,

v.Emily Lou SMITH, Appellee.

No. 27321.

Supreme Court of South Dakota.

Argued on Oct. 5, 2015.

Decided July 27, 2016.

Sara E. Show, Kersten A. Kappmeyer, Minnehaha County State's Attorney's Office, Sioux Falls, South Dakota, Attorneys for appellant, Minnehaha County Sheriff Mike Milstead.

Aaron McGowan, Minnehaha County State's Attorney, Matthew J. Abel, Minnehaha County Deputy State's Attorney, Sioux Falls, South Dakota, Attorneys for appellant, State of South Dakota.

Beau J. Blouin, Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorneys for appellee, Emily Lou Smith.

KERN

, Justice.

[¶ 1.] Defendant was arrested and charged with several offenses, including three counts of simple assault against a law enforcement officer. Defendant served a subpoena duces tecum on the county sheriff requesting “[a]ll disciplinary records/reprimands/complaints” contained within the arresting officer's personnel file. The sheriff filed a motion to quash the subpoena, which the circuit court denied in part. The court ordered the sheriff to produce portions of the arresting officer's personnel records from the past five years for in camera review. We granted the sheriff's petition for an intermediate appeal from the circuit court's order. We reverse.

Background

[¶ 2.] Minnehaha County Deputy Sheriff Adam Zishka arrested Emily Lou Smith on September 30, 2014. She was later indicted for several offenses, including three counts of simple assault against a law enforcement officer. In October 2014, Smith served a subpoena duces tecum on Minnehaha County Sheriff Mike Milstead requesting production of “[a]ll disciplinary records/reprimands/complaints in regard to Deputy Adam Zishka from the Minnehaha County Sheriff['s] Department.”¹

[¶ 3.] On January 6, 2015, Sheriff Milstead filed a motion to quash the subpoena, arguing it was “unreasonable and oppressive.” The court held a motions hearing on January 13, 2015. A Minnehaha County deputy state's attorney from the civil division represented Sheriff Milstead and a deputy state's attorney from the criminal division represented the State. Smith argued that access to the requested records was necessary for effective cross-examination under the Sixth Amendment of the United States Constitution in order to present her theory of the case. She informed the court that she did not claim to have acted in self-defense. Rather, she contended that Deputy Zishka used excessive force against her during the arrest. Both parties urged the circuit court, when ruling on the motion to quash, to apply a test that would analyze the relevancy, admissibility, and specificity of the records. In regard to specificity, Sheriff Milstead argued that the subpoena was overbroad and was a “fishing expedition.” Sheriff Milstead also argued that, even if produced, the evidence would be inadmissible under the rules of evidence.

[¶ 4.] The circuit court denied in part Sheriff Milstead's motion to quash the subpoena. The court ordered Sheriff Milstead to produce “all of Deputy Zishka's personnel records which contain ‘disciplinary records, reprimands, and/or complaints' for ... an in camera review.” Finding that the subpoena “lack[ed] specificity” and was “not narrowly tailored,” the court limited the production to records generated within the last five years.

[¶ 5.] On January 19, 2015, Sheriff Milstead petitioned this Court for an intermediate appeal from the circuit court's order. We granted the request on April 6, 2015. The State, through the Minnehaha County State's Attorney's Office, filed a brief in support of Sheriff Milstead's position.

[¶ 6.] On appeal, Sheriff Milstead raises two issues:

1. Whether the circuit court erred in holding that a law enforcement officer's personnel file is discoverable under SDCL 23A–14–5

(Rule 17(c)).

2. Whether the circuit court erred in ordering an in camera review of Deputy Zishka's personnel file, including disciplinary records, complaints, and reprimands from the last five years.

Standard of Review

[¶ 7.] Ordinarily, “[w]e review the [circuit] court's rulings on discovery matters under an abuse of discretion standard.” Anderson v. Keller, 2007 S.D. 89, ¶ 5, 739 N.W.2d 35, 37

. However, the question whether the circuit court erred when it interpreted SDCL 23A–14–5 to permit discovery raises a question of statutory interpretation and application, which we review de novo. Deadwood Stage Run, LLC v. S.D. Dep't of Revenue, 2014 S.D. 90, ¶ 7, 857 N.W.2d 606, 609.

Analysis

1. Whether the circuit court erred in holding that a law enforcement officer's personnel file is discoverable under SDCL 23A–14–5

(Rule 17(c)).

[¶ 8.] The question whether a law enforcement officer's personnel records are subject to discovery in a criminal prosecution is a question of first impression before this Court.² Smith contends that these records, although confidential, are relevant to the primary issue in this case: “whether Deputy Zishka or Smith was the true aggressor.” The records, she also argues, are necessary to present her defense and fully cross-examine the State's witnesses.

[¶ 9.] South Dakota lacks detailed legislation specific to the production of law enforcement personnel records.³ Accordingly, we look to statutes addressing personnel records generally and the constitutional principles involved in production of confidential materials. SDCL 1–27–1.1

broadly defines public records as including personnel records. Although public records are generally open to inspection and copying pursuant to SDCL 1–27–1.1, certain public records are not. These excluded records include “[p]ersonnel information other than salaries and routine directory information.” SDCL 1–27–1.5(7).

[¶ 10.] Although personnel records are statutorily protected, that protection is not absolute. A defendant has a fundamental right to proffer a defense. State v. Huber, 2010 S.D. 63, ¶ 37, 789 N.W.2d 283, 294

. This includes the right to call witnesses on one's behalf and to confront and cross-examine the prosecution's witnesses for the purpose of challenging their testimony. See U.S. Const. amends. VI, XIV ; S.D. Const. art. VI, § 7 ; State v. Beckley, 2007 S.D. 122, ¶ 9, 742 N.W.2d 841, 844. It is a basic tenant “of American jurisprudence that a statutory provision never be allowed to trump a Constitutional right.” State v. Karlen, 1999 S.D. 12, ¶ 39, 589 N.W.2d 594, 602–03. In Pennsylvania v. Ritchie, 480 U.S. 39, 42–43, 107 S.Ct. 989, 993–94, 94 L.Ed.2d 40 (1987), and Davis v. Alaska, 415 U.S. 308, 309, 94 S.Ct. 1105, 1107, 39 L.Ed.2d 347 (1974), the Supreme Court of the United States addressed this interplay between the important constitutional rights of an accused and public policy concerns regarding the protection of documents.

[¶ 11.] In Davis, the Court held that a defendant's right to effective cross-examination under the Confrontation Clause required that a defendant be able to question an adverse witness regarding the witness's confidential juvenile record. 415 U.S. at 309, 94 S.Ct. at 1107

. The Court stated, “The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” Id. at 320, 94 S.Ct. at 1112.

[¶ 12.] Similarly, in Ritchie, the Court considered “whether and to what extent a State's interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant's Sixth and Fourteenth Amendment right to discover favorable evidence.” 480 U.S. at 42–43, 107 S.Ct. at 993–94

. Ritchie was charged with the rape of his minor child and had subpoenaed a file held by Child and Youth Services (CYS) containing information about the charge and other records. CYS refused to produce the records, even for an in camera review, arguing that they were privileged under Pennsylvania law. The Ritchie Court held that the Confrontation Clause does not create “a constitutionally compelled rule of pretrial discovery.” Id. at 52, 107 S.Ct. at 999. Instead, it affords criminal defendants two specific protections: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Id. at 51, 107 S.Ct. at 998.

[¶ 13.] Although the Confrontation Clause provides individuals with “the right to cross-examine those who testify against” them, it is well recognized “that the right to cross-examine is not absolute.” Karlen, 1999 S.D. 12, ¶¶ 37–38, 589 N.W.2d 594, 602

(citing Ritchie, 480 U.S. at 53, 107 S.Ct. at 999 ). An individual is only guaranteed “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Ritchie, 480 U.S. at 53, 107 S.Ct. at 999 (emphasis added) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) ). The Court recognized the strong “public interest in protecting this type of sensitive information” but also noted that such interest does not necessarily prevent disclosure in all circumstances. Id. at 57, 107 S.Ct. at 1001

. Ultimately, the Court decided that due process requires an in camera review of the privileged file, especially when the discovery sought was material. In defining material evidence, the Ritchie Court stated:

[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.

Id. at 57, 107 S.Ct. at 1001

(quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383 ).

[¶ 14.] Although this Court has not previously addressed personnel records, we have analyzed requests for production of privileged documents by subpoena duces tecum. In Karlen, the defendant was...