State v. Darmond

• Decision Date: 21 March 2013
• Docket Number: 2012–0195.,Nos. 2012–0081,s. 2012–0081
• Citation: 986 N.E.2d 971,135 Ohio St.3d 343
• Parties: The STATE of Ohio, Appellant, v. DARMOND et al., Appellees.
• Court: Ohio Supreme Court

135 Ohio St.3d 343

986 N.E.2d 971

The STATE of Ohio, Appellant,

v.DARMOND et al., Appellees.

Nos. 2012–0081, 2012–0195.

Supreme Court of Ohio.

Submitted Jan. 9, 2013.

Decided March 21, 2013.

[Ohio St.3d 343]Syllabus of the Court

The holding in Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus, that “[a] trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery” applies equally to [Ohio St.3d 344]discovery violations committed by the state and to discovery violations committed by a criminal defendant.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Katherine Mullin, Assistant Prosecuting Attorney, for appellant.

John P. Parker, Cleveland, for appellee Demetrius Darmond.

Jeff Hastings, for appellee Iris Oliver.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, urging reversal on behalf of amicus curiae Ohio Prosecuting Attorneys Association.

O'NEILL, J.

{¶ 1} On the first day of a nonjury felony trial, during the testimony of the first witness, the trial court became aware that the state had failed to disclose to the defendant some evidence related to the case. The record is clear that the discovery violation was unintentional. The court noted that the undisclosed evidence “could be inculpatory or exculpatory,” but it never made a finding one way or the other. On motion by the defense, the court declared a mistrial and dismissed the charges with prejudice. The appellate court affirmed, concluding that the trial court had not abused its discretion. For the reasons that follow, we hold that the failure of the trial court to explore whether a less severe sanction was appropriate was an abuse of discretion. We accordingly reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings.

{¶ 2} In its analysis, the appellate court considered Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), which held that when contemplating a sanction for a discovery-rule violation, a trial court must conduct an inquiry into the surrounding circumstances and “must impose the least severe sanction that is consistent with the purpose of the rules of discovery.” Id. at paragraph two of the syllabus. The appellate court distinguished Lakewood from this case on the basis that Lakewood involved a discovery violation committed by a defendant rather than by the state.

{¶ 3} The appellate court then certified a conflict on that issue because other appellate courts have applied Lakewood to cases involving discovery violations committed by the state. We accepted the conflict for review and also accepted the state's discretionary appeal.

{¶ 4} We conclude that under the current discovery rules, Lakewood applies to all discovery violations, including those committed by the state. A contrary holding would be at odds with this court's repeated guidance that trials are to be conducted on a level playing field and Crim.R. 16's requirement that remedies for discovery violations apply to the defense and the prosecution equally. We therefore answer the certified question in the affirmative.

I. Facts and Procedural History

{¶ 5} The two defendants-appellees in this case, Demetrius Darmond and Iris Oliver, were jointly indicted in August 2010 on felony charges of trafficking in [Ohio St.3d 345]drugs and possession of drugs, with specifications, and with additional charges as to Darmond. Both defendants pled not guilty and waived their right to a jury trial, electing instead to be tried by a judge. The state and the defendants (represented by separate counsel) engaged in reciprocal discovery upon the defendants' demands for discovery pursuant to Crim.R. 16, and the case proceeded to a bench trial.

{¶ 6} After the parties' opening statements, the state called its first witness, a special agent with the Ohio Bureau of Criminal Identification and Investigations (“BCI”). The BCI agent testified that on March 13, 2010, she was on package-interdiction duty at a FedEx facility after receiving a tip from law-enforcement authorities. She testified that she had discovered three suspicious packages that day, all sent from Arizona, that were similar to each other. After a drug-sniffing dog alerted to the packages, she obtained search warrants, opened the packages, and found marijuana inside. The packages were addressed to three different people at three different addresses.

{¶ 7} One of those packages, which was addressed to defendant Oliver's street address but stated a name other than that of any resident of the address as the addressee, was the basis for the indictment in this case. The agent placed the marijuana back in that package and rewrapped it. The package was delivered to Oliver's address under surveillance by officers of the Cuyahoga County Sheriff's Office, who were accompanied by the BCI agent, on March 16, 2010. Defendant Darmond later arrived at Oliver's residence and put the package in his car. He was then arrested.

{¶ 8} The special agent was again on package-interdiction duty on March 17, 2010, and discovered four more suspicious packages, all sent from Arizona, that she opened after obtaining warrants. Each contained marijuana. One of those packages was addressed to Oliver's street address but stated a name other than that of any resident as the addressee. The agent took that package to the Cuyahoga County Sheriff's Office. That package was not delivered to Oliver's address, because Darmond had been arrested the previous day. The other three packages found on March 17 were addressed to three separate addresses different from any address on any of the other packages the agent had already intercepted.

{¶ 9} The agent prepared separate reports for each of the seven packages. In the report relating to the package that was delivered to Oliver's address, the agent noted that a second package addressed to Oliver's residence and containing marijuana had been intercepted on March 17, but other than that, the reports did not mention the other packages. The agent did not have the other reports with her at trial, was not involved with any follow-up investigations that might have taken place on the other five packages, and was able to remember only sketchy [Ohio St.3d 346]details of the police action regarding those packages after she discovered them. As to at least one other package, she believed that a controlled delivery had been made to the address on the package and that an arrest had resulted, but she was unsure of the specifics.

{¶ 10} The record clearly supports the fact that the assistant prosecuting attorney handling the case and both defense attorneys were unaware of the other five packages prior to the BCI agent's testimony. In response to the defendants' pretrial discovery requests, the state had provided the BCI agent's reports relating to the two packages the prosecutor knew to exist and also provided other information. After several sidebars during the agent's testimony, the defense attorneys moved the trial court to dismiss the case with prejudice due to the state's failure to disclose prior to the trial the interception of the five additional packages and the reports regarding them.

{¶ 11} The defense attorneys renewed the motion to dismiss after the agent completed her testimony, arguing that the undisclosed information was exculpatory and that dismissal was the only remedy. In response, the prosecutor asserted that the undisclosed packages were not exculpatory evidence. He also emphasized that neither he nor the BCI agent had been trying to hide anything.

{¶ 12} After a one-hour recess, the parties conducted discussions off the record, and the case then resumed on the record. The prosecutor again argued in opposition to the motions to dismiss that it was not clear that the undisclosed packages were exculpatory, and he suggested that they may have instead been inculpatory because further investigation may have shown them to be evidence implicating the defendants in a scheme to distribute drugs.

{¶ 13} After the defense attorneys again pressed for dismissal with prejudice, the trial court reviewed the details of the situation. The court noted that the undisclosed evidence “could be inculpatory or exculpatory” and then stated that the full details regarding all seven packages and what occurred in the aftermath of their discovery should have been supplied to the defense. The court concluded the proceedings by declaring a mistrial and dismissing the case with prejudice, barring the state from further indicting the defendants.

{¶ 14} The Eighth District Court of Appeals affirmed, holding that the trial court had not abused its discretion. State v. Darmond, 8th Dist. Nos. 96373 and 96374, 2011-Ohio-6160, 2011 WL 5998671, ¶ 26. In considering the preference expressed in the second syllabus paragraph of Lakewood for imposing the least severe sanction consistent with the purpose of the discovery rules, the appellate court distinguished Lakewood and declined to apply it. Id. at ¶ 15–18. The court in essence interpreted that case's holding as applying only to cases involving a defendant's discovery violation and did not extend it to cases involving a discovery violation committed by the state.

[Ohio St.3d 347]{¶ 15} The court of appeals determined that its resolution of the case conflicted with the decisions of the Third Appellate District in State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, 850 N.E.2d 123 (3d Dist.), and the First Appellate District in State v. Siemer, 1st Dist. Nos. C–060604 and C–060605, 2007-Ohio-4600, 2007 WL 2541121. The court of appeals then certified a conflict on the following issue: “Does the holding in Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138...