State v. Dowsett, 16216

• Decision Date: 04 August 1994
• Docket Number: No. 16216,16216
• Citation: 10 Haw.App. 491,878 P.2d 739
• Parties: STATE of Hawai'i, Plaintiff-Appellant, v. Kimo DOWSETT, Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 739

878 P.2d 739

10 Haw.App. 491

STATE of Hawai'i, Plaintiff-Appellant, v. Kimo DOWSETT, Defendant-Appellee.

No. 16216.

Intermediate Court of Appeals of Hawai'i.

Aug. 4, 1994.

Certiorari Denied Aug. 25, 1994.

Syllabus by the Court

1. Hawai'i Rules of Penal Procedure (HRPP) Rule 16(e)(9) governs sanctions in cases where a party has failed to comply with HRPP Rule 16 or an order issued pursuant thereto.

2. HRPP Rule 16(e)(9)(i) provides that where a party fails to comply with its terms the court may order such party to permit the discovery, grant a continuance, or enter such other order as it deems just under the circumstances.

3. The trial court is empowered to dismiss a case under HRPP Rule 16(e)(9)(i) for non-compliance with HRPP Rule 16.

4. In exercising the broad discretion as to sanctions under HRPP Rule 16, the trial court should take into account the reasons why the disclosure was not made, the extent of prejudice, if any, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.

5. Before the court orders dismissal of a case because of the State's violation of HRPP Rule 16, it must consider whether less severe measures would rectify prejudice caused to the defendant by the violation.

6. The obligation to seek justice is paramount, and the prosecution's duty under HRPP Rule 16 must be diligently observed.

7. Faithful adherence to discovery obligations serves the public interest: Discovery provides the basic information which is necessary to expedite trials and plea decisions in an already overburdened court system and promotes fairness in the adversary system.

8. Sanctions imposed on counsel pursuant to HRPP Rule 16(e)(9)(ii) for willful violations of discovery rules or orders require a showing that the violations were intentional, knowing, or purposeful.

9. Contempt and referral for professional disciplinary action are available to the court as sanctions against counsel under HRPP Rule 16(e)(9)(ii) for violation of discovery rules and orders.

10. Where a defendant succeeds during trial in having a charge against him dismissed without submitting the question of his guilt or innocence of that charge to the jury, the double jeopardy clause does not bar a second trial of that charge.

11. The United States Supreme Court has carved a narrow exception to the general rule that retrial is possible following mistrial in instances where deliberate prosecutorial or judicial misconduct results in a successful motion for mistrial.

12. The double jeopardy clause will bar a retrial when the prosecutor's conduct giving rise to the defendant's successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.

13. In order to bar retrial, the defendant must show that the prosecution intended to provoke a mistrial.

Doraine F. Meyer, Deputy Pros. Atty., on the brief, Honolulu, for plaintiff-appellant.

Earle A. Partington, on the brief, Honolulu, for defendant-appellee.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

ACOBA, Judge.

On June 25, 1991, Appellee-Defendant Kimo Dowsett (hereinafter Defendant) was indicted for the offense of Criminal Property Damage in the Second Degree in violation of Hawai'i Revised Statutes § 708-821(1)(b) (1985). On September 25, 1991, the motions court ordered the State to provide Defendant with any statements made by the complaining witness. This order was made in response to Defendant's Motion to Compel Discovery filed September 10, 1991 pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 16.

Defendant's jury trial began on March 30, 1992. After four witnesses, including the complaining witness, had testified, defense counsel informed the court that a police officer had handed him a document entitled, "Suspect Weapon Vehicle Description" (Honolulu Police Department (HPD) Form 458) ¹ signed by the complaining witness after the incident. In its opening brief, the State indicated the form "contained [the complaining witness'] description of the suspect and vehicle...." Defense counsel contended that the failure to disclose this document was "extremely prejudicial." The prosecutor admitted he had been informed of the document "approximately two weeks before trial" but stated he "forgot about it."

The court granted Defendant's oral motion for mistrial and dismissed with prejudice. It stated that the form, which was marked as a defense exhibit and made part of the record, was a "substantial part of Defendant's defense and was necessary for Defendant for his use in cross examination of the complaining witness." The court further found that "[f]rom this form alone, it can be seen that the complaining witness' testimony would have been impeached." The Findings of Facts, Conclusions of Law and Order Granting Defendant's Oral Motion for Mistrial and Dismissal with Prejudice (hereinafter Dismissal Order) was filed on May 4, 1992. The State timely appealed from this Dismissal Order.

I.

In its brief, the State "concedes that the failure to provide ... H.P.D. Form 458 ... was a violation of both Rule 16, H.R.P.P. and the court's Order Granting Defendant's Motion to Compel Discovery." But it argues that the trial court "should be required to make a full inquiry on the record showing that ... alternatives were explored" that were "less severe than mistrial or dismissal."

While not stated in the Dismissal Order, HRPP Rule 16(e)(9)(i) ² governs sanctions in cases where "a party has failed to comply with this [R]ule or an order issued pursuant thereto...." "[HRPP Rule 16(e)(9)(i) ] provides that where a party fails to comply with its terms 'the court may order such party to permit the discovery, grant a continuance, or ... enter such other order as it deems just under the circumstances.' " State v. Sugimoto, 62 Haw. 259, 262, 614 P.2d 386, 389 (1980) (emphasis in the original) (quoting HRPP Rule 16(e)[ (9) ](i)). Thus, it cannot be controverted that "the trial court is ... empowered to dismiss under HRPP Rule 16(e)[ (9)(i) ] for non-compliance [with] Rule 16." State v. Marzo, 64 Haw. 395, 397, 641 P.2d 1338, 1340 (1982) (footnote omitted). "Obviously, the sanction of dismissal is addressed to the sound discretion of the court." Id. But, "[i]n exercising the broad discretion as to sanctions [under HRPP Rule 16], the trial court should take into account the reasons why the disclosure was not made, the extent of prejudice, if any, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances." Id. (emphasis added).

Under related circumstances, the Hawai'i Supreme Court has said, "[t]he test for determining if a lower court has abused its discretion in handling a Rule 16 problem ... is if after finding a violation of the rule, the court takes measures to alleviate any prejudice...." State v. Miller, 67 Haw. 121, 122, 680 P.2d 251, 251 (1984). We hold, therefore, that before the court orders dismissal of a case because of the State's violation of HRPP Rule 16, it must consider whether less severe measures would rectify prejudice caused to the defendant by the violation.

Here, dismissal was ordered on the second day of trial. The State had not yet completed its case. There is no indication that the complaining witness could not have been recalled for further examination by Defendant on HPD Form 458. A short continuance to allow Defendant to examine the form and to prepare cross-examination would have cured whatever prejudice resulted because of the document's late production. Cf. Miller, 67 Haw. 121, 680 P.2d 251 (1984). None of the parties requested a continuance. Neither the trial court's oral ruling nor its written order indicates any consideration of measures less severe than dismissal. The trial court here failed to "take into account ... the feasibility of rectifying that prejudice by a continuance...." Marzo, 64 Haw. at 397, 641 P.2d at 1340. Accordingly, the court abused its discretion in failing to grant a continuance to allow the prejudice to be rectified. See also People v. Dist. Court, 808 P.2d 831 (Colo.1991) (it is an abuse of discretion to grant dismissal for failure to disclose potentially exculpatory information when a continuance would cure the prejudice to the defendant).

II.

Defendant complains that in "case after case reversed by [the appellate] court[s] ... no action is ever taken against the offending prosecutors." He relates that the effect of reversal is that the State "gets to retry the accused." It has been reiterated in cases involving the prosecutor's violation of HRPP Rule 16 that "[t]he prosecution has a duty 'to seek justice, to exercise the highest good faith in the interest of the public and to avoid even the appearance of unfair advantage over the accused.' " State v. Moriwaki, 71 Haw. 347, 354, 791 P.2d 392, 396 (1990) (quoting State v. Quelnan, 70 Haw. 194, 198, 767 P.2d 243, 246 (1989)). Accord Miller, 67 Haw. at 122, 680 P.2d at 251 (quoted in Quelnan ).

As in Miller, "the trial prosecutor's conduct in this case is disturbing." Miller, 67 Haw. at 122, 680 P.2d at 251. HPD Form 458 was prepared by the complaining witness after the incident. The form indicates that it was completed on April 12, 1990 before Defendant was indicted. The State clearly should have made it available within a reasonable time after the indictment, ³ not in the middle of a jury trial nearly two years after it was completed. Failure to disclose the document properly resulted in an unnecessary interruption of the trial affecting the jury, the court, Defendant, the witnesses, and other pending criminal cases. The information on the form arguably "tends to negate the guilt of the accused [or] mitigates the degree of the offense...." Hawai'i Rules of Professional Responsibility DR 7-103(B) (1991). ⁴ Therefore, the prosecutor was also ethically bound to "make timely disclosure" to the defense under Hawai'i Rules of Professional Responsibility ...