State v. Drayton, 69--250

• Decision Date: 27 August 1969
• Docket Number: No. 69--250,69--250
• Citation: State v. Drayton, 226 So.2d 469 (Fla. App. 1969)
• Parties: STATE of Florida, Petitioner, v. William Henry DRAYTON, Respondent.
• Court: Florida District Court of Appeals

Page 469

226 So.2d 469

STATE of Florida, Petitioner, v. William Henry DRAYTON, Respondent.

No. 69--250.

District Court of Appeal of Florida, Second District.

Aug. 27, 1969.

Joseph G. Spicola, Jr., State's Atty., and John S. Burton, Asst. State's Atty., Tampa, for petitioner.

Ronald K. Cacciatore, Tampa, for respondent.

LILES, Judge.

The State of Florida has petitioned for a writ of certiorari in this court seeking to vacate an order of the trial judge requiring that certain grand jury testimony be made available to the court for an In camera inspection. On an earlier occasion this court granted a temporary stay of the execution of the trial judge's order pending disposition of this petition.

Respondent, defendant below, was charged with the crime of rape. In argument before the trial judge on defendant's 'motion for Grand Jury testimony' respondent argued that several inconsistencies in the prosecutrix's testimony had already appeared. She had given somewhat varying statements to police officers, and statements in her deposition conflicted with statements she was said to have given to police officers. The trial judge entered an order requiring an In camera inspection of the testimony by the prosecutrix before the grand jury to see if it exculpated or favored respondent in any way, and further to determine if her grand jury testimony conflicted with other evidence already before the court.

Upon entry of the order the state petitioned this court for certiorari, alleging that the trial court departed from the essential requirements of law in that under Florida law he is without power to enter such an order involving grand jury testimony in advance of trial. The state supports this allegation by citing Minton v. State, Fla.1959, 113 So.2d 361, 364--366, and Jackman v. State, Fla.App.1962, 140 So.2d 627, 630, for the proposition that pretrial examination of grand jury testimony is not permissible under Florida law. Respondent contends that any Florida law must give way to the due process clause of the Fourteenth amendment, which gives him the right to the issuance of such an order. Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Williams v. Dutton, 5th Cir. 1968, 400 F.2d 797.

If respondent is correct in his assertion that the trial judge's authority for issuing the order flows from the United States Constitution, then any Florida law or practice to the contrary must be put aside. After careful examination, we are of the opinion that the accused in a criminal trial has the right, Protected by the Constitution, to have the prosecution disclose to him favorable evidence material either to guilt or punishment with adequate time allowed to utilize it fully. However, he has no Constitutionally protected right to examine such evidence Prior to trial.

The leading case dealing with an accused's right to pretrial discovery is Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. There, counsel for one of the codefendants in a murder case asked prior to trial to examine the extrajudicial statements of the other defendant. A statement confessing to the actual killing was withheld by the prosecuting authorities, and the Court held that this amounted to a suppression of evidence in violation of the due process clause of the Fourteenth Amendment. That portion of the opinion most frequently relied upon is as follows:

'We now hold 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 punishment, 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.

Unfortunately, the United States Supreme Court has offered little assistance in exploring the ramifications of the broad principles of Brady. Giles v. Maryland, 1967, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737, found it unnecessary and inappropriate to examine the question of whether the prosecutor's constitutional duty to disclose extends to all evidence useful and admissible to the defense. Respondent has cited in oral argument Alderman v. United States, 1969, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, as supporting the right of a defendant in a criminal case to pretrial inspection of evidence favorable to his case in the hands of the prosecutor. We cannot agree, since Alderman deals with the procedure best suited for determining whether illegally seized evidence is a substantial part of the case against the defendant. Thus other federal and state courts have been left with the task of interpreting Brady.

The problem of whether the right to obtain evidence favorable or exculpatory to the defendant in the hands of the prosecution may be satisfied During rather than Prior to trial has been touched upon lightly by the federal circuit courts prior to Williams v. Dutton, 5th Cir. 1968, 400 F.2d 797, the case most favorable to respondent's position. For example, the defendant in United States v. Jordan, 2d Cir. 1968, 399 F.2d 610, 615, cert. denied, 393 U.S. 1025, 89 S.Ct. 496, 21 L.Ed.2d 469, complained that some of the favorable evidentiary material in the government's possession, which was disclosed to defense counsel, was not disclosed until trial. The court replied that it did not consider the complaint substantial without a showing of prejudice. In Lee v. United States, 9th Cir. 1968, 388 F.2d 737, it was suggested that the disclosure on the prosecution's part should be 'at the time of trial.' 388 F.2d at 739.

There has been no positive pronouncement in the case law of the federal district courts regarding this problem. One of the first cases to consider the matter was United States v. Manhattan Brush Co., S.D.N.Y.1965, 38 F.R.D. 4, which involved an alleged making of false claims against the government. A motion was made for all evidence in the possession or control of the United States Attorney favorable to defendants or which would tend to exculpate them under the authority of Brady. It was held that the defendant could not obtain Pretrial discovery of the statements of witnesses and summaries of witnesses' interviews, although they could obtain them After the witnesses testified at trial. After stating its belief that Brady referred to the application of tests of fairness to the prosecution at trial, the court concluded:

'In sum, while the Government has an important duty to conduct criminal prosecutions fairly, its obligations must be examined and tested after trial, not before. It would be difficult if not impossible to assess the fairness of a prosecution prior to the time the prosecution formally rests its case at trial.' 38 F.R.D. at 7.

On the other hand, United States v. Gleason, S.D.N.Y.1967, 265 F.Supp. 880, while first holding that not All favorable or exculpatory evidence need be disclosed, disagreed with Manhattan Brush as to whether Any disclosure should or may be ordered prior to trial. The court questioned whether there should be a blanket rule postponing to trial all disclosure of this type. Contra, United States v. Kaminsky, S.D.N.Y.1967, 275 F.Supp. 365, 368. Also, both United States v. Cobb, S.D.N.Y.1967, 271 F.Supp. 159, and United States v. Curry, N.D.Ill.1967, 278 F.Supp. 508, stand for the proposition that a right under Brady to pretrial discovery may attach if there is a showing by the defense of a particularized need. See also United States v. Westmoreland, S.D.Ind.1967, 41 F.R.D. 419, 427.

More recent federal district court decisions, however, tend to advert to the positions of the earlier cases. United States v. Armantrout, S.D.N.Y.1968, 278 F.Supp. 517, 518, without citing its opinion in Gleason, supra, cited instead Manhattan Brush, supra, for the proposition, which it followed, that no pretrial remedies were intended to be created by Brady. United States v. Wolfson, S.D.N.Y.1968, 289 F.Supp. 903, is in agreement that Brady does not place the prosecution under an obligation to make pretrial disclosures.

'Without any evidence before it, without knowing what the evidence may be, without being able to assess the impact of the Government's evidence, and without any knowledge of what may be in the prosecutor's possession, the Court must rest, at least at this stage of the proceedings, upon the Government's awareness of the warning implicit in the Brady v. State of Maryland decision.' 289 F.Supp. at 915.

United States v. Zirpolo, D.N.J.1968, 288 F.Supp. 993, took the approach that the full measure of disclosure obtainable in criminal proceedings is prescribed by the Federal Rules of Criminal Procedure; and thus Brady was not intended to create an additional pretrial discovery vehicle. However, neither Armantrout, Wolfson or Zirpolo dealt with a situation where there was a pretrial showing of a particularized need, and to this extent these opinions, although broadly drawn, are limited to their facts.

State cases on the subject are treated in a rather exhaustive annotation in 7 A.L.R.3d 32 (1966). While several cases have applied Brady during or after trial, none have held that Brady gives a defendant the right to pretrial discovery of favorable or exculpatory evidence. See, e.g., Mears v. State, 83 Nev. 3, 422 P.2d 230 (Nev.1967), cert. denied, 389 U.S. 888, 88 S.Ct. 124, 19 L.Ed.2d 188.

It is with this rather mixed background that the principal case supporting respondent's constitutional argument, Williams v. Dutton, 5th Cir. 1968, 400 F.2d 797, must be viewed. It arose as follows. Prior to the trial of a particularly gruesome murder case, counsel for defendant-appellant Williams moved for production, inter alia, of the record of grand jury proceedings. The state trial court denied these production motions, and defendant was convicted. Defendant argued in petitioning for a writ of habeas corpus in the federal district court that this denial violated rights protected by the due process clause, asserting that the refusal of...