State v. Gibbons, 82-485

• Decision Date: 25 October 1985
• Docket Number: No. 82-485,82-485
• Parties: STATE of Vermont v. Nancy J. GIBBONS.
• Court: Vermont Supreme Court

Page 540

503 A.2d 540

146 Vt. 342

STATE of Vermont v. Nancy J. GIBBONS.

No. 82-485.

Supreme Court of Vermont.

Oct. 25, 1985.

John A. Rocray, Windham County State's Atty., and Cecelia L. Cunningham, Deputy State's Atty., Brattleboro, for plaintiff-appellee.

James W. Stevens, Brattleboro, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

PER CURIAM.

Defendant Nancy J. Gibbons, appellant herein, was convicted of operating a motor vehicle on Route 100 while under the influence of intoxicating liquor in violation of 23 V.S.A. § 1201(a)(2). She appeals from the judgment of conviction entered by the trial court.

The question presented for our consideration is whether the trial court erred in failing to order disclosure of training materials used by the State chemist and the arresting officer for operation of the breath collector device and gas chromatograph.

Defendant contends that the court's failure to order the State to provide the requested instructional materials prevented her attorney from developing an adequate basis for cross-examination of the State's chemist and the arresting officer.

In determining what evidence is favorable to an accused and material to either guilt or punishment, a prudent prosecutor will supply any evidence that is even arguably favorable to the defendant. See United States v. Countryside Farms, Inc., 428 F.Supp. 1150, 1154 (D.Utah 1977); see also State v. Bailey, 144 Vt. 86, 92, 475 A.2d 1045, 1048-49 (1984).

The prosecutor's role passes beyond that of an adversary. He or she is the conscience, not of an ordinary party to a dispute, but of a sovereign "whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment ...." Id. at 87, 83 S.Ct. at 1196-1197. Evidence 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." United States v. Bagley, 473 U.S. ----, ----, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (quoting Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)).

In the case at bar, the prosecutor failed to provide, and the trial judge failed to order disclosure of, instructional materials that might have been used to impeach the State's witnesses. This was dancing on the precipice of constitutional error. Impeachment evidence, as well as exculpatory evidence, is under the protective umbrella of Brady. Id. at ----, 105 S.Ct. at 3380.

The duty of a judicial officer, in ruling on discovery matters, is to ensure that there is no failure to disclose evidence favorable to the accused which would deprive the defendant of a fair trial. In this case, the defendant failed to demonstrate that, had the instructional materials been disclosed to the defense, the result of the proceeding would...