State v. Hall

• Decision Date: 28 September 2007
• Docket Number: CR-06-0813,CR-06-0814.
• Citation: 991 So.2d 775
• Parties: STATE of Alabama v. Antonia M. HALL. State of Alabama v. Carolyn A. Hall.
• Court: Alabama Court of Criminal Appeals

991 So.2d 775

STATE of Alabama v. Antonia M. HALL.

State of Alabama v. Carolyn A. Hall.

CR-06-0813

CR-06-0814.

Court of Criminal Appeals of Alabama.

September 28, 2007.

Rehearing Applications Denied December 14, 2007.

Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellant.

Russell Turner Duraski, Montgomery, for appellees.

WELCH, Judge.

These companion cases arise out of the trial court's decision to dismiss the indictments against Antonia M. Hall and his wife and codefendant, Carolyn A. Hall, when prosecutors failed to provide the Halls' attorney with a copy of a videotape that had been requested on numerous occasions.

Antonia Hall was indicted for third-degree burglary, a violation of § 13A-7-7, Ala.Code 1975, and first-degree theft, a violation of § 13A-8-3, Ala.Code 1975, for the theft of credit and debit cards, a television set, a laptop computer, and jewelry. Carolyn Hall was indicted for fraudulent use of a credit card, a violation of § 13A-9-14(b), Ala.Code 1975, for using one of the credit cards that her husband, Antonia, allegedly stole.

The record in both cases indicates the following. At the outset of the investigation in this matter, the Halls' attorney, Russell Duraski, discussed with law-enforcement officials the existence of a videotape that had been recorded at Calhoun Foods, the grocery store where Carolyn Hall was alleged to have used a stolen credit card. Duraski said he asked whether he could watch the videotape with investigators to determine whether the Halls were the people seen on the videotape using certain credit cards. The investigators told him they would "get with the prosecutors" and then let him view the tape with them. (R. 3.)

The Halls' position was that they were not involved in the theft and use of the credit cards, and they are "absolutely adamant" that they were not the people seen in the videotape. (R. 6.)

Duraski was never given the opportunity to view the videotape, and the Halls were arrested. On October 13, 2006, the day the Halls' preliminary hearing was to be held, Duraski had a conversation with a deputy district attorney and law-enforcement officials during which it was agreed that the Halls would waive the preliminary hearing in exchange for production of discovery, including the videotape at issue. Duraski said he was told that he would have the videotape "in a few days." (R. 3.) At that time, a police officer told Duraski he had the videotape.

The videotape was never produced, despite Duraski's repeated requests. Also, Duraski said he had been made aware that there was another videotape recorded at a business in Auburn. That tape also was not produced. The Halls filed a motion to compel discovery. At their arraignment on November 30, 2006, they again requested the videotape and made an oral motion to the trial court to supplement their written motion. On December 3, 2006, the trial court granted their motion to compel and ordered the prosecution to produce all discovery, including the videotape recorded at Calhoun Foods, on or before the close of business on December 8, 2006. (CR.24.)

In mid-January 2007, Duraski said he was told that the Calhoun Foods videotape had been "accidentally destroyed" (R. 4-5) and that it no longer existed. Duraski was provided with a photograph in lieu of the tape, but, he said, he was unable to make out anything about the person in the photograph.

The trial court asked for an explanation from the State as to why it either had not provided the Calhoun Foods videotape to Duraski or why it continued to promise him the tape if it had been destroyed. In ruling that the indictments against the Halls were being dismissed, the trial court said, "We went for months and months saying we're going to get you a tape when there wasn't one to get." (R. 11.)

The court continued its explanation for the dismissal of the indictments, saying:

"[T]hat is bad conduct on the part of the State, and we cannot just continue to make false representations like that. I mean, that is inappropriate. And Mr. Duraski's whole case, as I understand it from him, was whether or not these folks could be identified on the tape. In other words, if they were on the tape and you can identify them, then, fine, that speaks for itself. But even if you couldn't identify them, that didn't mean the case was going away. That just would tell Mr. Duraski, hey, I've got something good to argue at trial; you can't tell that's my folks. But the tape was very instrumental in his defense."

(R. 12.)

The trial court then reiterated that it was dismissing the indictments because the State's conduct was improper, saying, "[Y]ou cannot continue for months and make representations that are not true. I mean, that is totally improper." (R. 13.)

The State appeals from the dismissal of the indictments against both Antonia Hall and Carolyn Hall.

At the outset, we note that "`[t]he rules of criminal discovery are not "mere etiquette," nor is compliance a matter of discretion.'" State v. Moore, 969 So.2d 169, 176 (Ala.Crim.App.2006), quoting State v. Scott, 943 S.W.2d 730, 735 (Mo.Ct.App.1997). Rule 16, Ala. R.Crim. P., which provides for discovery in criminal cases, authorizes a trial court to impose sanctions against a party that fails to comply with a discovery order. Rule 16.5 states:

"If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection; may grant a continuance if requested by the aggrieved party; may prohibit the party from introducing evidence not disclosed; or may enter such other order as the court deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just."

It appears from the wording of Rule 16.5, Ala. R.Crim. P., that a circuit court, based upon its supervisory powers over proceedings before it, has the authority to dismiss an indictment because of the government's wrongful conduct. State v. Moore, 969 So.2d 169, 182 (Ala.Crim.App.2006). In addition, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), requires the government to disclose exculpatory evidence or risk sanctions.

There are limitations upon the circuit court's ability to dismiss an indictment on the grounds of the prosecution's wrongful conduct, however. To establish a Brady violation, for example, three elements must be proven: 1) the prosecution's suppression of evidence; 2) the favorable character of the suppressed evidence for the defense; and 3) the materiality of the suppressed evidence. Brady, 373 U.S. at 87, 83 S.Ct. 1194.

In Moore, this Court discussed at length the limitations upon the trial court's ability to dismiss an indictment based upon improper conduct of the prosecution.

"In Government of the Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir.2005), the federal district court reversed a lower court's dismissal of the charges against Fahie based on a Brady violation. The court stated: `Our research discloses no case where a federal appellate court upheld dismissal with prejudice as a remedy for a Brady violation.' 419 F.3d at 254 n. 6. The court then discussed the various federal circuits and their individual responses to prosecutorial misconduct that necessitates a retrial. The court stated:

"`Given the "societal interest in prosecuting criminal defendants to conclusion," it is especially important in the criminal context that a court applying sanctions for violation of Rule 16 carefully assess whether dismissal with prejudice is necessary to exact compliance with discovery obligations. [United States v.] Coleman, 862 F.2d 455 [(3d Cir.1988)]. In particular, as discussed above, a court must look to both the need to undo prejudice resulting from a violation and the appropriate deterrent value of the sanction in each case.

"`Other courts have considered the question of when a court may dismiss an indictment under its supervisory powers. The Ninth Circuit has held that "[d]ismissal under the court's supervisory powers for prosecutorial misconduct requires (1) flagrant misbehavior and (2) substantial prejudice." United States v. Kearns, 5 F.3d 1251, 1253 (9th Cir.1993). It has suggested that prosecutorial conduct might satisfy those requirements even where it would fail to justify dismissal under Brady directly. See [United States v.] Ross, 372 F.3d [1097] at 1110 [(9th Cir.2004)]; United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991). The Seventh Circuit has adopted a more restrictive approach, holding that a sanction under supervisory powers is only appropriate where the conviction could not have been obtained but for the failure to disclose exculpatory evidence. See United States v. Johnson, 26 F.3d 669, 683 (7th Cir.1994). At least two other circuits instruct courts to balance a number of factors in their choice of a sanction, including "the reasons for the Government's delay in affording the required discovery, the extent of prejudice, if any, the defendant has suffered because of the delay, and the feasibility of curing such prejudice by granting a continuance or, if the jury has been sworn and the trial has begun, a recess." United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir.1985); see also United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir.1988). While we appreciate the importance of all these factors, we believe that, to merit the ultimate sanction of dismissal, a discovery violation in the criminal context must meet the two requirements of prejudice and willful misconduct, the same standard applicable to dismissal for a Brady violation. Accordingly, we do not expect that trial courts will dismiss cases under their supervisory powers that they could not dismiss under Brady itself...