State v. Hilling

Decision Date11 June 1974
Docket NumberCr. N
Citation219 N.W.2d 164
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. David Everett HILLING, Defendant and Appellant. o. 431.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. In a criminal case, the prosecution has a constitutionally mandated duty under the 'Brady rule' to disclose to the defense favorable or exculpatory material known to, or in the hands of, the prosecution (including to police) upon demand.

2. Information reflecting adversely on the credibility of a witness for the prosecution is information which must be disclosed by the prosecution under the 'Brady rule.'

3. The 'Brady rule' duty of the prosecution to disclose exists from the time the demand is made, but a reasonable time will be allowed for compliance, taking into account the needs of the defense.

4. Where compliance with the 'Brady rule' by the prosecution is made impossible without fault or negligence on the part of the prosecution, noncompliance is legally excusable.

5. The duty to disclose under the 'Brady rule' is unrelated to the good faith or bad faith of the prosecution.

6. The 'Brady rule' is separate from, and not related to, the 'Jencks rule,' Rule 16(h), N.D.R.Crim.P., which requires production of documents after a witness has testified.

7. The 'Brady rule' and the 'Jencks rule' (Rule 16(h) N.D.R.Crim.P.) are separate from and not related to the rule which provides for discovery in criminal cases (Rules 16(a) to (g), N.D.R.Crim.P.) and the general rule relating to production of documents used to refresh recollection.

8. The right to impeach by cross-examination as to prior inconsistent statements is an important aspect of the right of cross-examination, and is unrelated to any of the several rights of discovery in criminal cases.

9. A deprivation of effective cross-examination as to prior inconsistent statements on a material matter is a deprivation of due process of law.

10. The right to cross-examine is a constitutional right.

11. A party should not be required to vouch for a hostile or adverse witness or a witness he is compelled to call, and such a witness may be cross-examined by the party calling him.

12. A constitutional error will not be held harmless unless the court can declare a belief that it is harmless beyond a reasonable doubt.

13. A statement by a witness that papers were stolen, without more, is not an accusation that the defendant stole them, and does not require a mistrial.

Thomas F. Kelsch, State's Atty., Bismarck, for plaintiff and appellee.

Kent A. Higgins, Bismarck, for defendant and appellant.

VOGEL, Judge.

This is an appeal from a judgment entered on a jury verdict whereby the defendant-appellant, David Everett Hilling, was found guilty of the crime of delivery of a controlled substance, lysergic acid diethylamide (LSD), to an undercover agent for the North Dakota Bureau of Criminal Investigation (hereinafter 'Crime Bureau'), a violation of Section 19.03.1--23(1)(b), North Dakota Century Code.

For conviction, the State relied principally upon the testimony of its agent, Gregory Eastburn, and his reports of events which he witnessed on August 17 and 18, 1971, the latter being the date of the alleged offense.

An abbreviated account of agent-reporting procedures utilized by the Crime Bureau is necessary to an understanding of the issues presented on appeal. According to Eastburn's testimony, at the end of each day's activities he would return to his apartment where he would dictate an account of that day's events into a tape recorder. When he had dictated several tapes he would arrange for their surreptitious transfer to the Crime Bureau Office, where they were transcribed by a secretary. These tapes and the transcriptions of them were called 'daily reports.'

Since each daily report may have contained the accounts of several activities concerning more than one suspect, and since the case against any one suspect may consist of events occurring over a period involving several daily reports, the undercover agent later referred to the 'daily reports' in writing this 'case report,' a compilation of all activities concerning one suspect and one alleged criminal act. The transcripts of daily reports were thus eventually read and initialed by the agent, and were used by him to write a case report.

Prior to the preliminary hearing, held on March 2, 1972, the State provided counsel for the defendant with a copy of the case report, but not the daily reports. On April 5 the defendant filed a motion for disclosure of all favorable or exculpatory information, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The defendant also filed a motion specifically asking production of copies of daily reports prepared by Eastburn on August 17 and 18, 1971. The court granted the Brady motion, but denied the motion for production of the daily reports on the basis, in part, that such motion was 'premature.'

There were serious discrepancies between the daily report and the case report, as the following parallel quotations show:

                Case Report                   Daily Report
                -----------                   ------------
                "On August 18, 1971, at       "On August 18, 1971, at
                1400 hours, on the sandbar,   1400 hours, on the sandbar
                I met a Bob Crotty,           I met a Bob Crotty
                who was accompanied by        who informed me that he
                one David Hilling of          had found a party who
                Bismarck.  Bob Crotty, at      had some acid for sale
                that time introduced me       and that he was selling
                to Hilling.  At this time      it in lots of 100.  However
                my exact words were to        at that time, I told
                Dave Hilling, 'I understand   him that I was only interested
                you have some acid            in $25 worth
                for sale.'  Hilling assured    He then told me that he
                me that this was              would have to talk it over
                correct and that he was       with his partners.  At
                selling it in lots of 100.    this time, he instructed
                At that time I told him       me to follow him and he
                that I was only interested    proceeded to a home
                in buying $25 worth.          . . .  We were met
                He then told me that he       at the door by a Dave
                would have to talk to the     Hilling and at this time
                other partners who he         my exact words were to
                was dealing with and at       Dave Hilling, 'I understand
                this time, he instructed      that you have some
                me to follow him to his       acid for sale'."

Eastburn's testimony was similar to the statements in the case report. It is obvious that the daily report is far less incriminating of Hilling, the defendant here, than the case report. The daily report makes no mention of Hilling until Eastburn is introduced to him at the Hilling home, after making preliminary arrangements for the sale with Crotty, while the case report puts Hilling on the sandbar where the preliminary negotiations were made and makes him a participant in the negotiations.

The discrepancies between the two reports are considerable, and the defendant claims that through a combination of circumstances and rulings he was deprived of the opportunity to discover them prior to trial and the opportunity to cross-examine as to them at the trial.

Specifically, the defendant makes three claims:

First, that he was entitled to discovery of the daily reports as favorable or exculpatory information prior to trial;

Second, that he was deprived of his right to cross-examine as to the prior inconsistent statements of Eastburn contained in the daily reports; and

Third, that he was prejudiced by a testimony of Eastburn claiming that the daily reports were 'stolen.'

The defendant claims that all three of these errors are of constitutional dimensions.

The defendant might never have known of the discrepancy between the daily report and the case report if it were not for the fortuitous circumstance that the defendant's father had a close acquaintance who worked at the office of the State Bureau of Criminal Investigation, where the records of undercover agents were kept. Apparently, the employee noticed the discrepancies and made copies of the daily reports and furnished them to the father of the defendant, who ultimately placed them in the hands of the defense attorney. She went further and allowed the father, about a week before the trial, to 'borrow' her keys to the office, with the consequence that the original records were stolen from the office prior to trial.

In preparation for trial, the defense attorney subpoenaed the Superintendent of the Bureau of Criminal Investigation and directed him to bring the original daily reports to court. By that time the originals were gone and the superintendent so reported when he responded to the subpoena on the opening day of trial.


In determining whether there was a duty to produce the daily reports and whether that duty was breached, dates become important. The original demand for production was made on April 5. The State's Attorney first learned that the daily reports had been stolen on May 6 and advised the defense attorney of that fact on May 8. The trial began on May 10. The theft took place sometime between April 27 and May 6.

As will appear, there was considerable confusion in the courtroom as to whether and when there is a duty of the prosecution to disclose information to the defense. At various times rulings were made on the basis of whether or not the document had been used to refresh recollection, whether it was in evidence, whether the witness had testified on the subject matter, and whether the exhibit was, in fact, contradictory to his testimony.

There are at least four rules, statutory or court-made, relating to the duty of the prosecution to produce documents for the defense.

One rule is the so-called Brady rule, articulated in Brady v. Maryland, Supra, which requires production on demand of information known to the prosecution (including...

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