State v. Musumeci

• Decision Date: 04 August 1998
• Docket Number: No. 96-266-C,96-266-C
• Parties: STATE v. Robert MUSUMECI. A.
• Court: Rhode Island Supreme Court

Page 56

717 A.2d 56

STATE v. Robert MUSUMECI.

No. 96-266-C.A.

Supreme Court of Rhode Island.

Aug. 4, 1998.

Randy Olen, Providence, John F. Cicilline, Bristol, for plaintiff.

Lauren Sandler Zurier; Aaron Weisman, David D. Prior, Providence; Steven John DeLuca, for defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

FLANDERS, Justice.

In the middle of a criminal trial charging the defendant, Robert Musumeci (Musumeci), with illegal possession of marijuana, a Superior Court justice denied Musumeci's dismissal motion but granted his motion for a mistrial because of the state's grossly negligent (albeit nondeliberate) failure to comply in a timely manner with its discovery obligations. Ten months later, a second trial justice dismissed the charges against Musumeci for the same discovery violation that led to the earlier mistrial. The state's appeal from that adverse judgment requires us to answer the following question: Was the second trial justice warranted in dismissing the charges after the first trial justice had refused to do so and instead had declared a mistrial because of the state's late production of discoverable evidence? We hold that she was not. Absent proof of substantial prejudice accruing to Musumeci during the ten months between the mistrial declaration and the convening of the second trial that could not have been remedied by one or more alternative measures, the second trial justice should not have dismissed the charges.

Facts and Travel

In early 1993 an undercover police officer (officer) posed as a truckdriver working for the North Providence public works department (DPW). ¹ The officer befriended Musumeci, a regular DPW employee. Over the course of the next several months the officer repeatedly approached Musumeci and communicated his desire to obtain marijuana for a fictitious girlfriend. In time, Musumeci promised that he would try to secure some of this substance from his friends. Initially Musumeci failed or declined to make good on his illicit promise, claiming that he could not procure any marijuana of good quality. Eventually, however, Musumeci did deliver to the officer one-quarter ounce of "killer weed," later determined to be marijuana, in exchange for $50.

The state charged Musumeci with one count of unlawful delivery of marijuana in violation of G.L.1956 § 21-28-4.01(A)(2)(a) of the Rhode Island General Laws and the case proceeded to trial in the Superior Court. In his opening statement Musumeci's lawyer stated to the jury that he would prove police entrapment as a defense to the drug-delivery charge. He also suggested that Musumeci had never used and had never been involved with illegal drugs and that he had procured the marijuana merely as a favor to his new-found false friend at the DPW.

During cross-examination of the officer, whom the state called as its first trial witness, defense counsel learned for the first time that the officer had kept a daily log of his undercover investigation. But the state had failed to produce the log during pretrial discovery--or to notify defense counsel or the court of its existence--despite Musumeci's unobjected-to discovery requests calling for the production of such information. The prosecutor claimed that until the officer's trial cross-examination, he too had been unaware of the log's existence. Nonetheless the state immediately located and produced the log, giving it to Musumeci later that same day. As it turned out, certain entries in the log suggested that, contrary to defense counsel's assertions in his opening statement, Musumeci was intimately familiar with the local drug culture and had in fact used drugs on other occasions. In addition the log alluded to other individuals at the DPW who may have witnessed or overheard some of the alleged communication between Musumeci and the officer that led to the drug purchase.

Musumeci moved to dismiss the charge. He argued that the taint flowing from the log's late disclosure and the now-impeachable representations made in his counsel's opening statement merited dismissal or, alternatively, suppression of the log. The trial justice ruled that although the prosecution's nondisclosure of the log was apparently unintentional, it constituted a clear violation of Rule 16 of the Superior Court Rules of Criminal Procedure. However, this first trial justice expressly rejected Musumeci's entreaties to exclude the log from the prosecution's trial evidence altogether or to dismiss the charge outright, considering those remedies unwarranted. He defended his decision explaining, "I think it's too severe a sanction to dismiss it [the information]." Having failed to secure a dismissal or suppression of the evidence, the defendant then requested that the trial justice declare a mistrial. The trial justice granted this request because, in reliance upon the evidence before him, he determined this would be the appropriate sanction to rectify any prejudice to defendant. It is notable that the trial justice did not grant the mistrial conditioned on further consideration of defendant's motion for dismissal, nor did he in any other fashion reserve ruling on the requested dismissal. Rather he flatly denied defendant's motion for dismissal and granted defendant's motion for mistrial. ²

Shortly thereafter, Musumeci filed a motion to dismiss based solely on double-jeopardy grounds. The motion was continued to the time of trial. On February 1, 1996, some ten months after the mistrial, the parties convened for Musumeci's second trial before another justice of the Superior Court (the second trial justice). Without objection from the state, Musumeci's lawyer questioned the officer and his supervisor concerning the circumstances surrounding the log's nonproduction before the start of the first trial and concerning what they knew about the contents thereof. Although defense counsel examined these police officers extensively, he made no showing that he had attempted to interview any of the potential witnesses mentioned in the log, nor did he prove that any of these potential witnesses were now unavailable or were otherwise incapable of being interviewed. Nor did defense counsel make any showing of any additional form of prejudice to Musumeci resulting from the log's late disclosure--other than the initial surprise he suffered upon learning of the log's existence and of the factual contradictions between the log's entries and his opening statement in the first trial.

Before ruling on the dismissal motion, the second trial justice acknowledged that the state's nondisclosure of the log appeared to be unintentional and that the first trial justice had declined to dismiss the indictment. Nonetheless, she granted Musumeci's renewed motion to dismiss the charges on the grounds that the state's grossly negligent nondisclosure of the log had prevented defense counsel from interviewing potential witnesses while events were still fresh in their minds and that the dismissal sanction would serve as a deterrent to any future such instances of negligent nondisclosure of discoverable evidence by the prosecution. The second trial justice noted that she considered the state's Rule 16 violation to be a "very, very grave" matter and that "very elemental preparation would have disclosed the existence of these extremely important notes."

The state appeals from the second trial justice's dismissal order. It alleges that, in the circumstances of this case, (1) dismissal of the indictment was an abuse of the second trial justice's discretion and (2) the law-of-the-case doctrine forbade the second justice from reexamining the first justice's ruling in regard to the appropriate sanction for the state's Rule 16 violation.

Analysis

I Propriety of Dismissal as a Discovery-Violation Sanction

Rule 16(i) of the Superior Court Rules of Criminal Procedure authorizes the trial court to impose a specified range of sanctions for discovery violations or to "enter such other order as it deems appropriate." Rule 16, like its federal counterpart, seeks to promote "[b]roader discovery by both the defense and the prosecution [in order to] contribute to the fair and efficient administration of criminal justice by aiding in informed plea negotiations, by minimizing the undesirable effect of surprise at trial, and by otherwise contributing to an accurate determination of the issue of guilt or innocence." State v. Coelho, 454 A.2d 241, 244 (R.I.1982) (quoting Fed.R.Crim.P. 16 advisory comm. note).

Because the trial justice is in the best position to determine the harm resulting from a discovery-rules violation and can best assess the possibility of mitigating that harm, his or her ruling on what sanction should be imposed on that score will not be overturned absent a clear abuse of discretion. Coelho, 454 A.2d at 244-45; see also State v. Quintal, 479 A.2d 117, 119 (R.I.1984); State v. Darcy, 442 A.2d 900, 902 (R.I.1982). However, the trial court's discretion is not without limits and is reviewable by this Court for an alleged abuse thereof. See Coelho, 454 A.2d at 245; Darcy, 442 A.2d at 902. In Coelho we set out four factors to be considered by the trial court, together with all the other facts and circumstances, when choosing an appropriate sanction for a party's violation of Rule 16's discovery and disclosure requirements: (1) the reasons for the nondisclosure or other violation, (2) any prejudice caused to the opposing party, (3) the feasibility of rectifying any prejudice, and (4) any other relevant factors. 454 A.2d at 245.

Although a dismissal of the pending charges is not one of the expressly enumerated discovery violation sanctions specified by Rule 16, this Court previously has recognized that pretrial case dismissal is both an available and a permitted Rule 16(i) discovery-violation remedy in circumstances where there has been a "repeated unexcused failure of the prosecution to make discovery...