State v. Spry, 20000244-CA.

• Decision Date: 08 March 2001
• Docket Number: No. 20000244-CA.,20000244-CA.
• Parties: STATE of Utah,. Plaintiff and Appellee, v. Sandra SPRY aka Sandra Chlopitsky, Defendant and Appellant.
• Court: Utah Court of Appeals

21 P.3d 675

2001 UT App 75

STATE of Utah,. Plaintiff and Appellee, v. Sandra SPRY aka Sandra Chlopitsky, Defendant and Appellant.

No. 20000244-CA.

Court of Appeals of Utah.

March 8, 2001.

W. Andrew McCullough, Orem, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Jeffrey T. Colemere, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before Judges BILLINGS, DAVIS, and ORME.

OPINION

BILLINGS, Judge:

¶ 1 Sandra Spry, aka Sandra Chlopitsky (Defendant), having obtained our leave to take an interlocutory appeal, appeals the trial court's order denying her motion to compel discovery and granting the State's motion for discovery. We affirm.

BACKGROUND

¶ 2 On August 5, 1999, at approximately 1:30 a.m., a police officer observed Defendant behaving suspiciously near an automated teller machine. The officer drove up to Defendant to investigate. Defendant approached the officer and began speaking to him. The officer could smell alcohol on Defendant's breath. Defendant denied drinking. The officer noticed an open alcoholic beverage container in Defendant's open convertible. Upon questioning, Defendant became angry and abusive, and refused to cooperate. She was placed under arrest. During an inventory search of the vehicle, the officer found a baggy containing a substance which tested positive as cocaine, and another which tested positive as methamphetamine. The officer also found scales, pipes, tubes, syringes, several small baggies, and additional containers of alcohol.

¶ 3 Defendant was charged with two counts of unlawful possession of a controlled substance, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1999), and one count of unlawful possession of drug paraphernalia, in violation of Utah Code Ann. § 58-37a-5 (1998).

¶ 4 Defendant's vehicle, after being impounded, was destroyed by fire. !Believing she was "roughed up" and that her car was wrongfully destroyed, Defendant filed a written complaint against the arresting officer with the Internal Affairs Division of the City of' South Salt Lake. A hearing was held on the complaint, which was tape recorded. After the hearing, Internal Affairs determined there was no cause for the complaint.

¶ 5 In the pretrial discovery stage of her prosecution, Defendant requested the internal affairs complaint and tape recording (collectively "internal affairs record") from the State pursuant to Rule 16(a)(1) of the Utah Rules of Criminal Procedure. The State denied this request.¹ Defendant then filed a motion to compel discovery of a copy of the internal affairs record.

¶ 6 The State filed a motion for discovery, requesting the names and testimony of defense witnesses, copies of expert reports, exhibits and investigative reports that would be used at trial.

¶ 7 The trial court denied Defendant's motion to compel discovery and granted the State's motion for discovery, finding that the State had shown good cause. This court granted Defendant's petition for interlocutory appeal to review the trial court's orders denying her motion to compel discovery and granting the State's motion for discovery.

ISSUES AND STANDARD OF REVIEW

¶ 8 At issue are the interpretations of Rule 16(a)(1) and Rule 16(c) of the Utah Rules of Criminal Procedure. While a trial court is generally allowed broad discretion in granting or denying discovery, see State v. Knill, 656 P.2d 1026, 1027 (Utah 1982), "[t]he proper interpretation of a rule of procedure is a question of law, and we review the trial court's decision for correctness." Ostler v. Buller, 1999 UT 99, ¶ 5, 989 P.2d 1073; see also State v. Bybee, 2000 UT 43, ¶ 10, 1 P.3d 1087.

ANALYSIS

I. Access to Internal Affairs Record

¶ 9 Rule 16(a)(1) provides that, upon request, the prosecutor shall disclose to the defense "relevant written or recorded statements of the defendant or codefendants" of which he has knowledge. Utah R.Crim. P. 16(a)(1). Defendant argues that the internal affairs record is a relevant written or recorded statement of Defendant and as such must be disclosed by the State so Defendant can adequately prepare her defense. While the internal affairs record may be a relevant written or recorded statement of Defendant, Rule 16(a)(1) requires that the prosecutor have "knowledge" of the internal affairs record before requiring disclosure of the same. See id. The State argues that it is not required to produce records when the prosecutor, staff, and investigating officers of Salt Lake County do not possess or have knowledge of the evidence contained therein.

¶ 10 In State v. Pliego, 1999 UT 8, 974 P.2d 279, the Utah Supreme Court addressed the issue of "whether [R]ule 16(a) requires a prosecutor to disclose to the defense records which he does not possess and of which he has no knowledge." Id. at ¶ 8. Pliego involved an appeal by a defendant from an order denying his motion to require the prosecution to obtain and produce the victim's mental and health records at the Adolescent Residential Treatment and Education Center (ARTEC), the Division of Family Services (DFS), and the Child Protective Services (CPS). See id. at ¶ 4.

¶ 11 The court held that Rule 16(a) did not require the prosecutor "to disclose or produce to the defense [the victim's] ARTEC, DFS, and CPS records." Id. at ¶ 14. The court stated, "[t]he record shows that neither the prosecutor, her staff, nor the investigating officers possessed or had knowledge of these materials or the evidence contained therein." Id.

¶ 12 What is more critical to our analysis, however, is the court's disapproval of one aspect of this court's decision in State v. Mickelson, 848 P.2d 677 (Utah Ct.App.1992), regarding the scope of the prosecution's discovery obligation. In Pliego, the defendant relied on Mickelson for the proposition that Rule 16(a) "requires the prosecutor to disclose [any] records in the possession of other state agencies." Pliego, 1999 UT 8 at ¶ 15, 974 P.2d 279 (alteration in original).

¶ 13 In Mickelson, we relied on several cases, including a decision of the United States Court of Appeals for the Third Circuit, United States v. Perdomo, 929 F.2d 967 (3rd Cir.1991), which held that the prosecution is required to disclose records that are "in the possession of some arm of the state." Perdomo, 929 F.2d at 971. Pliego expressly rejects this holding. See Pliego, 1999 UT 8 at 1115, 974 P.2d 279.

¶ 14 In rejecting Perdomo the supreme court reasoned that,

[i]n our view, [the Perdomo] requirement is too broad. Such a rule would place a herculean burden on the prosecutor to search through [the] records of every state agency looking for exculpatory evidence on behalf of the defendant ... [R]ule 16(a) of the Utah Rules of Criminal Procedure does not require as much. Rather, the prosecutor's disclosure duty arises only when he, his staff or the investigating officers come across exculpatory materials during their investigation. Therefore, to the extent that Mickelson adopted the Perdomo rule, we decline to follow it.

Id. at ¶ 18 (emphasis added).

¶ 15 In the instant case, it is undisputed that the Internal Affairs Division of the City of South Salt Lake is in possession of the internal affairs record. There is no evidence in the record to suggest that the Salt Lake County District Attorney's Office had knowledge of the internal affairs record (other than being apprised of its existence in this appeal), or came across the same in the course of its investigation. Further, the State has stipulated that it will not use the internal affairs record in this prosecution.

¶ 16 However, Defendant argues that the State has access to the internal affairs record through section 63-2-206 of the Government Records Access and Management Act (GRAMA).² The State does not dispute that it has potential access to the internal affairs record under GRAMA, however, it does not follow that the State must disclose it to Defendant under Rule 16(a)(1). Requiring the State to disclose to the defense all information to which it has "access" under GRMA "would place a herculean burden on the prosecutor to search through [the] records of every state agency" looking for relevant written or recorded statements on behalf of the defendant simply because the State has access to the records under GRAMA. Pliego, 1999 UT 8 at 1118, 974 P.2d 279. Such a result would violate the principles articulated by our supreme court in Pliego. We therefore affirm the trial court's denial of Defendant's motion to compel production of the internal affairs record.³

II. Discovery Order

¶ 17 Defendant next argues the trial court erred in granting the State's motion for discovery.⁴ Defendant contends that Rule 16(e) does not give the State "blanket discovery of Defendant's case." Under Rule 16(c),

[e]xcept as otherwise provided or as privileged, the defense shall disclose to the prosecutor such information as required by statute relating to alibi or insanity and any other item of evidence which the court determines on good cause shown should be made available to the prosecutor in order for the prosecutor to adequately prepare his case.

Utah R.Crim. P. 16(c) (emphasis added).

¶ 18 Utah appellate courts have not defined the good cause requirement for prosecutors under Rule 16(c). However, "good cause" has been defined as used in Rule 16(a)(5) which requires the defendant to show good cause for the court to order discovery of evidence from the prosecution.⁵

¶ 19 In Cannon v. Keller, 692 P.2d 740 (Utah 1984), the Utah Supreme Court addressed a challenge by the State which asserted that the trial court had abused its discretion under Rule 16(a)(5) by ordering the State to disclose evidence to the defendant. See id. at 743. The State argued that the defendant had not shown good cause because "the defendant failed to offer any evidence that disclosure was necessary for the preparation of the defense." Id. While the court agreed that the defendant had not shown good cause it nonetheless upheld the trial court's discovery...