Opinion
I.D. No. 1004002460.
Date Submitted: April 14, 2011.
Date Decided: April 21, 2011.
Upon Defendant's Motion for a New Trial or Judgment of Acquittal: GRANTED.
Joseph S. Grubb, Esq., Deputy Attorney General, Department of Justice, 820 N. French Street, Wilmington, Delaware 19801, Attorney for the State of Delaware.
A. Dale Bowers, Esq., The Law Office of A. Dale Bowers, P.A., P.O. Box 6047, Wilmington, Delaware 19804, Attorney for Defendant David D. Hill.
OPINION
Background
Defendant David D. Hill ("Defendant") was arrested on April 3, 2010 and charged with Possession of a Firearm During the Commission of a Felony, Possession of a Deadly Weapon by a Person Prohibited, Reckless Endangering 1st, and Resisting Arrest. He was incarcerated on these charges from April 3, 2010 until August 2010, when he was released on bail. On June 15, 2010, counsel for Defendant served a discovery request upon the State, asking for (1) "[d]isclosure of any and all uses of a pen register (dialed number recorder) and of interception of telephone communications," (2) "[d]isclosures of any and all exculpatory information, documents, material, evidence, or witnesses known to the government or any government agent, including any such information which is favorable or significant to the defense or which might create a reasonable doubt as to guilt," and (3) [c]opies of any and all oral or written statements, confessions, or admissions of the Defendant . . . including transcripts of recorded statements. . . ." On October 25, 2010 (the day before trial was to begin), at approximately 5:00 p.m., the State faxed a summary of the contents of six recorded prison phone calls between the Defendant and others to defense counsel. On October 26, 2010, the Court continued the trial as a result of the State's late production and ordered the State to produce the actual recordings and transcripts. The State produced the recordings and transcripts to defense counsel later that same day.
Defendant's Motion for New Trial and/or Judgment of Acquittal, Ex. 1, at ¶ 11, D.I. #47.
Id. at ¶ 17.
Id. at ¶ 1.
Id. at Ex. 2.
Order dated October 26, 2010, D.I. #18.
Defendant's Motion for New Trial and/or Judgment of Acquittal, Ex. 3, D.I. #47.
Defendant's Motion for New Trial and/or Judgment of Acquittal, Ex. 1, at ¶ 11, D.I. #47.
This matter was tried to verdict from December 14, 2010 to December 16, 2010. During trial on December 15, 2010, the State called Investigator Thomas Dempsey ("Investigator Dempsey") as a witness, who testified that he had reviewed over 170 phone calls made by Defendant to various individuals while Defendant was incarcerated. Following this testimony, defense counsel advised the Court that the State failed to disclose these 164 additional recordings before trial. In response, the Court allowed the parties to conduct limited voir dire of Investigator Dempsey regarding his understanding of the State's obligation to disclose Brady material. Investigator Dempsey testified that he understood the State's obligation to produce any exculpatory or potentially exculpatory material, and that after reviewing approximately 170 calls, he did not find any Brady material. On December 15, 2010, the Court ordered the State to produce all prison recordings to defense counsel, which it did the following day. On December 16, 2010, the jury found Defendant Hill guilty on all counts.
Dempsey Trial Tr., 5:2-3, December 15, 2010. Presumably, the 170 calls reviewed by Investigator Dempsey includes the six calls already produced by the State to defense counsel on October 26, 2010, leaving 164 calls which were not produced until the last day of trial, December 16, 2010.
Trial Tr., 29:17-23, December 15, 2010.
Trial Tr., 35:21-23, December 15, 2010.
Dempsey Trial Tr., 40:19-41:11, December 15, 2010.
Defendant's Motion for New Trial and/or Judgment of Acquittal, Ex. 4, D.I. #47. The recordings produced included calls made from April 3, 2010 to April 20, 2010; May 4, 2010 to May 19, 2010; and July 1, 2010 to August 4, 2010. Defendant's Brief in Support of Motion for New Trial or Judgment of Acquittal Based on Newly Discovered Evidence, Ex. 7, D.I. #50.
Defense counsel did not have time to review the 164 recordings, which contained over twenty-four hours of phone conversations, before trial concluded on December 16, 2010. However, once defense counsel reviewed the recordings post-trial, he discovered several allegedly exculpatory statements made by Defendant while he was incarcerated. On January 6, 2011, Defendant filed a Motion for a New Trial and/or Judgment of Acquittal pursuant to Superior Court Criminal Rule 33.
These alleged exculpatory statements are as follows: (1) On April 5, 2010 at 3:50 p.m., during a conversation between the Defendant and the now-deceased co-defendant, Jose Charriez ("Charriez"), also known as "Pope," Charriez stated "Motherf***ers acting like they but . . . they acting like they wasn't in the van . . . Motherf***ers are acting like it was just me and you."; (2) On April 6, 2010 at 2:40 p.m., during a conversation between the Defendant and his father, David Brown ("Brown"), Defendant stated that "they found the gun in somebody else's house. That was not my gun."; (3) On April 6, 2010 at 2:50 p.m., during a conversation between the Defendant and his girlfriend, Corey Barba ("Barba"), Defendant said "tell your mom . . . tell her I didn't do it."; (4) On May 6, 2010 at 3:45 p.m., during a conversation between the Defendant and Barba, the Defendant said "I didn't do this s**t, n****r lied on me." Defendant also stated that "I was never there. This b***h is trying to lie on me."; and (5) On May 6, 2010 at 9:15 p.m., during a conversation between the Defendant and Barba, the Defendant said "I ain't really worried about her (Briana Mills) because her brother (Terrence Mills) going crazy. She know I didn't do this s**t. They just wanted me off the streets." Defendant's Brief in Support of Motion for New Trial or Judgment of Acquittal Based on Newly Discovered Evidence, at 6-7, D.I. #50.
Defendant's Motion for New Trial and/or Judgment of Acquittal, D.I. #47.
Parties' Contentions
In support of his Motion for a New Trial, Defendant argues that a new trial must be granted because the State failed to disclose all prison recordings of Defendants' conversations, which constituted a discovery violation that unfairly prejudiced his trial strategy. Given that defense counsel made a discovery request for "any and all uses of a pen register (dialed number recorder) and of interception of telephone communications and transcripts or communications" and for "all oral or written statements . . . of the Defendant . . . including transcripts of recorded statements," on June 15, 2010, Defendant claims that the State's failure to disclose the existence of any recordings until the evening before this case went to trial was a patent violation of Superior Court Criminal Rule 16 ("Rule 16") governing discovery and inspection of information.Defendant claims that the State further violated discovery rules by failing to produce or even identify the approximately 164 other prison recordings, the existence of which only came to light during Investigator Dempsey's testimony at trial. Defendant argues that this delayed production unfairly prejudiced the plea bargaining process and his trial strategy because had the State turned over the recordings in a timely manner, Defendant would have been able to make an informed decision as to whether he would accept the State's plea offers or stand trial.
Defendant's Brief in Support of Motion for New Trial or Judgment of Acquittal Based on Newly Discovered Evidence, at 8, D.I. #50.
Id. at 10-11.
Defendant also alleges that the State's disclosure of recordings is incomplete because there are additional recordings which still have not been produced by the State. The approximately 164 recordings produced on December 16, 2010 only contained calls made from April 3, 2010 to April 20, 2010; May 4, 2010 to May 19, 2010; and July 1, 2010 to August 4, 2010. Defendant claims he made approximately four calls per day for every day that he was incarcerated, spanning a period of several months. As a result, Defendant argues that there are more recordings that have been screened by Investigator Dempsey and the State but have not yet been produced.
Id. at Ex. 7.
Id. at 12.
Alternatively, Defendant argues that if this Court determines that the State's discovery violations warrant exclusion of the prison recordings, the jury's verdict is unsustainable. As a result, Defendant requests that this Court enter an Order granting judgment of acquittal as to all offenses.
Defendant's Motion for New Trial and/or Judgment of Acquittal, at 6, D.I. #47.
Id.
The State claims that Defendant's Motion for a New Trial or Judgment of Acquittal should be denied because there was no discovery violation by the State in that the undisclosed recordings were not relevant to the case and defense counsel was aware that additional recordings existed. Further, the State asserts that it complied with the Court's Order of October 26, 2010 by turning over the six phone recordings, and that it was under no further obligation to produce additional recordings. The State rejects Defendant's argument that non-disclosure of the recordings adversely affected his trial strategy and his ability to make an informed decision during plea negotiations. The State claims that the prosecutor originally assigned to the case had no knowledge of the calls until October 25, 2010 and, therefore, it was the State who was actually prejudiced, not the Defendant. Further, the State argues that the Defendant was not entitled to a plea offer as a matter of right, and that the plea he was offered carried the same period of incarceration as that which had been offered before the State was aware of the recordings.
State's Response to Motion for New Trial and/or Judgment of Acquittal, at ¶ 4, D.I. #51.
Id. at ¶ 8.
Id.
Id.
Id.
The State also points out that because Defendant was a party to these phone conversations, he can hardly claim later that he had no knowledge of what was said. The State argues that Defendant's father and girlfriend, who were parties to the phone calls, testified for the defense at trial and therefore the Defendant could have questioned them about their knowledge of Defendant's role in the shooting and any allegedly exculpatory statements that were made while he was incarcerated.
Id. at ¶ 10.
Id.
In Defendant's Reply Brief in support of his Motion, he refutes the State's claim that it was under no further obligation to produce additional recordings because it complied with the Court's Order of October 26, 2010. Defendant argues that the Court's Order did not relieve the State of its continuing duty to produce the additional 164 recordings. Rule 16(a)(1)(A) mandates disclosure of all relevant materials, not only those which the State finds advantageous to its case. Further, Defendant notes that under Rule 16(c), the State has a continuing duty to disclose additional evidence or material that was previously requested and is subject to discovery. Defendant submits that because the State failed to fully comply with Rule 16 and the Court's Order of October 26, 2010, Defendant's trial strategy was unfairly prejudiced and his ability to prepare his defense was limited, thereby mandating a new trial.
Defendant's Reply Brief in Support of Motion for New Trial or Judgment of Acquittal, at 2, D.I. #52.
Id.
Id.
Id.; see Super. Ct. Crim. R. 16(c).
Defendant's Reply Brief in Support of Motion for New Trial or Judgment of Acquittal, at 4, D.I. #52.
Defendant also rejects the State's argument that two of the defense witnesses, Defendant's father and girlfriend, should have testified as to their first-hand knowledge of the substance of the phone calls. The State provided no explanation as to the amount, nature, and duration of the recordings. Defendant claims that it was unreasonable for him to learn the precise nature of all 164 calls which contained more than 24 hours of conversation. As a result, even if the defense witnesses had testified to the substance of the conversations contained in the recordings, Defendant would not have been able to effectively refresh their recollections. Defendant also asserts that there are at least three defenses he could have raised at trial if the additional recordings had been timely produced. Defendant claims that he was unfairly deprived of the ability to use the recordings at trial to support the testimony of his witnesses or to rebut or impeach the testimony of the State's witnesses.
Id. 6.
Id.
Id.
Id.
These potential defenses are as follows: (1) If the calls had been provided, he would have been able to establish reasonable doubt through his conversation with the now-deceased former co-defendant because those recordings tend to show that there was a third passenger in the vehicle on the day of arrest, and this would create reasonable doubt that Defendant was the alleged shooter; (2) Defendant could have used the calls to rebut the statements presented by the State that tended to show he was involved in the crimes; and (3) Defendant could have used a conversation he had with his father to challenge the "flimsy" connection between the gun recovered and himself. See Defendant's Brief in Support of Motion for New Trial or Judgment of Acquittal Based on Newly Discovered Evidence, at 14-16, D.I. #50.
Id.
Discussion
Defendant makes two arguments in support of his Motion for a New Trial. The first argument is that a new trial must be granted because the State failed to disclose all prison recordings, which constituted a discovery violation that unfairly prejudiced Defendant's trial strategy. The second argument is that the State committed a Brady violation in failing to produce exculpatory evidence which deprived Defendant of the right to a fair trial. Because the Court finds the State's discovery violation sufficient to warrant a new trial, the Court need not reach the alleged Brady violation. Discovery ViolationDefendant argues that the State did not comply with discovery rules in failing to produce all of his recorded statements after such a request was made on June 15, 2010. First, it is important to note that a defendant possesses a "constitutionally guaranteed right of access to evidence" that is subject to disclosure pursuant to Rule 16. Under Rule 16(a)(1)(A), upon the defendant's request, "the state shall disclose to the defendant . . . any relevant written or recorded statements made by the defendant . . . within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney general. . . ." Under Rule 16(c), the State has an affirmative and continuing duty to disclose "additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule." The State's duty to disclose begins when the initial request is made and continues throughout trial.
Cf. RANDY J. HOLLAND ET AL., STATE CONSTITUTIONAL LAW: THE MODERN EXPERIENCE 385 (WEST ed., 2010) (stating that an accused has a "constitutionally guaranteed right of access to evidence"). The Delaware Supreme Court "has recognized that the `obligation to preserve evidence is rooted in the due process provisions of the [F]ourteenth [A]mendment to the United States Constitution and the Delaware Constitution, article I, section 7.'" Id. (quoting Deberry v. State, 457 A.2d 744, 751-52 (Del. 1983)).
Super. Ct. Crim. R. 16(a)(1)(A).
Super. Ct. Crim. R. 16(c).
Ray v. State, 587 A.2d 439, 441 (Del. 1991). See also Skinner v. State, 575 A.2d 1108, 1125 (Del. 1990) (stating that "parties have a continuing duty to disclose new material which has been previously requested"). Further, "[w]here . . . the State discovers relevant material shortly before or during trial, this material, like that discovered during the early stages of investigation, must be disclosed to the defendant." Ray, 587 A.2d at 441.
The discovery obligations under Rule 16 are to be interpreted broadly. "[U]pon the request of the defendant, the State must disclose any statements made by the defendant" and the State has a continuing obligation to respond specifically and accurately to specific discovery requests made by the defense.
The discovery procedures contained in Rule 16 are an essential element of the accused's effort to defend himself and obtain a fair trial. Unfortunately, too often [the Supreme] Court has found it necessary to reverse convictions because of the State's failure to comply with the clear requirements of discovery, particularly as it applies to information in the hands of the police who are acting as agents of the State.
Ray, 587 A.2d at 442. "[T]he policy consideration of ensuring that a defendant receives a fair trial . . . is embodied in Superior Court Criminal Rule 16(a). . . ." Johnson, 550 A.2d at 913.
Secrest v. State, 679 A.2d 58, 64 (Del. 1996); Ray, 587 A.2d at 441.
Taylor v. State, 620 A.2d 859, at *1 (Del. 1993) (TABLE).
Fuller v. State, 922 A.2d 415, at *2 (Del. 2007) (TABLE).
Ray, 587 A.2d at 442. "[T]he policy consideration of ensuring that a defendant receives a fair trial . . . is embodied in Superior Court Criminal Rule 16(a). . . ." Johnson, 550 A.2d at 913.
When the State fails to disclose evidence to which the defense is entitled under Rule 16, it limits a defendant's ability to prepare his defense and "[s]uch dereliction cannot be deemed harmless."
Id. at 442.
In this case, although the State did in fact comply with the Court's Order of October 26, 2010 to produce the transcripts and actual recordings of the six phone calls to defense counsel, it was not relieved of its continuing obligation to produce the additional 164 recordings under Rule 16(a)(1)(A) and (c). The State's duty to disclose began upon receipt of Defendant's discovery request on June 15, 2010 and continued throughout the December 2010 trial. Merely complying with the Court's Order of October 26, 2010 is no excuse to forego producing additional discoverable material. As a matter of law, it is the State's duty to determine if Investigator Dempsey was in possession of additional relevant recordings and then produce those recordings to the Defendant. This duty became even more apparent when the trial that was scheduled to begin on October 26, 2010 had to be continued as a result of the State's late production of the six recordings (which the State itself concedes was a discovery violation). It became incumbent upon the prosecutor to exercise due diligence and further investigate whether Investigator Dempsey was in possession of additional recordings. The State admits in its Response to Defendant's Motion for a New Trial that "best practice would have been to provide all recorded phone calls to defense counsel from the outset."
The State's argument that it complied with the Court's Order of October 26, 2010 to produce the six recorded phone calls and, therefore, it was under no further obligation to produce the 164 additional recordings which it considered to be irrelevant ignores the fact that the Defendant's discovery requests and Rule 16(a)(1)(A) and (c):
(a) Disclosure of evidence by the state. —
(1) Information subject to disclosure. —
(A) Statement of defendant. — Upon request of a defendant the state shall disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements made by the defendant or a codefendant (whether or not charged as a principal, accomplice or accessory in the same or in a separate proceeding), or copies thereof, within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney general;
(c) Continuing duty to disclose. — If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, such party shall promptly notify the other party or that other party's attorney or the court of the existence of the additional evidence or material.
State's Response to Motion for New Trial and/or Judgment of Acquittal, at ¶ 6, D.I. #51.
Id. at ¶ 8.
"Statements in the possession of the police are deemed to be within the control of the State and the State has a continuing duty to determine whether the police have secured additional discoverable material." The State works closely with investigators during the prosecution of a case and, therefore, statements available to its investigators may be deemed within the State's control as well. Investigator Dempsey was in charge of the Trap Star Investigation (an unrelated murder case) in which the Defendant was a "person of interest." According to the State prosecutor, Investigator Dempsey mentioned that he had heard phone calls between the Defendant and Charriez. The prosecutor asked Investigator Dempsey if there was any discussion about the instant case in the phone calls between the Defendant and others. Investigator Dempsey "indicated that he thought maybe there was, he wasn't sure . . . but he would check." Thereafter, Investigator Dempsey turned over six recordings to the prosecutor. On the date originally scheduled for trial, October 26, 2010, the prosecutor stated "I don't even know how many calls [the Defendant] made; however, there were six calls in total that referenced this particular matter." At that time, the burden was on the prosecutor to further investigate how many calls Investigator Dempsey reviewed referencing this particular matter.
Ray, 587 A.2d at 441 n. 3 (citing Johnson v. State, 550 A.2d 903, 911 n. 6 (Del. 1988)).
At trial, the prosecutor and Investigator Dempsey agreed that they are both employed by the Department of Justice and "work together." Dempsey Trial Tr., 24:15-21, December 15, 2010.
Martyniak Trial Tr., 3:15-18, October 26, 2010.
Martyniak Trial Tr., 3:21-23, October 26, 2010.
Martyniak Trial Tr., 4:3-5, October 26, 2010.
Martyniak Trial Tr., 4:6-8, October 26, 2010.
Martyniak Trial Tr., 4:9-13, October 26, 2010.
Martyniak Trial Tr., 4:11-13, October 26, 2010.
The State suggests that because Defendant was a party to the phone conversations he cannot claim he had no knowledge of what was said. The State not only ignores the fact that there were approximately 24 hours of recorded conversations and the conversations occurred over several weeks, it attempts to sidestep its clear obligation under Rule 16 to disclose the recordings and produce all of Defendant's statements. There is no language within Rule 16 to suggest that if the Defendant is a party to written or recorded statements, then the State's obligation to produce those statements is excused. These additional 164 recordings were in the sole possession of the State. Upon his June 15, 2010 discovery request, Defendant believed that the State was producing all the evidence it had that was relevant to his case. It was the State's duty to subpoena the recordings from Investigator Dempsey, who was responsible for reviewing the recordings and handing over all Brady material to the State, which, in turn, should have been provided to Defendant. However, to the best of Defendant's knowledge, no subpoena was produced in this case and Defendant was not given the opportunity to review the adequacy of the State's request for recordings. Because the recordings were only available to Defendant through the State's disclosure, he could not have uncovered them through independent or reasonable means. There were 170 calls made over several weeks. Defendant cannot reasonably be expected to remember everything he said See Super. Ct. Crim. Rule 16. Defendant's Reply Brief in Support of Motion for New Trial or Judgment of Acquittal, at 5, D.I. #52. during those calls. Further, it would be extremely difficult, if not impossible, for the defense to meaningfully question its witnesses about these specific alleged exculpatory statements. Therefore, the fact that Defendant was a party to these phone calls did not relieve the State of its duty to produce the Defendants' statements.
Id. at 6.
Id. at 5.
Id.
Id. at 5-6.
Id.
Id.
Defendant argues that the State's failure to comply with Rule 16 unfairly prejudiced his trial strategy because he did not have the opportunity to present these alleged exculpatory statements to the jury. If the State has failed to comply with Rule 16, a defendant's "conviction will be set aside only if the violation prejudiced the defendant." Even when substantial evidence exists which would support a guilty verdict, a defendant's conviction must be reversed when a discovery violation prejudices substantial rights of the defendant.
Defendant's Brief in Support of Motion for New Trial or Judgment of Acquittal Based on Newly Discovered Evidence, at 9, D.I. #50.
Johnson, 550 A.2d at 913.
Id. Further, the Johnson Court went on to state that:
When the defense makes specific authorized discovery demands, the State should make specific and accurate replies. When the State replies, as it did here, by sending a short general cover letter and accompanying materials, but does not answer the defense's specific demands, the defense has a right to assume everything demanded has been provided in full. When the State provides a casual reply in answer to specific defense demands, the State is to be held accountable for any inaccuracies in its general reply.Id. at 910-11.
In this case, the State's failure to timely disclose the additional 164 recordings prejudiced substantial rights of the defendant. Defendant was denied the opportunity to present these arguably exculpatory statements at trial in order to mount a proper defense and create a reasonable doubt of his guilt in the jurors' minds. If the Defendant had access to the recorded statements when the initial discovery request was made on June 15, 2010, he could have raised three possible defenses at the December 2010 trial. Because of the State's discovery violation, Defendant was deprived of his Sixth Amendment right to a fair trial. The fact that substantial evidence may exist in this case to support a guilty verdict is irrelevant because the State's discovery violation prejudiced substantial rights of the Defendant, thereby entitling him to a new trial.
See supra note 12.
See supra note 39. While the Johnson Court noted that "if there had been full responses to discovery demands, the defendant might have availed himself of his constitutional right to remain silent," Defendant.
The right to a fair trial is included within the Sixth Amendment to the United States Constitution which states that:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defen[s]e.U.S. CONST. amend. VI. See also Del. CONST. art. I, § 7 (stating the procedural rights of an accused in criminal prosecutions).
Johnson, 550 A.2d at 913.
Defendant claims that there are additional recordings which have not been produced by the State. Assuming that Defendant made approximately four calls per day from April 2010 until August 2010, the State's production on December 16, 2010 of calls made from April 3, 2010 to April 20, 2010; May 4, 2010 to May 19, 2010; and July 1, 2010 to August 4, 2010 was incomplete. The State is obligated to produce all recorded statements, spanning from April 3, 2010 until Defendant's release in early August 2010.
Conclusion
The State's failure to comply with Rule 16 in its delayed disclosure of the 164 additional recordings constitutes a discovery violation. This delayed disclosure precluded the Defendant from effectively using the recorded statements at trial and, thus, violated his Sixth Amendment Right to a fair trial. Under these circumstances, Defendant is entitled to a new trial. For the aforementioned reasons, Defendant's Motion Hill might have availed himself of his constitutional right to testify at trial if the State had disclosed all of his recorded statements. Johnson, 550 A.2d at 913. for a New Trial is hereby GRANTED. Defendant's Motion for Judgment of Acquittal is DENIED.
See supra note 72.
See Super. Ct. Crim. R. 29. "It is only where the State has offered insufficient evidence to sustain a verdict of guilt that [a] motion [for judgment of acquittal] will be granted." State v. Biter, 119 A.2d 894, 898 (Del. Super. Ct. 1955). See also Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982) (stating that a motion for judgment of acquittal "is to be granted only when the state has presented insufficient evidence to sustain a verdict of guilt"). In this case, the Court finds that even with the alleged exculpatory statements proffered by the Defendant, there is sufficient other evidence from which a reasonable jury could find for the State, thereby rendering Defendant's Motion for Judgment of Acquittal denied.
IT IS SO ORDERED.