CITY OF GRAND FORKS, Plaintiff and Appellee, v. Darin Lee RAMSTAD, Defendant and Appellant.
No. 20020120.
Supreme Court of North Dakota.
March 26, 2003.
2003 ND 41 | 658 N.W.2d 731
Steven M. Light, Larivee & Light, Grand Forks, ND, for defendant and appellant.
VANDE WALLE, Chief Justice.
[¶1] Darin Ramstad appealed from a judgment of conviction for driving under the influence of alcohol. We affirm.
I
[¶2] On February 20, 2002, Darin Ramstad was arrested for driving under the influence of alcohol. He was taken to the Grand Forks Police Department, where he consented to an intoxilyzer test. The test indicated Ramstad‘s blood alcohol level was .13 percent.
[¶3] On February 21, 2002, Ramstad‘s attorney served discovery requests upon the City. Among numerous other items, Ramstad requested that the City disclose:
d. the dates of all simulator tests (if applicable) run by the operator within twelve months prior to the date of Defendant‘s tests to verify the validity of his test certification;
....
g. the date of [the breath analyzer‘s] latest certification;
h. any repair records of the breath analyzer;
i. whether the breath analyzer has been tested for radio frequency interference (RFI) and, if so, the dates of the testing, the circumstances under which the testing was done, the person who tested the analyzer, the FRI [sic] sources to which the analyzer was subjected, and the distance each source was to the analyzer;....
[¶4] In response to Ramstad‘s discovery requests, the City on February 28, 2002, provided some of the items which had been requested. The cover letter indicated that the enclosed items constituted the City‘s “entire file” on Ramstad‘s case. The requested items regarding the breath analyzer and test operator were not provided.
[¶5] Trial was set for May 15, 2002, with jury selection scheduled for May 14, 2002. On May 14, 2002, Ramstad served a motion to suppress evidence of the chemical test results because of the City‘s failure to provide the requested discovery materials. That same day, the City faxed the requested materials to Ramstad‘s attorney.
[¶6] On May 15, the morning of the scheduled trial, the trial court heard the suppression motion in chambers. Ramstad‘s attorney advised the court that Ramstad had retained an expert who would have testified if the breath analyzer
[¶7] The breath test results were admitted into evidence and the jury returned a guilty verdict. A judgment of conviction was entered and Ramstad appealed.
II
[¶8] Ramstad argues the requested information was exculpatory or could have been used to “impeach” the accuracy of the breath analyzer, and therefore the City‘s failure to disclose those records violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
[¶9] In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment. Id. at 87; see State v. Sievers, 543 N.W.2d 491, 495 (N.D.1996). To establish a Brady violation, the burden is upon the defendant to show: “(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.” State v. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345; see also Sievers, at 496. Ramstad has failed to establish two of the elements of a Brady violation.
[¶10] The initial inquiry when a defendant alleges a Brady violation is whether the undisclosed material was favorable to the defendant. The United States Supreme Court has stated that the first component of a Brady violation is that “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). As noted in 26 James Wm. Moore et al., Moore‘s Federal Practice § 633.06[3] (3d ed.2002), “[i]f the evidence is not exculpatory or valuable for impeachment purposes, the evidence is not Brady material and the government has no duty to disclose it.” We have previously indicated that “by definition, Brady materials are plainly exculpatory,” and Brady does not apply where it is merely “speculative whether the evidence might have been exculpatory, or might have been inculpatory.” State v. Steffes, 500 N.W.2d 608, 613 (N.D.1993). If the defendant fails to demonstrate that the evidence was favorable to him, there is no Brady violation. See Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345.
[¶11] Ramstad has failed to present any evidence that the undisclosed materials would have been exculpatory or would have called into question the accuracy of the breath analyzer. Under these circumstances, Ramstad has failed to demonstrate a Brady violation.
[¶12] Ramstad argues that his expert was denied the opportunity to examine these materials before trial, and therefore could not render an opinion whether the records would have called into question the accuracy of the test results. Ramstad could have presented a post-trial affidavit from the expert, in conjunction with a motion for a new trial, if the undisclosed evidence proved to be exculpatory or impeaching. Failure to disclose Brady material is a due process violation, and may provide the basis for a new trial. See Sievers, 543 N.W.2d at 495-97; State v. Anderson, 336 N.W.2d 123, 128-29 (N.D. 1983); 26 James Wm. Moore et al., Moore‘s Federal Practice § 633.03[6] (3d ed.2002). The due process clause, through Brady, is not implicated where the evidence is not “plainly” favorable to the defendant, and it is merely speculative whether the evidence might have been exculpatory or valuable for impeachment. See Steffes, 500 N.W.2d at 613. In raising a Brady challenge, it was incumbent upon Ramstad to supplement the record if necessary to establish that the undisclosed materials were in fact favorable to him.
[¶13] In addition, a defendant alleging a Brady violation must show that he could not have obtained the undisclosed evidence with reasonable diligence. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345; Sievers, 543 N.W.2d at 496. We have clearly stated that “[t]he Brady rule does not apply to evidence the defendant could have obtained with reasonable diligence.” Sievers, at 496; see also 25 James Wm. Moore et al., Moore‘s Federal Practice § 616.06[4] (3d ed.2002). The materials sought in this case were public records, readily obtainable through the State Toxicologist‘s office. Ramstad has failed to provide any reason why he could not, with reasonable diligence, have obtained these materials on his own.
[¶14] We conclude Ramstad has failed to demonstrate the City‘s failure to disclose these materials constituted a Brady violation.
III
[¶15] Ramstad argues the City‘s failure to provide the requested documents violated
[¶16]
(C) Documents and Tangible Objects. Upon written request of a defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the prosecution, and which are material to the preparation of the defendant‘s defense, or are intended for use by the prosecutor as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. Upon written request of a defendant the prosecuting attorney shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and which are material to the preparation of the defense or are intended for use by the prosecutor as evidence in chief at the trial.
(2) Failure to Comply With Request. 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 that party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not dis
closed, relieve the requesting party from making a disclosure required by this Rule, or it may enter such other order as it 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.
[¶17]
[¶18] The City does not dispute that the documents requested by Ramstad were material to the preparation of his defense and that Ramstad was entitled to copies of the documents. The City contends, however, that it had no duty to provide the documents because (1) it had already disclosed the entire contents of the prosecutor‘s file; (2) the cover letter sent with the previously disclosed materials advised Ramstad to contact the prosecutor‘s office if he had other questions or needed additional information; and (3) Ramstad could have obtained the documents himself from the State Toxicologist‘s office.
[¶19] The City contends that it fully complied with
[¶20] We agree with the rationale of the court in Lawyer Disciplinary Bd. v. Hatcher, 199 W.Va. 227, 483 S.E.2d 810, 815 (1997), in which the court noted that “the existence of an ‘open file policy,’ is not enough, of itself, to excuse a prosecutor‘s failure to disclose exculpatory evidence” under
[¶22] The City next claims it had no duty to provide the requested documents because it advised Ramstad it was providing its entire file and he could contact the prosecutor‘s office if he had any other questions or needed additional information. The City contends that, if Ramstad wanted materials beyond these contained in the disclosed prosecutor‘s file, he should have contacted the prosecutor‘s office long before the beginning of trial. In essence, the City is saying if a defendant really wants the material he previously requested, he must ask for it a second time.
[¶23] Finally, the City argues it had no duty to provide the requested documents because Ramstad could have obtained them on his own from the State Toxicologist‘s office. The language of
[¶24] The City contends State v. Sievers, 543 N.W.2d 491 (N.D.1996), and State v. Thomas, 420 N.W.2d 747 (N.D.1988), support its assertion that the prosecution has no duty under
[¶25] Having established a violation of
[¶26] If the defendant fails to show he was significantly prejudiced by a discovery violation, a trial court‘s failure to exclude evidence or impose other sanctions under
[¶27] Ramstad could have at any time readily obtained the requested documents from the State Toxicologist‘s office. Furthermore, Ramstad has still failed to make any showing that the requested documents would have called into question the accuracy of the breathalyzer or the results of his chemical test.1 Under these circumstances, Ramstad has failed to demonstrate he was significantly prejudiced by the discovery violation, and we conclude the trial court did not abuse its discretion.
[¶28] While we do not believe either the prosecution or defense would place their case or client at risk to prove a point, in view of our prior caution in Ensminger that the “open file” policy is not the end of the prosecution‘s obligation under
[¶29] Although we have affirmed the judgment of conviction because there is no significant prejudice, we add an additional warning to prosecutors in this state. This is not the first instance in which the prosecution has argued it has no duty to provide discovery under
IV
[¶30] We conclude the City‘s failure to disclose the requested documents did not violate Brady and, although the City‘s conduct violated
[¶31] CAROL RONNING KAPSNER, and WILLIAM A. NEUMANN, JJ., concur.
MARING, Justice, concurring specially.
[¶32] I concur specially because I am of the opinion that when
[¶33] On May 14, 2002, Ramstad served a motion to suppress the evidence because of the City‘s failure to provide the discovery materials. On that same day, the City faxed the discovery materials to Ramstad. At the conclusion of the trial on May 15, 2002, the jury returned a verdict of guilty and a judgment of conviction was entered. A motion for a new trial based on newly discovered evidence must be brought within 30 days of the discovery of the facts on which the motion is made.
[¶34] For this reason, I concur specially.
[¶35] Mary Muehlen Maring
SANDSTROM, Justice, concurring specially.
[¶36] I agree with the result reached by the majority and write separately to emphasize that in this case the State Toxicologist‘s office, like the Highway Patrol in State v. Fitterer, 2002 ND 170, ¶ 2, 652 N.W.2d 908, was by law and in fact closely involved in the development of the criminal case. On the other hand, the defense in this case submitted a vast discovery request containing some 146 questions and subparts, much of it bearing little relation to the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or
[¶37] Most of the provisions of our
[¶38] There is no doubt that there is a special responsibility for agencies involved in the investigation and preparation of the prosecution case. United States v. Bryant, 439 F.2d 642, 650 (D.C.Cir.1971) (The duty of disclosure affects not only the prosecutor but investigative agencies.). The opinion of the Court correctly points out that the duty to disclose cannot be limited by what the prosecutor chooses to place in the file. United States v. Scruggs, 583 F.2d 238, 242 (5th Cir.1978) (“Nor is the government excused from its obligation by the fact that the documents were in the possession of the FBI prior to trial.” (citations omitted)).
[¶39] The defense, for its part, submitted what appear to be highly burdensome interrogatories outside the scope of Brady or
(d) Regulation of Discovery.
(1) Protective and Modifying Orders. Upon a sufficient showing the court at any time may order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make the showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the party‘s statement must be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. (2) Failure to Comply With Request. 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 that party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, relieve the requesting party from making a disclosure required by this Rule, or it may enter such other order as it 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.
[¶40] The rule does not contemplate strategic gamesmanship by either side; it requires fair and reasonable disclosure to serve the ends of justice.
[¶41] Dale Sandstrom
GERALD W. VANDE WALLE
CHIEF JUSTICE