State v. BluntState v. Blunt
- Reporters:
- , , ,
- Before:
- Sandstrom
[¶ 1] Charles Blunt appeals from a district court order denying his motion for a new trial. Blunt argues the court erred in denying his motion for a new trial, because the State violated discovery rules. Although we conclude the State likely violated the discovery rules, a careful review of the entire record reflects that the information contained in the apparently undisclosed documents was contained in other documents provided to Blunt. Concluding that Blunt has not established he was prejudiced by the apparent discovery violations, we affirm.
I
[¶ 2] Blunt was the Executive Director of Workforce Safety and Insurance (“WSI”) from 2004 to 2007. The State Auditor’s Office conducted a performance review of WSI in 2006, and the Auditor’s report questioned the use of public funds at WSI. As a result of the Auditor’s report, Blunt was charged with two counts of misapplication of entrusted property in violation of
[¶ 3] Count I charged Blunt with a class B felony for misapplying more than $10,000 in WSI funds for gift certificates given to WSI employees; food, beverages, flowers, balloons, decorations, costume rentals, ornaments, and gifts for WSI meetings; food and convention expenses provided to legislators; payment of sick leave; and failure to recoup relocation expenses from a WSI executive.
See
[¶ 4] A jury trial was held and the jury found Blunt guilty on Count I and not guilty on Count II. The court entered an order deferring imposition of sentence. Blunt appealed the order, and this Court affirmed. See State v. Blunt, 2010 ND 144, 785 N.W.2d 909.
[¶ 5] Shortly after the appeal, the State filed a “Motion in Litis Contestatio”
1
requesting the district court decide whether the State committed discovery violations under
[¶ 6] The district court denied Blunt’s motion for a new trial. The court ruled there was no
Brady
or
[¶ 7] The district court had jurisdiction under
II
[¶ 8] Blunt argues the State violated
[¶ 9]
[¶ 10] If the prosecution fails to comply with
[¶ 11] “ ‘
[¶ 12] Here Blunt served the State with a discovery request. It included a request that the State allow him to inspect and copy or photograph any papers or documents in the prosecution’s possession, custody, or control that were material to preparing his defense or that the prosecutor intended to use as evidence at trial. He also requested a list of the prosecution’s witnesses and any statements the witnesses made.
[¶ 13] There was no evidence the State disclosed copies of the Wahl memorandum and Quinn’s investigation report. The Wahl memorandum was a memo from Wahl to the prosecutor providing a summary of meetings and discussions he had with WSI executives about Spencer and the relocation expenses. Quinn’s investigation report included notes from a telephone conversation he had with Wahl about Spencer’s relocation expenses. Wahl was listed as a prosecution witness, and the State was required to disclose these documents under
[¶ 14] Although for the purposes of this opinion the State violated discovery rules, Blunt has failed to show he was significantly prejudiced by the violations. Blunt claims Wahl was the State’s key witness on the issue of Spencer’s relocation expenses and his testimony supported the State’s claim that Blunt’s decision not to recoup the relocation expenses was contrary to law and the opinion of the Attorney General’s office. Blunt contends the Wahl memo and Quinn investigation report were critical to his case because he could have used the documents to show there was not probable cause for alleging illegality as to the Spencer relocation expenses and to help the jury understand all of the facts, because he could not effectively counter the State’s evidence without these documents. He contends it is not clear that the jury would have found him guilty of Count I if it had had all the information about the relocation expenses, because the State alleged Blunt should have attempted to recover $7,500 for the relocation expenses and without the relocation expenses the jury may not have found the value of the misapplied property exceeded $10,000.
[¶ 15] The Wahl memo is dated November 8, 2007, and contained information about Spencer’s resignation, including why the auditors began questioning whether WSI should seek repayment of Spencer’s relocation expenses and why they decided not to make a recommendation about the expenses. The memo states Blunt was not forthcoming with information about Spencer’s decision to leave his position at WSI, the auditors were initially informed Spencer “resigned,” and they began to question whether Spencer was required to repay the relocation expenses, but Blunt later provided new information about Spencer’s decision to leave and made it appear the decision was not voluntary. The memo states, “Due to the new information provided by Mr. Blunt, we determined, in consultation with a representative of the Attorney General’s Office, there was not a voluntary resignation so it was determined to drop the recommendation we had drafted.”
[¶ 16] Quinn’s investigation report states that he spoke with Wahl on November 8, 2007, about the relocation expenses:
The purpose of the phone call was to discuss moving expenses that had been paid to Spencer when Spencer was initially hired by WSI. Wahl stated that if Spencer resigned, Spencer would have to pay back the moving expenses, but if Spencer had been forced out or fired, that Spencer would not have to pay back the expenses. Wahl stated that moving expenses were a “grey area” and that Wahl was not sure if non payment would violate a state statute. Wahl stated that Wahl had never really seen this issue before, so is not clear on the legality of it. Wahl stated that since Spencer’s resignation was non voluntary, that Wahl felt it was a “non issue” for the auditor’s office.
[¶ 17] Blunt did not request an eviden-tiary hearing on his motion for a new trial, and he did not submit any affidavits to support his claims. It is not clear how the memo or investigation report would have changed Wahl’s testimony. During the trial, Blunt’s attorney asked Wahl about Spencer’s resignation:
Q. Mr. Wahl, when I ask you — I want to ask you a question about Mr. David Spencer.
If his leaving WSI was involuntary, then your opinion as a state auditor is that the recoupment of relocation or moving expenses would be a moot point. Correct?
A. I guess, that would relate to a legal question, so we would present the information that we had available to us at the time and contact our legal counsel, which is the Office of the Attorney General.
Q. Well, you have already given testimony regarding the meeting with Mr. Blunt and Ms. Jodi Bjornson October 24,2006. Right?
A. Correct.
[[Image here]]
Q. And you specifically state to Mr. Blunt and Ms. Bjornson that if Mr. Spencer’s leaving WSI was involuntary, then the recoupment of relocation expenses becomes a moot point. Correct?
A. Yes.
Wahl also testified that the relocation expenses were not included in the final published audit. Wahl did not testify that Spencer’s resignation was voluntary and that he believed WSI had a legal obligation to seek repayment of the relocation expenses. Absent the presentation of any evidence to support Blunt’s claims, it is not clear how Wahl’s testimony would have changed.
[¶ 18] Furthermore, Blunt possessed but did not use other evidence that contained the same information about the State Auditor’s decision on the relocation expenses. The C99, which is part of a document from the State Auditor’s Office about the WSI audit, addressed the issue of whether Blunt had an obligation to attempt to recover any of the funds WSI paid to Spencer to reimburse his relocation expenses and said, “Eventually we were told (and convinced) the separation was other than voluntary.” There was evidence, and Blunt’s attorney conceded, Blunt had a copy of the C99 with the handwritten notes prior to trial. The handwritten notes stated, “based on discussions with Attorney General’s Office determination was made the separation was other than voluntary; letter offering position requires 50% pay back if leave voluntarily in first 2 years.” Blunt did not use the information in either version of the C99 during the trial. He claims he did not use the C99 because there was no context to it, he did not know when it was created, and it might “open up a can of worms” and could lead to testimony that he lied to the auditors about Spencer’s resignation. The Wahl memo also contained information that could raise similar issues. The memo included statements that Blunt withheld information about Spencer’s resignation from the auditors and knew his actions were wrong. On this record, it is not clear the disclosure of the Wahl memo would have affected Wahl’s testimony.
[¶ 19] There was other evidence and testimony presented during the trial that Spencer’s decision to resign was not voluntary. Spencer testified Blunt told him he had to resign or he would be fired and he resigned shortly thereafter. Spencer testified his resignation was not voluntary, Blunt told him he had to leave, and he would have continued working at WSI if Blunt had not told him to leave. Jodi Bjornson, WSI’s general counsel, testified she was involved in discussions about Spencer’s employment, there were problems with how he treated staff, he was potentially creating liability issues for WSI, and she told Blunt Spencer had to leave. Bjornson testified she recommended WSI not seek repayment of Spencer’s relocation expenses. James Long, Chief of Support Services at WSI, testified Blunt told him the employees under Spencer’s supervision told Blunt Spencer had to leave or they would. Long testified he recommended Blunt fire Spencer and testified Blunt knew Spencer had anger management problems. Long testified Blunt told him he knew he needed
[¶ 20] Although an “open file policy” does not abrogate the requirement that evidence be disclosed, it is a factor that may be considered in deciding whether a defendant was significantly prejudiced by a discovery violation.
See Addai,
2010 ND 29, ¶ 44, 778 N.W.2d 555. We have said, “[A] defendant is in a weak position to assert prejudice from the prosecution’s failure to produce requested documents or other materials under
[¶ 21] Blunt failed to establish he was significantly prejudiced by the State’s failure to disclose the requested documents. We conclude the district court did not abuse its discretion by denying Blunt’s motion for a new trial.
Ill
[¶ 22] We affirm.
[¶ 23] GERALD W. VANDE WALLE, C.J., WICKHAM CORWIN, D.J., DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur. [¶ 24] The Honorable WICKHAM CORWIN, D.J., sitting in place of KAPSNER, J., disqualified.
Notes
. There is no basis in North Dakota statute, rule, or caselaw for a “motion in litis contes-tatio.‘’ Black‘s Law Dictionary explains that “litis contestatio” is a Roman Law “final agreement of the parties to a suit on the formula the praetor would issue to the judex.” Black’s Law Dictionary 1017 (9th ed.2009). The district court did not decide the State’s motion, and instead decided Blunt’s motions.