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State v. Diprete5/1/1998
witness whose identity or statement not disclosed, or it may enter such other order as it deems appropriate." (Emphasis added.)
The majority errs in disavowing this Court's long-standing practice of applying an abuse-of-discretion standard when reviewing a trial Justice's imposition of sanctions, including dismissal, for discovery violations. See, e.g., State v. St. Jean, 554 A.2d 206, 210 (R.I. 1989); State v. Ramos, 553 A.2d 1059, 1068 (R.I. 1989); State v. Quintal, 479 A.2d 117, 119 (R.I. 1984); State v. Verlaque, 465 A.2d 207, 213 (R.I. 1983).
In applying the heretofore unquestioned abuse-of-discretion standard, I conclude that the dismissal of the twenty-two counts of the indictment was an abuse of the trial Justice's discretion in this case. In discussing the imposition of sanctions for discovery violations, the federal courts have identified three factors that trial Justices must consider in exercising their discretion in respect to sanctions.
"These include: (1) the reasons for the government's delay in producing the materials, including whether it acted intentionally or in bad faith; (2) the degree of prejudice, if any, to the defendant; and (3) whether the prejudice to the defendant can be cured with a less severe course of action, such as granting a continuance or a recess." United States v. Maples, 60 F.3d 244, 247 (6th Cir. 1995).
See also United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997), cert. denied, 1998 WL 153253 (April 6, 1998); United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988). The third prong of this well-reasoned test has been interpreted to require a trial Justice to impose the least severe sanction that will cure the prejudice in order to achieve the required remedial effect.
Although this Court has never explicitly adopted the "least severe sanction necessary" doctrine of the federal courts, the rule comports with our prior case law. For example, in State v. Silva, 118 R.I. 408, 412, 374 A.2d 106, 109 (1977), we reversed a judgment of conviction and held that the trial court abused its discretion in excluding the defendant's alibi testimony. The trial Justice had excluded the alibi testimony as a sanction for the defendant's noncompliance with his obligations under Rule 16(c). In reversing the trial Justice, we concluded that "the circumstances certainly did not justify the extreme action taken by the trial Justice," and the case was remanded for a new trial. Id. at 411, 412, 374 A.2d at 108, 109. In State v. Darcy, 442 A.2d 900 (R.I. 1982), we vacated the defendant's convictions of driving to endanger, death resulting, and held that the requested mistrial should have been granted because the trial Justice admitted into evidence "a highly prejudicial statement made by the defendant, although the state had not disclosed the existence of that statement in response to the defendant's request for discovery." Id. at 901. In so holding, we observed that " he imposition of any Rule 16 sanction is a matter within the sound discretion of the trial Justice. * * * If no other available discretionary measures can possibly neutralize the harmful effect of improperly admitted evidence, then a mistrial should be declared." Id. at 902. (Emphases added.)
Under the least-severe-sanction-necessary rule, a dismissal for discovery violations would be upheld on appeal only if the defendant has suffered incurable prejudice. Although defendants in this case made such an allegation, the trial Justice made no express finding of incurable prejudice. Rather, the trial Justice, rightly concerned about deterring future prosecutorial misconduct, chose to dismiss the charges. Although the trial Justice had evaluated sanctio
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