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State v. Diprete5/1/1998
ns less severe than dismissal, he rejected them after concluding that less drastic sanctions would do "nothing to impress upon the prosecution that it cannot be allowed to benefit from having acted in a manner that is less than constitutional and ethical in the pursuit of convictions." Such a concern is a noble one but is neither sufficient, standing alone, to justify dismissal, nor the least severe remedy available under the test articulated above to cure the prejudice suffered by defendants. Accordingly, I conclude that the trial Justice abused his discretion in dismissing the indictments, and I would sustain the state's appeal on that basis.
The trial Justice pointed out in his decision one claim of incurable prejudice made by defendants.
Defendants claim that they have been forced to surrender the element of surprise, which is vital to effective cross-examination, in an effort to ensure that their clients' constitutional rights to exculpatory information prior to trial be protected. The defendants argue that this result, thrust upon them by prosecutorial misconduct, constitutes substantive prejudice which a continuance for any length of time cannot cure."
The trial Justice, however, made no finding that he agreed with this defense argument. Even were the trial Justice to make such a finding upon the remand of this case, dismissal is not the least severe remedy available to rectify the situation. Under Rule 16, the testimony of witnesses implicated by prior prosecutorial misconduct could be limited or excluded, within the discretion of the trial Justice, so that the playing field is once again level. See Super. R. Crim. P. 16(i) ("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, it may * * * prohibit the party from introducing in evidence the material which or testimony of a witness whose identity or statement were not disclosed."); see also State v. Gomes, 690 A.2d 310, 319 (R.I. 1997) (concluding that trial justice did not abuse his discretion in precluding defendant's witnesses from testifying when the defendant had failed to comply with rules of discovery); State v. Engram, 479 A.2d 716, 719 (R.I. 1984) (same).
Whenever a party has failed to comply with the requirements of Rule 16, resulting in the withholding of information incontrovertably essential to the opposing party in carrying out effective cross-examination of witnesses, the sanction of testimony or witness exclusion is appropriate. Here the prosecution apparently immunized witnesses, entered into non-prosecution agreements, took other active steps to sanitize state witnesses, and then deliberately withheld this information from defendants. The failure to sanction this tactical withholding renders nugatory the avowed purpose of Rule 16 "to ferret out procedural * * * prejudice." State v. Coelho, 454 A.2d 241, 245 (R.I. 1982). Because of the state's efforts on its witnesses' behalves, one can reasonably surmise that those witnesses became sufficiently indebted to the prosecution to become transformed, in essence, into blank slates upon which the state could write the story of its choice. Certainly a trial Justice would be acting within his or her discretion in excluding the testimony of those witnesses entirely.
The solicitude that both the trial Justice and my Dissenting colleague have shown for the rights and protections of defendants is warranted. The majority apparently accepts the trial Justice's findings of fact in toto, along with the disquieting picture of prosecutorial misconduct painted by those facts. Equally troubling, however, is an outcom
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