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State v. Diprete5/1/1998
are for trial to be considered by the trial Justice in deciding which of the Rule 16(i) sanctions will most appropriately remedy the nondisclosure discovery violation. The trial Justice in this case correctly applied our sliding-scale analysis approach as well as our directive set out in Coelho and determined that only case dismissal was the appropriate sanction. His doing so was faultless.
I suggest, without fear of contradiction, that if any federal court had ever been confronted by the egregious and flagrant discovery violations coupled with the prosecutorial misconduct and the resulting prejudice to the defendant that is present in this case, there would most certainly now be federal precedent available to cite in support of the discovery violation sanction imposed by the trial Justice in this case. See, e.g., Manthei, 979 F.2d at 127-30 (McMillian, J., Dissenting).
In any event I do not find that simply because no federal appellate court has yet been confronted by the degree of prosecutorial misconduct present in this case and been called upon to uphold the pretrial dismissal of an indictment for prosecutorial misconduct and violation of pretrial discovery orders means that a Rule 16(i) case dismissal sanction is not permitted. I do not believe that a trial Justice's discretionary act requires precedential support in order for this Court to afford it the requisite appellate deference. Rather, I believe that the distinctive circumstances of a single case may call for a singular resolution. As Justice Cardozo wrote:
"[Some Judges'] notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule * * *. If that were all there was to our calling, there would be little of intellectual interest about it. The man who had the best card index of the cases would also be the wisest Judge. It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the Judge begins." Benjamin N. Cardozo, The Nature of the Judicial Process, 20-21 (1921).
I believe that the colors in this case do not exactly match any previous one. Therefore, the proper judicial response is not necessarily one that is dependent upon the existence of past precedent, federal or otherwise. Indeed, perhaps we have not had a previous pretrial case dismissal of this variety before us because no defendant has yet been able to uncover such a degree of deceit and trickery on the state's part until now, in this case. Nonetheless, this Court has recognized and acknowledged case dismissal as an available Rule 16(i) discovery violation sanction. See State v. Rawlinson, 526 A.2d 1278 (R.I. 1987); State v. Quintal, 479 A.2d 117 (R.I. 1984). Other state courts have done likewise. See, e.g., Commonwealth v. Hernandez, 656 N.E.2d 1237 (Mass. 1995); Mathis v. State, 819 P.2d 1302 (N.M. 1991); State ex rel Rusen v. Hill, 454 S.E.2d 427 (W.Va. 1994).
The majority erroneously asserts that "in all the Rhode Island cases cited by the state and by defendant save one" (State v. Quintal), this Court has never recognized or approved the pretrial dismissal of a criminal case because of a Rule 16 discovery violation. The majority, proceeding from that premise, then faults the trial Justice for relying upon Quintal, reasoning that Quintal was clearly distinguishable from this case because Quintal was based upon a self-executing order of dismissal that had been previously entered in that case. The majority obviously overlooks what this Court said and did in State v. Rawlinson, decided shortly after Quintal. In Rawlinson, this Cou
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