State v. Doyle

245 P.3d 206

STATE of Utah, Plaintiff and Appellee,

v.Jullyn DOYLE, Defendant and Appellant.

No. 20090148-CA.

Court of Appeals of Utah.

Dec. 9, 2010.

Michael S. Brown and Michael D. Esplin, Provo, for Appellant.

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.

Before Judges McHUGH, ORME, and CHRISTIANSEN.

MEMORANDUM DECISION

CHRISTIANSEN, Judge:

¶ 1 Defendant Jullyn Doyle appeals her convictions for possession or use of a controlled substance, see Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.2010),¹ and possession of drug paraphernalia, see id. § 58-37a-5(1). Doyle argues that the trial court (1) improperly denied her motions to dismiss and to arrest judgment that were based on alleged prosecutorial misconduct and an alleged discovery violation, and (2) improperly admitted evidence of prior bad acts. We affirm.

I. Prosecutorial Misconduct and Discovery Violations

¶ 2 Doyle contends that the prosecutor knew or should have known that the State's material witness, Shantel Cuenca, had given false testimony and that the prosecutor thus suborned perjury when he failed to correct Cuenca's false testimony. Specifically, Doyle argues that Cuenca testified falsely that she had not received a plea deal in exchange for her testimony at Doyle's trial, ² when in fact the State had allowed Cuenca to plead guilty to reduced charges in exchange for her testimony against Doyle and another defendant. ³

¶ 3 We agree that the prosecutor knew or should have known that Cuenca testified incorrectly and that the prosecutor committed misconduct by failing to immediately correct Cuenca's testimony.⁴See State v. Gordon, 886 P.2d 112, 116 (Utah Ct.App.1994) (noting that due process of law requires that "when a prosecutor is aware that testimony is false, he or she has a duty to correct the false impression; failure to do so requires reversal 'if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury' " (citations omitted)). Nevertheless, we affirm Doyle's conviction because there is not a reasonable likelihood that the false testimony affected the jury's ultimate verdict. See id.; see also United States v. Bagley, 473 U.S. 667, 679-80, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (explaining that a prosecutor's knowing use of false testimony "is considered material unless failure to disclose it would be harmless beyond a reasonable doubt"); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (stating that a prosecutor may not knowingly use false evidence, regardless of whether the prosecutor solicited the false testimony or merely allowed it to stand uncorrected). The effective advocacy by Doyle's attorney in this case rendered the false testimony harmless. Cuenca's motive for testifying had clearly been revealed because of Doyle's diligent efforts to locate the plea agreements, thorough cross examination of Cuenca, and the introduction of the testimony of Cuenca's lawyer.⁵ Moreover, the prosecutor ultimately acknowledged the existence of the plea agreements in his closing argument. Doyle and the State thus provided the jury with the facts it needed to weigh Cuenca's credibility. Consequently, Doyle was not prejudiced by Cuenca's false testimony and the prosecutor's failure to timely correct it.

¶ 4 Next, Doyle contends that the State violated her due process rights when it failed to produce any plea agreements the State had offered to codefendants, despite Doyle's requests. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment ...."); see also United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (explaining that suppression of evidence favorable to an accused, even without a request, violates due process). In Utah,

the State has two independent obligations to provide evidence to the defense. First, the State has a duty under the Due Process Clause of the United States Constitution to provide, without request by the defendant, all exculpatory evidence. Second, when required by court order, the State must disclose evidence pursuant to Rule 16 of the Utah Rules of Criminal Procedure.

State v. Rugebregt, 965 P.2d 518, 522 (Utah Ct.App.1998) (internal quotation marks omitted).

¶ 5 A due process or " Brady violation occurs only where the state suppresses information that (1) remains unknown to the defense both before and throughout trial and (2) is material and exculpatory, meaning its disclosure would have created a 'reasonable probability' that 'the result of the proceeding would have been different.' " State v. Bisner, 2001 UT 99, ¶ 33, 37 P.3d 1073 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375). In Bisner, the Utah Supreme Court held there was no Brady violation where the defendant learned before the trial began of the State's agreement to reduce a witness's sentence in exchange for his testimony against the defendant. See id. ¶ 37. The supreme court noted, "Not only does the defense admit that it knew about this alleged agreement days before trial, but [the defendant]'s attorney actually used the information for the precise purpose the Constitution requires its disclosure: impeachment." Id. ¶ 6 While we acknowledge that the State certainly had a duty to disclose the plea agreements,⁶ Doyle took the initiative to locate and use Cuenca's actual plea agreements to impeach her trial testimony. Although pretrial disclosure of Cuenca's plea agreements may have permitted further development of this line of questioning, the record shows that Doyle impeached Cuenca's credibility as extensively and thoroughly as she could have during cross examination and through presentation of Jarvis's testimony. Accordingly, we conclude that there was no Brady violation and the trial court did not abuse its discretion when it denied both of Doyle's motions. See id. ¶ 31.

¶ 7 Doyle also argues that the State failed to produce evidence under rule 16 of the Utah Rules of Criminal Procedure—its second "independent obligation [ ] to provide evidence to the defense," Rugebregt, 965 P.2d at 522—because the prosecutor failed to provide evidence in response to her request for production of "[a] copy of any ... written or verbal offers to any co-defendant in this case in exchange for testimony against the Defendant." The State must produce discovery "as soon as practicable following the filing of charges and before the defendant is required to plead" and "has a continuing duty to make disclosure." Utah R.Crim. P. 16(b). We agree with Doyle that the State was required to produce Cuenca's plea agreements.

¶ 8 Even though the State improperly withheld the plea agreements before trial,⁷ see Medel v. State, 2008 UT 32, ¶ 24, 184 P.3d 1226 (setting forth the State's two requirements when responding to discovery as "[f]irst, ... the prosecution must either produce all of the material requested or specifically identify material that will not be produced" and "[s]econd, the prosecution has a continuing duty throughout the proceedings to disclose any additional material evidence that falls within the scope of the request"), Doyle waited until the close of the State's case to raise the argument that the State had violated rule 16, see Utah R.Crim. P. 16(g) (providing that when a party has "failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances"). Therefore, the trial court correctly ruled that Doyle waived her relief "by not making timely efforts to mitigate or eliminate the prejudice caused by the prosecutor's conduct." State v. Griffiths, 752 P.2d 879, 883 (Utah 1988); see also Utah R.Crim. P. 30(a) ("Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded."); Rugebregt, 965 P.2d at 522 ("When the prosecution introduces unexpected testimony, a defendant 'essentially waive[s] his right to later claim error' if the defendant fails to request a continuance or seek other appropriate relief under Rule 16(g)." (alteration in original) (citation omitted)).

¶ 9 Moreover, even if we were convinced that Doyle had not waived her right to relief from the State's discovery violation, the violation did not prejudice Doyle, as we statedabove. See State v. Basta, 966 P.2d 260, 265 (Utah Ct.App.1998) ("[F]or us to reverse defendant's conviction based on the prosecutor's discovery violation, we must conclude that violation 'resulted in prejudice sufficient to warrant reversal under Rule 30' of the Utah Rules of Criminal Procedure." (quoting State v. Knight, 734 P.2d 913, 919 (Utah 1987))).

¶ 10 In sum, although the trial court failed to recognize the prosecutor's misconduct, there was no abuse of discretion in its denial of Doyle's motions to dismiss and to arrest judgment due to Doyle's knowledge and use of the plea agreements before the conclusion of the State's case, her opportunity to impeach Cuenca's testimony, and her failure to timely raise the discovery violation. As explained above, Doyle has failed to demonstrate that she was prejudiced by any prosecutorial misconduct or discovery violations.

¶ 11 We do, however, recognize that the prosecutor committed several discovery, see Utah R.Crim. P. 16(a), and ethical violations, see, e.g., Utah R. Prof'l Conduct 3.3(a)(3), 3.4(a)-(c), 3.8(d), and we are compelled to again address the prosecutor's serious misconduct. First, the prosecutor failed to object when providing the first discovery responses, which had the effect of misleading Doyle. See Utah R. Prof'l Conduct 3.4(a), (c). Second, the prosecutor's objection, grounded on the alleged nondiscoverability of the plea agreements, was...