Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Zuroweste

Supreme Court of Missouri, En Banc

April 2, 2019

STATE OF MISSOURI, Respondent,
v.
DANIELLE ANN ZUROWESTE, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF WARREN COUNTY The Honorable Wesley Dalton, Circuit Judge

          W. BRENT POWELL, JUDGE

         Danielle Ann Zuroweste appeals a judgment of conviction for possession of a controlled substance. A jury found Zuroweste guilty of possession of methamphetamine, and the circuit court sentenced her to prison pursuant to the 120-day institutional treatment program. On appeal, Zuroweste argues the circuit court erred by admitting into evidence a recorded statement Zuroweste made because the State did not disclose the recording until four days before trial. Although the State clearly violated the rules of discovery by failing to timely disclose the recorded statement, the judgment is affirmed because the discovery violation did not warrant the drastic sanction of excluding the evidence as Zuroweste requested when a continuance would have remedied any alleged prejudice to Zuroweste.

         Factual and Procedural Background

         On September 21, 2015, a police officer responded to a reported domestic matter. After speaking with several individuals at the scene, the officer began searching for Zuroweste. The officer observed a vehicle matching the description of Zuroweste's vehicle and conducted a traffic stop. During the stop, the officer noticed a plastic baggy, which appeared to contain a white residue consistent with the appearance of illegal drugs.[1] The officer recovered the plastic baggy and also seized two glass pipes containing burnt marijuana. The officer arrested Zuroweste and transported her to the Warren County jail. Zuroweste was subsequently charged with possession of a controlled substance and drug paraphernalia.

         While she was in jail, [2] Zuroweste made a series of telephone calls. During one of these calls, placed September 26, 2015, Zuroweste stated, "I've learned my lesson," "I know it's wrong and I shouldn't be doing it," and "I am never going to do it again."

         Following a waiver of preliminary hearing, Zuroweste was charged by information with one count of felony possession of a controlled substance and one count of possession of drug paraphernalia, a misdemeanor. On June 10, 2016, following the filing of the information, Zuroweste filed a written request for discovery requesting, in relevant part, "Any written or recorded, statements and the substance of any oral statements made by the defendant." Zuroweste's case was set for trial November 14, 2016. Four days before the trial was set to begin, the State disclosed the recorded telephone call Zuroweste made September 26, 2015.[3] After the State informed Zuroweste of its intent to use the recorded telephone call as evidence at trial, Zuroweste objected to the late disclosure. The State claimed it did not know about the call until that day and it delivered a copy of the recording to Zuroweste as soon as it was discovered. The State justified the late disclosure, arguing it has to "juggle the trial docket," it doesn't always know "what case is going [to trial] sometimes until days before," and "the State [has] to prep multiple cases for trial, but [doesn't] know which one's going until days before."

         Zuroweste filed a pretrial motion to exclude the recorded telephone call from evidence as a sanction for the alleged discovery violation. Despite arguing the late disclosure prejudiced her because she did not have time to investigate the call and offer evidence to contradict the State's evidence, Zuroweste did not seek a continuance as a remedy to the discovery violation in her pretrial motion. The circuit court overruled her motion to exclude the evidence. Immediately prior to trial, Zuroweste pleaded guilty to the misdemeanor possession of drug paraphernalia charge.[4] On the morning of trial, the circuit court asked Zuroweste if she was sure she wanted to reject the State's plea offer for the felony possession charge, which contemplated dismissing the felony charge pending successful completion of a drug court program. Zuroweste confirmed she wished to reject the State's offer, explaining she could not commit to the drug court program due to the distance between the court and her residence. Zuroweste's case proceeded to trial.

         During the trial, the State introduced the September 26 telephone call, over Zuroweste's objection, as evidence in support of its theory that Zuroweste knew the baggy contained methamphetamine, equating the recorded statements with an admission of guilt. During closing arguments, the State encouraged the jury to play the recorded telephone call during its deliberations, and the jury did request the recording during deliberations. The jury returned a verdict finding Zuroweste guilty of felony possession of methamphetamine. Zuroweste moved for a new trial, again citing the State's alleged discovery violation. The circuit court overruled her motion and entered judgment on the jury's verdict. The circuit court sentenced Zuroweste to seven years in prison pursuant to the 120-day institutional treatment program authorized by § 559.115.[5] Zuroweste appealed, and this Court granted transfer after an opinion by the court of appeals pursuant to Rule 84.04.

         Standard of Review

         "In reviewing criminal discovery claims, this Court will overturn the trial court only if it appears that the trial court abused its discretion." State v. Taylor, 944 S.W.2d 925, 932 (Mo. banc 1997). Even when there is a discovery violation, "[a] trial court's denial of a requested sanction is an abuse of discretion only where the admission of the evidence results in fundamental unfairness to the defendant." State v. Taylor, 298 S.W.3d 482, 502 (Mo. banc 2009); see also State v. Edwards, 116 S.W.3d 511, 534 (Mo. banc 2003); State v. Royal, 610 S.W.2d 946, 951 (Mo. banc 1981).

         Analysis

         Through its rules, this Court seeks to facilitate and promote discovery in criminal cases. The rules of criminal discovery exist "to eliminate surprise by allowing both sides to know the witnesses and evidence to be introduced at trial." State v. Walkup, 220 S.W.3d 748, 753 (Mo. banc 2007) (internal brackets and quotation omitted). "The Rules of criminal discovery are not mere etiquette nor is compliance discretionary." State v. Whitfield, 837 S.W.2d 503, 507 (Mo. banc 1992) (internal quotation omitted). The discovery rules exist to "aid the truth-finding aspect of the legal system." Id. at 508. The rules also "foster informed pleas, expedited trials, a minimum of surprise, and the opportunity for effective cross-examination." State v. Wells¸ 639 S.W.2d 563, 566 (Mo. banc 1982).

         On appeal, Zuroweste claims the circuit court erred in admitting the recorded telephone call she placed September 26th because the call was untimely disclosed in violation of the rules of discovery, and the late disclosure prevented her from adequately preparing for trial. Although this Court agrees the State violated the rules of discovery, the circuit court did not abuse its discretion admitting the recorded telephone call at trial because any unfairness resulting from the late disclosure could have been remedied by a continuance, which Zuroweste never requested. For this reason, the admission of the evidence did not result in fundamental unfairness to Zuroweste warranting reversal of her conviction.

         A. The untimely disclosure of the recorded telephone call was a discovery violation.

         The State labored both in its brief and at oral argument to convince this Court its late response to Zuroweste's discovery request did not constitute a discovery violation. The State's arguments ring hollow, however, as there can be no question there was a discovery violation in this case.

         The State first argues it did not violate the rules of discovery because the call was not in its possession. Both the plain text of Rule 25.03[6] and Missouri cases expose the weakness in the State's position. Rule 25.03 sets out the mandatory disclosures the State is required to make when it receives a request for discovery in a criminal case. It states, in pertinent part, "[T]he state shall, upon written request of defendant's counsel, disclose to defendant's counsel such part or all of the following material and information within its possession or control … [a]ny written or recorded statements and the substance of any oral statements made by the defendant." Rule 25.03(A)(2) (emphasis added). For the purpose of this rule and subdivision, "the state" is limited to "the prosecutor as a representative of the State of Missouri, and not to any other state official or entity." State v. Johnson, 513 S.W.3d 360, 366 n.3 (Mo. App. 2016). Therefore, because the recorded telephone calls Zuroweste made in the Warren County jail were not in the prosecutor's possession, but instead were in the possession of the Warren County sheriff's department, [7]the State is correct that Rule 25.03(A) did not obligate disclosure by the prosecutor in this case. But the scope of information and material subject to mandatory disclosure under Rule 25.03 encompasses more than information in the prosecutor's possession.

         Although Rule 25.03(A) did not require disclosure, Rule 25.03(C) obligated the State to exercise diligence and good faith to retrieve and disclose the recorded telephone calls Zuroweste made while she was detained in the Warren County jail. The State contends the rules of criminal discovery "[do] not impose an affirmative duty on the State" to search for and retrieve information from the Warren County jail, but this position is inconsistent with the language of Rule 25.03(C) and exhibits a disingenuous reading of this Court's relevant cases. Rule 25.03(C) clearly states:

If the defense in its request designates material or information which would be discoverable under this Rule if in the possession or control of the state but which is, in fact, in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such material to be made available to the defense counsel.

(Emphasis added). Zuroweste's written discovery request sought "[a]ny written or recorded statements … made by the defendant." Pursuant to Rule 25.03(A)(2), this specific request would have obligated the State to disclose the recorded telephone calls Zuroweste made from the Warren County jail if the recordings were in the prosecutor's possession. Therefore, because the recordings would have been "discoverable under this Rule" if they were in the prosecutor's possession, Rule 25.03(C) required the State to "use diligence and make good faith efforts" to cause the recordings to be made available to Zuroweste if the recordings were "in the possession or control of other governmental personnel." Rule 25.03(C). The recorded telephone calls made by Zuroweste were, in fact, in the possession and control of the Warren County sheriff's department, another government entity. Rule 25.03(C) required the State, therefore, to use diligence and make a good faith effort to make the recordings available to Zuroweste. Furthermore, this Court has unequivocally held Rule 25.03 "imposes an affirmative requirement of diligence and good faith on the state to locate records not only in its own possession or control but also in the control of other governmental personnel." Merriweather v. State, 294 S.W.3d 52, 55 (Mo. banc 2009) (emphasis added). It is beyond debate that Rule 25.03(C) and this Court's decision in Merriweather required the State to use diligence and make a good faith effort to seek out and retrieve the recorded telephone calls from the Warren County jail and disclose the calls to Zuroweste.

         The facts in Merriweather further expose the infirmity of the State's position. In Merriweather, this Court held Rule 25.03(C) obligated the State to disclose prior criminal convictions of a witness called by the State even though the convictions in question "were Illinois records, but Missouri officials had access to them ." Id. at 56. Put another way, Rule 25.03(C) placed an affirmative duty on the State to retrieve and disclose evidence from another state because the State had the ability to access the evidence.

         Not only is the Warren County sheriff's department a Missouri government entity, but the Warren County prosecuting attorney and the Warren County sheriff's department are located in the same building. If this Court found diligence and good faith required the State to discover and disclose criminal records originating from another state government, then the diligence and good faith requirement of Rule 25.03(C) would also require the State to discover and disclose records maintained by another Missouri government entity located in the same building as the prosecutor. Furthermore, the State cannot justifiably claim discovering and disclosing recorded telephone calls Zuroweste made at the Warren County jail goes beyond the diligence and good faith requirement of Rule 25.03(C) because the use of recorded jailhouse telephone calls has become commonplace in criminal prosecutions and the State frequently uses such recordings as evidence in criminal trials. Therefore, the State, utilizing diligence and a good faith effort, should have discovered and disclosed the recorded telephone calls Zuroweste made from the Warren County sheriff's department as required by Rule 25.03(C).

         The State attempts to distinguish Merriweather from this case because the discovery at issue in Merriweather was exclusively available to the State through online criminal history databases, whereas Zuroweste could have requested and received copies of her recorded jail calls. But this distinction is immaterial because Rule 25.03 requires disclosure of any recorded statements the defendant made if those statements are in the possession or control of other governmental personnel. Whether Zuroweste had access to the recordings is irrelevant to the State's duty to discover and disclose the recordings. Moreover, the State's attempt to pass responsibility for locating the call onto Zuroweste ignores the fundamental nature of a criminal prosecution. The State wields enormous power during a criminal prosecution, and with great power comes great responsibility. If the State seeks to deprive a defendant of liberty, the State must spare no effort to fulfill its obligations under this Court's discovery rules.

         In a final attempt to convince this Court it did not commit a discovery violation, the State argues it disclosed the recording as soon as the State came into possession of the call, but a review of the disclosure timeline and the relevant rule of discovery establishes the State's disclosure was untimely. Rule 25.02 states, in pertinent part, "Requests [for discovery] shall be answered within ten days after service of the request."[8] "This duty to disclose is not discretionary and is continuing." State v. Bucklew, 973 S.W.2d 83, 92 (Mo. banc 1998). The relevant telephone call was recorded September 26, 2015. Zuroweste filed her written request for discovery June 10, 2016. The State was obligated under Rule 25.03(C) to use diligence and good faith efforts to locate the recordings from the Warren County sheriff's department and disclose the recordings to Zuroweste on or before June 20, 2016, as required by Rule 25.02.[9]

         Although the State provided Zuroweste with a copy of the telephone call immediately after coming into possession of the recording, the State waited until the final days leading to trial before giving any thought to locating and disclosing the call. The State does not claim locating the recorded telephone calls was difficult, [10] and, as stated above, the use of jailhouse telephone calls in criminal trials has become commonplace. The State, therefore, has no excuse for not discovering and disclosing all the recorded telephone calls within 10 days as required by Rule 25.02. Sitting idly on Zuroweste's discovery request for six months and then waiting until mere days before trial to locate and disclose discoverable material containing recorded statements made by Zuroweste is the antithesis of the diligence and good faith requirement of Rule 25.03(C) and the 10-day deadline mandated by Rule 25.02.

         The prosecutor inexcusably tried to pass the blame for the late disclosure onto the defense bar by accusing defendants of engaging in a "shell game" through which defendants prevent the State from knowing which defendants will take their case to trial and which defendants will accept plea agreement offers. This Court, however, has no sympathy for the State's position because the State's job is to be prepared to try every case it brings and to assume each case will be tried to verdict.

         Accordingly, the State's failure to timely retrieve and disclose the September 26 telephone call from the Warren County jail undoubtedly constituted a discovery violation. The only remaining question is what sanction or remedy, if any, the State's discovery violation warranted.

         B. The discovery violation did not warrant exclusion of the recorded telephone call.

         Rule 25.18 sets forth the sanctions and remedies the circuit court may consider and impose for discovery violations occurring in criminal cases. The rule states in pertinent part:

If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule …, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.

         Rule 25.18 (emphasis added). This rule gives circuit courts significant discretion, and a circuit court's decision will be disturbed "only upon a very strong showing that the court abused its discretion and prejudice resulted." Edwards, 116 S.W.3d at 535. Nonetheless, the circuit court's discretion is not absolute. The circuit court must ensure the sanction imposed or remedy applied, if any, is proportional to the violation and the resulting prejudice. "When the trial court declines to impose a sanction, [this Court] must determine whether the State's violation resulted in fundamental unfairness or bore a real potential for substantively altering the outcome of the trial." State v. Johnston, 957 S.W.2d 734, 750 (Mo. banc 1997). "Fundamental unfairness occurs when the state's failure to disclose results in defendant's 'genuine surprise' and the surprise prevents meaningful efforts to consider and prepare a strategy for addressing the evidence." State v. Tisius, 92 S.W.3d 751, 762 (Mo. banc 2002).

         In her motion for sanctions, Zuroweste sought exclusion of the jail call recording as a sanction for the State's discovery violation. Notably, Zuroweste did not request or seek a continuance as a remedial measure, even in the alternative. The exclusion of evidence is among the sanctions and remedies authorized by Rule 25.18. However, the exclusion of evidence is "a drastic remedy that should be used with the utmost of caution." State v. Mansfield, 637 S.W.2d 699, 703 (Mo. banc 1982), overruled on other grounds by State v. Clark, 652 S.W.2d 123, 127 n.4 (Mo. Banc 1983); see also State v. Destefano, 211 S.W.3d 173, 181 (Mo. App. 2007). As the United States Supreme Court has said in the context of a Fourth Amendment violation, "for exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs" of ignoring reliable evidence and suppressing the truth. Davis v. United States, 564 U.S. 229, 237 (2011).

         The purpose of any trial, criminal or civil, is to seek justice. A fair trial and just result may be compromised if reliable and relevant evidence is suppressed from the fact finder. Accordingly, such an extreme sanction is warranted only if supported by adequate cause and required to prevent "fundamental unfairness." Johnston, 957 S.W.2d at 750; see also State v. Smothers, 605 S.W.2d 128, 132 (Mo. banc 1980) ("A conviction resulting from a fair trial should not be reversed for the purpose of disciplining and deterring prosecutors, particularly where the mechanism for discipline and deterrence is provided elsewhere."). For this reason, before the drastic sanction of exclusion is imposed, circuit courts must consider employing less severe remedies to address the prejudice resulting from the discovery violation and achieve fundamental fairness for all parties.

         In support of her request for the exclusion of the recorded telephone call as a sanction for the State's discovery violation, Zuroweste and the dissent argue the violation involves her own inculpatory statements. Zuroweste and the dissent contend the failure to disclose a defendant's own statements is inherently prejudicial. To be sure, the State's failure to produce a defendant's own statement is a particularly concerning form of discovery violation. See State v. Henderson, 410 S.W.3d 760, 764 (Mo. App. 2013) (holding "[t]he State's failure to produce a statement of the accused is in a different category from failure to disclose a witness or a photograph"). "Because they carry such great weight with the jury, inculpatory statements demand disclosure, and a violation of the rule of disclosure requires examination with grave suspicion." Id. at 765. Indeed, the State relied heavily on the jail call, equating the recorded statements with an admission of guilt. The State also repeatedly referenced the recorded telephone call during closing arguments, and the jury requested the recording during deliberations. The significant weight of Zuroweste's inculpatory statements in the recorded telephone call, however, does not create a presumption of prejudice mandating exclusion of the evidence or reversal if the evidence is not excluded. Rather, Zuroweste must demonstrate the discovery violation resulted in "fundamental unfairness" warranting exclusion of the evidence rather than another sanction or remedy. Johnston, 957 S.W.2d at 750.

         Zuroweste argues the State's late disclosure resulted in fundamental unfairness because she did not have sufficient time to adequately prepare a defense in light of the recording. If a criminal defendant claims a late discovery disclosure prevented her from adequately investigating and preparing for trial, the appropriate remedy is a continuance, not exclusion of the evidence, unless the complaining party establishes prejudice from the delay. See Royal, 610 S.W.2d at 953 (finding it "strange to hear defense counsel make these claims [of insufficient time to prepare] while not seeking a continuance"); State v. Ivy, 531 S.W.3d 108, 119(Mo. App. 2017) (observing a defendant could have "potentially removed the prejudice" from a late disclosure by asking for a continuance). Moreover, a defendant's "[f]ailure to seek a continuance leads to the inference that the late endorsement was not damaging to the complaining party." State v. Hutchison, 957 S.W.2d 757, 764 (Mo. banc 1997). "A defendant's failure to ask for a continuance can be properly considered by the appellate court in determining whether the trial court abused its discretion," and the failure to request a continuance may also justify finding the defendant "could have requested the less-drastic remedy of a continuance as an alternative to the tape's exclusion." State v. Bynum, 299 S.W.3d 53, 62 (Mo. App. 2009) (internal quotation omitted). Zuroweste's failure to request a continuance must be considered when assessing the credibility of Zuroweste's claim that she did not have adequate time to prepare and whether fundamental unfairness resulted from admission of the evidence. If Zuroweste truly needed additional time to investigate the call, a continuance would have remedied her concerns. By not requesting a continuance, the credibility of her claim is shaken, and the circuit court did not abuse its discretion denying her request to exclude the evidence. Importantly, Zuroweste was out of custody and had requested several continuances during the course of this prosecution, and there is no evidence or record before the circuit court suggesting another continuance or a delay in the trial would have somehow prejudiced Zuroweste. Because a continuance would have remedied any unfairness caused by the discovery violation in this case and Zuroweste has not demonstrated prejudice by a delay in the proceedings, Zuroweste has not shown the drastic remedy of exclusion was justified over a simple continuance, and the circuit court did not abuse its discretion overruling her motion to exclude the recorded telephone call.[11]

         In addition, Zuroweste fails to identify exactly what she would have done differently had the State timely disclosed the recorded call. Vague and indefinite responses about how a defense strategy would have changed in light of untimely disclosed evidence is insufficient to establish prejudice. Royal, 610 S.W.2d at 952-53. Rather, Zuroweste must establish the late disclosure "bore a real potential for substantively altering the outcome of the trial." Johnston, 957 S.W.2d at 750. Zuroweste claims, with more time, she could have investigated and interviewed a person she referenced on the recorded telephone call, but she does not explain how investigating and interviewing this person potentially could have created a different result at trial. Although the State most certainly should have discovered and disclosed the recording in a timely fashion, Zuroweste has neither claimed nor demonstrated she was genuinely surprised by the recording to an extent that "prevent[ed] meaningful efforts to consider and prepare a strategy for addressing the evidence." State v. Thompson, 985 S.W.2d 779, 785 (Mo. banc 1999). Zuroweste does not allege she was forced to alter her trial strategy at the last minute, nor that the late disclosure "crippled" her defense.[12] See Henderson, 410 S.W.3d at 766. "Bare assertions of prejudice are not sufficient to establish fundamental unfairness and [do] not show how the trial was substantially altered." Tisius¸ 92 S.W.3d at 762. Accordingly, by merely claiming the late disclosure deprived her of an opportunity to adequately prepare for trial, Zuroweste has not demonstrated a reasonable likelihood the State's discovery violation "affected the result of the trial." [13] Edwards¸116 S.W.3d at 534.

         Zuroweste relies heavily on Henderson, 410 S.W.3d at 762 and another court of appeals case, State v. Willis, 2 S.W.3d 801 (Mo. App. 1999), for her claim that the State's late disclosure resulted in fundamental unfairness, but those cases can be distinguished from the present action. In Henderson, the defendant was charged with unlawfully possessing a firearm. 410 S.W.3d at 762. The defendant's theory of defense was he did not live at the address where the firearm was recovered. Id. at 763. However, the defendant listed the address where the firearm was found as his address on the booking form he completed after his arrest. Id. Although the defendant submitted a written discovery request, the State waited until after trial had begun to disclose the booking form. Id. The court of appeals found this resulted in fundamental unfairness, noting:

the booking form was the State's most damning documentary evidence that [the defendant] actually lived at the residence where police found the rifle. By the time the State disclosed the booking form, the defendant had already committed in his opening statement to the jury to the theory of defense that he did not live at the residence where police found the rifle … The timing crippled the defendant's theory of defense and left defense counsel with no time to investigate and employ another strategy.

Id. at 766. Untimely disclosure of the booking form, therefore, resulted in fundamental unfairness not because the defendant had merely formulated a strategy prior to trial that did not contemplate the booking form, but because he had already presented the theory to the jury when the State made the late disclosure, so a continuance could not have remedied the discovery violation.

         Similarly, in Willis, the State waited until the day the trial began before disclosing inculpatory letters the defendant wrote directly contradicting his chosen theory of defense. 2 S.W.3d at 803. The court of appeals held this late disclosure resulted in fundamental unfairness warranting exclusion because it did not give the defendant enough time to adjust his trial strategy. Id. at 807. In contrast, the State, in this case, disclosed the recorded call four days before trial started, not on the day the trial commenced. Four days was enough time for Zuroweste, at the very least, to determine if she needed additional time to investigate and prepare for trial in light of the late disclosure and request a continuance to seek more time, if necessary, to properly respond to the late disclosure of the telephone call.

         Zuroweste also claims the late disclosure resulted in fundamental unfairness because it left her with insufficient time to decide whether to plead guilty or to accept the State's plea offer. But again, Zuroweste failed to request a continuance. If she needed additional time to consider the State's offer in light of the late disclosure, she had four days before the start of the trial to simply request a continuance. Moreover, Zuroweste fails to explain how she was genuinely surprised by the disclosure or how having more time between disclosure of the recording and trial would have influenced her decision on whether to plead guilty. See Tisius, 92 S.W.3d at 762. Although Zuroweste claims timely disclosure would have given her more time to consider the effect the recording would have on her trial, "extremely general responses" are insufficient to show prejudice. Royal, 610 S.W.2d at 953.

         Furthermore, Zuroweste still had sufficient time after receiving the recording from the State to contemplate the State's plea offer, and, in any event, there is no evidence showing the recorded telephone call influenced her decision to accept or reject the plea offer. Zuroweste was presented with a chance to accept the State's plea offer as late as the morning of trial, but she rejected the offer because she was hesitant to commit to a drug court program due to the distance between the court and her residence. This demonstrates Zuroweste was not contemplating the weight of the State's evidence or the effect of the recording on the outcome of her trial when she rejected the State's plea offer. Instead, she rejected the offer on logistical grounds unrelated to the State's evidence or the recorded telephone call. The late disclosure, therefore, had no bearing on Zuroweste's decision to accept or reject the State's plea offer. Accordingly, the State's discovery violation was not fundamentally unfair because Zuroweste has not demonstrated how timely disclosure of the recorded call would have reduced her reluctance to accept the State's plea offer and enter a drug court program.

         Finally, Zuroweste characterizes the State's late disclosure of the recorded call as a willful discovery violation and therefore contends exclusion is warranted pursuant to Rule 25.18. Rule 25.18 provides in pertinent part, "Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court." (Emphasis added). While clearly the State's choice to delay seeking and obtaining the jail calls until it determined Zuroweste's case was proceeding to trial was intentional, there was no evidence showing the State's decision was made in bad faith or to gain a strategic advantage. Missouri courts have emphasized the distinction between discovery violations made willfully in bad faith and those occurring due to poor discovery practices and trial preparation. In Johnson, the court of appeals reversed a conviction due to a discovery violation but only after finding the State "intentionally withheld the recordings from the defense to gain a strategic advantage." 513 S.W.3d at 365 (emphasis added).[14] Clearly, if the State willfully violated the discovery rules to gain a strategic advantage or because of another bad faith motive, exclusion of relevant evidence would be the minimum sanction warranted. See State ex rel. Jackson Cnty. Prosecuting Attorney v. Prokes, 363 S.W.3d 71, 85 (Mo. App. 2011) (denying the State's writ petition after the circuit court imposed the "ultimate sanction" by excluding all the State's evidence after finding the extensive record was "replete with instances of the State's bad faith"). In contrast, there was no evidence the State, in this case, attempted to sabotage Zuroweste's defense, gain an advantage at trial through the late disclosure, or otherwise acted in bad faith. Rather, the State unjustifiably chose to delay determining whether Zuroweste made calls from the jail and disclose the recorded call until it determined whether Zuroweste's case would proceed to trial. While this was an intentional choice and could properly be considered a willful discovery violation, the record does not establish the State committed the violation in bad faith warranting the disfavored and severe sanction of excluding the evidence.

         Furthermore, despite the dissent's attempt to characterize the sanctions authorized by Rule 25.18 as mandatory, a willful violation of the discovery rules does not mandate exclusion. In other words, Rule 25.18 does not require the imposition of a sanction in this case; it merely authorizes the circuit court to do so in its discretion. "A trial court's denial of a requested sanction is an abuse of discretion only where the admission of the evidence results in fundamental unfairness to the defendant." Edwards, 116 S.W.3d at 534. Zuroweste has not shown the State's late disclosure resulted in fundamental unfairness requiring exclusion of the recorded telephone call. Accordingly, the circuit court did not abuse its discretion in overruling Zuroweste's motion for sanctions.

         Conclusion

         Because the State's discovery violation did not warrant exclusion of the evidence, the circuit ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.