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State v. Roberts10/26/1999
tion, which includes the right to impeach a witness by exposing his or her motivation to testify. See Davis v. Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). However, a prosecutor's duty is limited to disclosure of "material and information within the knowledge, possession or control of members of the prosecuting attorney's staff." CrR 4.7(a)(4).
The State thus had a duty to disclose Gabriel's criminal history if that information was within its knowledge, possession, or control. The State contends the prosecutor had no actual knowledge of Gabriel's conviction and had no affirmative duty to search the county's files. The State relies on State v. Frederick, 32 Wn. App. 624, 648 P.2d 925 (1982), rev'd on other grounds, 100 Wn.2d 550, 674 P.2d 136 (1983), in which the State failed to provide a complete list of the defendant's previous convictions because the prosecutor was awaiting a report from the Washington State Identification Section and the FBI National Crime Index computer. Frederick, 32 Wn. App. at 626-27. The prosecutor later charged the defendant as an habitual criminal on the basis of three previously undisclosed prior convictions. Id. The court held there was no governmental misconduct because the prosecutor was not charged with constructive knowledge of all of the county's records and there was no indication his reliance on state and federal authorities was improper. Id. at 627.
Frederick is distinguishable on at least two grounds. First, the prior convictions in Frederick were those of the defendant, not a State witness, so the case did not implicate the defendant's Sixth Amendment right of confrontation. Second, the prosecutor in Frederick reasonably relied on state and federal reporting systems for the requested information. In this case, the prosecutor does not allege he made any such request.
In fact, Gabriel was prosecuted and convicted in Grant County, the same county in which Mr. Roberts was charged. Gabriel's prosecution obviously generated a file in the prosecutor's office, and members of the prosecuting attorney's staff had at least possession or control of that file, if not actual knowledge. See State v. Copeland, 89 Wn. App. 492, 497, 949 P.2d 458 (1998). The prosecutor thus was required under CrR 4.7 to disclose Gabriel's criminal history to the defense. His failure to do so was misconduct.
Mr. Roberts argues the misconduct requires reversal of the conviction even in the absence of prejudice. He relies on Davis, in which the Supreme Court noted that denial of effective cross examination "'would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.'" Davis, 415 U.S. at 318 (quoting Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968), and Brookhart v. Janis, 384 U.S. 1, 3, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966)). However, the Supreme Court has explained that this language in Davis "merely reflects the view that on the facts of that case the trial court's error had done 'serious damage' to the petitioner's defense." Delaware v. Van Arsdall, 475 U.S. 673, 683, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). The prosecutor's misconduct thus is subject to harmless-error analysis:
The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was
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