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State v. Musayev3/4/2002
not begin until after police arrived on the scene. Gurr thought it might be useful for debriefing on police response to the incident, so he gave the tape to Sergeant Michael Villa. Villa agreed that the tape had no evidentiary value, although he never watched it. Villa retained the tape because he considered it of possible assistance as a police-training tool. He never used it, however, because he did not have access to the type of equipment required to view the tape. The tape was returned to Avanesyan when he asked for it three weeks later. Neither Gurr nor Villa made any mention of the tape in their reports or paperwork. Detective Thomas Roth, who was unaware of the videotape, did not interview Avanesyan because the police incident report indicated that Avanesyan would require the services of an interpreter. Such interviews are generally scheduled only at the prosecutor's request to avoid unnecessary expense. As a result, neither the prosecutor nor defense counsel was aware of the videotape as the trial began.
On the second day of trial, defense counsel interviewed Avanesyan and found out about the videotape. The following day, defense counsel informed the prosecutor about the tape, and Avanesyan came to court with the tape at defense counsel's request. The prosecutor decided to call Officer Gurr, Sergeant Villa, Detective Roth, and Avanesyan as witnesses, and to show the videotape to the jury. The prosecutor explained,
{T}he state doesn't believe {the videotape} has evidentiary value. However, once the spect{e}r has been raised, once the red herring has been thrown to the jury, I have to make a tactical decision as a trial lawyer as to whether or not I want the jury to feel that anything was withheld versus put it in front of the jury. I chose the latter as opposed to the former. 8 Report of Proceedings at 39.
Detective Roth also testified that, based on his experience investigating thousands of cases, the tape had no evidentiary value.
The following day, Musayev filed a motion to dismiss pursuant to CrR 4.7(h) and CrR 8.3(b), characterizing the prosecutor's failure to disclose the existence of the tape as an abuse of discovery rules and an act of governmental misconduct. The trial court denied the motion on the bases that the videotape was of post-arrest events and had little if any evidentiary value, and that whether the police mishandled the videotape was a question for the jury.
The jury convicted Musayev of attempted murder in the second degree while armed with a deadly weapon. The court imposed a standard range sentence with a consecutive mandatory deadly weapon enhancement. Musayev appeals.
II.
CrR 4.7 governs the obligations of the prosecutor and the defendant when engaging in discovery. The rules of criminal discovery are to be construed liberally in order to serve the purposes underlying CrR 4.7, which are 'to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process{.}' State v. Yates, 111 Wn.2d 793, 797, 765 P.2d 291 (1988). The prosecutor is required to disclose, before the omnibus hearing, any documents, papers, photographs, or other objects that may be used in the prosecutor's case. CrR 4.7(a)(1)(v). The prosecutor must also disclose any material or information within the prosecutor's knowledge that tends to negate the defendant's guilt as to the offense charged. CrR 4.7(a)(3). The prosecutor must also disclose relevant evidence if it is reasonably possible that the evidence will be used during any phase of the trial. State v. Dunivin, 65 Wn. App. 728, 733, 829 P.2d 799 (1992). The prosecutor
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