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State v. Musayev3/4/2002
must resolve doubts regarding disclosure in favor of sharing the evidence with the defense. Id.
The prosecutor's duty of disclosure is limited to information within the knowledge, possession or control of the prosecutor and staff. CrR 4.7(a)(4). The duty to preserve evidence applies not only to the prosecutor, but also to agents acting under the prosecutor's authority, including the police. State v. Vaster, 99 Wn.2d 44, 53, 659 P.2d 528 (1983); City of Seattle v. Fettig, 10 Wn. App. 773, 775, 519 P.2d 1002 (1974). The prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf, including the police. Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Musayev asked the trial court to dismiss his case pursuant to CrR 4.7(7) or CrR 8.3(b). Under CrR 4.7(7), the court may 'grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances' as a sanction for a discovery violation. CrR 8.3(b) allows the court to 'dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's rights to a fair trial.' On appeal, Musayev does not argue that the trial court erred in denying his motion to dismiss. Rather, he argues that the remedy of reversal of his conviction and a new trial is appropriate because the Tukwila Police Department's failure to disclose the videotape violated his rights under the discovery rules and deprived him of a fair trial. Thus, CrR 8.3(b), which addresses dismissal, is not relevant to this case. Nor is the propriety of dismissal as a sanction under CrR 4.7(7). The question is whether the trial court should have granted the lesser sanction of reversal and a new trial. A trial court's decision concerning the appropriate remedy for a discovery violation under CrR 4.7(h) is discretionary. State v. Smith, 67 Wn. App. 847, 851, 841 P.2d 65 (1992).
Musayev argues that the police should have disclosed the videotape because it contained material evidence that he needed for impeachment purposes. He claims that the videotape shows Davidyants looking calm and alert without noticeable bleeding or suffering. He argues that his attorneys were unable to prepare cross-examination based on the impeachment material contained in the videotape because several key witnesses, including Davidyants, had already completed their testimony by the time the videotape became part of the record. He also argues that he was prejudiced because the State incorporated the video into its case and used it to distract the jury by calling it a red herring.
Dismissal for a discovery violation is an extraordinary remedy, available only when the alleged misconduct has materially affected the accused's right to a fair trial and the prejudice cannot be remedied by granting a new trial. State v. Jacobson, 36 Wn. App. 446, 450, 674 P.2d 1255 (1983).
Musayev does not ask for dismissal on appeal, only a new trial. However, absent a showing of actual prejudice, the appellate court will not interfere with the trial court's exercise of discretion in denying sanctions pursuant to CrR 4.7(h). State v. Bradfield, 29 Wn. App. 679, 682, 630 P.2d 494 (1981). Musayev has not demonstrated actual prejudice.
He claims that he could have used the videotape to impeach witness accounts of Davidyants' suffering. However, the degree of pain Davidyants may or may not have experienced as a result of his injuries has no bearing on whether Musayev intended to kill him, which was the pivotal issue in the case. Musayev also suggests that he suffered prejudice because defense counsel could ha
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