No. 26693-8-II.The Court of Appeals of Washington, Division Two.
Filed: August 2, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 98-2-00214-1, Hon. Stephen M. Warning, November 3, 2000, Judgment or order under review.
Counsel for Appellant(s), James K. Morgan, Attorney At Law, 1555 3rd Ave Ste a, Longview, WA 98632-3228.
Counsel for Respondent(s), Irene M. McDaniel, City Attorney, P.O. Box 128, Longview, WA 98632-7080.
CARROLL C. BRIDGEWATER, J.
Michael Mackey appeals his conviction for disorderly conduct and resisting arrest. He seeks reversal, arguing that the municipal court denied him due process by refusing to grant discovery of the internal police report detailing the investigation of his excessive force complaint. We hold that the error was harmless and affirm.
In April 1997, the City of Longview charged Mackey with disorderly conduct and resisting arrest. The charges stemmed from an incident in the restroom of a Longview restaurant and Mackey’s subsequent arrest. After his arrest, Mackey alleged that the arresting officers used excessive force. Consequently, the Longview Police Department ordered Sergeant Munger to investigate Mackey’s allegations. Sergeant Munger identified three witnesses to Mackey’s arrest (Robert McKee, Tiffanie Bicandi, and Lacy Peterson) and obtained their written statements. He also obtained written statements from Leo Kesler, whom the police arrested along with Mackey, and Linda Parker, a corrections officer who observed Mackey at the Cowlitz County jail.
Sergeant Munger concluded that Mackey’s allegations were unfounded. Mackey received copies of the witnesses’ statements in July 1997. McKee’s statement, however, referred to Sergeant Munger’s notes, which Mackey did not receive. Apparently, before McKee made his written statement, he asked that Sergeant Munger read aloud the notes from his previous telephone interview with McKee. Mackey sought discovery of Sergeant Munger’s typewritten notes, which were part of the police department’s internal report. (Sergeant Munger shredded his handwritten notes before Mackey sought discovery.)
After Mackey moved for disclosure, the municipal court decided to review the entire report, in camera, for exculpatory statements that might exonerate him. Mackey also asked that the court look for inconsistencies between Sergeant Munger’s notes and the witnesses’ written statements. Apparently, the municipal court found no exculpatory evidence in the report. But when Mackey asked whether the court looked for inconsistencies, it stated that it did not `recall anything inconsistent’ but agreed to `double check’ for any `SLIGHT’ inconsistency. Clerk’s Papers (CP) at 130-31. Mackey then asked the court to disclose the notes from Sergeant Munger’s witness interviews. Ultimately, however, the court did not disclose the report.
At trial, the City called several witnesses, including McKee, Parker, and Peterson. The jury found Mackey guilty of disorderly conduct and resisting arrest. Subsequently, Mackey appealed to the Cowlitz County Superior Court. After reviewing the records and the report, the superior court ordered as follows:
1. As to the Disorderly Conduct Charge: The decision of the Longview Municipal Court to deny disclosure of the requested information was proper and not error as such information was not material and had no relevance to the Disorderly Conduct charge. The conviction is affirmed.
2. As to the Resisting Arrest Charge: The court finds that the information was relevant, that the Longview Municipal Court’s decision to deny disclosure was based upon an erroneous standard of review, and that the error was not invited by the appellant. The court further finds, however, that such error was harmless in that had the requested information been disclosed to the defense, there is not a reasonable probability that it would have affected the outcome of the trial.
Resp’t Supp. CP at 1-2. We granted discretionary review.
I. Discovery
The parties agree that the municipal court applied the wrong standard in refusing discovery of the internal report. But contrary to the superior court’s decision, Mackey argues that the municipal court’s refusal to order disclosure was not harmless error. Accordingly, he asks this court to reverse and remand for a new trial. The City counters that any error was harmless.
We review a trial court’s decision regarding the scope of discovery for an abuse of discretion. State v. Mak, 105 Wn.2d 692, 704, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). A trial court abuses its discretion when it is `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Due process provides defendants with access to material evidence in the prosecution or the court’s possession.[1]
Evidence is `material’ if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”[2] A `reasonable’ probability is “sufficient to undermine confidence in the outcome.”[3] Indeed, the `mere possibility that an item of undisclosed evidence might have . . . affected the outcome of the trial . . . does not establish `materiality’ in the constitutional sense.’ Mak, 105 Wn.2d at 704-05. Similarly, the State’s failure to disclose material evidence violates a defendant’s due process and fair trial rights only if the defendant requested disclosure, the evidence was material to the issue or guilt or punishment, and the evidence favored the defendant.[4]
Here, CrRLJ 4.7 governed Mackey’s discovery request. To resist discovery, the City asserted a privilege under RCW 5.60.060(5)[5] and an exemption under RCW 42.17.310(d).[6] Therefore, the test that the municipal court should have used was (a) whether the public interest would suffer by disclosure or (b) whether nondisclosure was essential to effective law enforcement or for the protection of any person’s right to privacy. See Barfield v. City of Seattle, 100 Wn.2d 878, 883, 676 P.2d 438
(1984) (discussing RCW 5.60.060(5)); State v. Jones, 96 Wn. App. 369, 380, 979 P.2d 898 (1999) (discussing RCW 42.17.310(d)). Instead, the municipal court examined the report for exculpatory statements that would exonerate the defendant.
Mackey complains that the superior court used the wrong standard when, on appeal, it applied the non-constitutional harmless error test whether there is a reasonable probability that the error materially affected the outcome of the trial. See State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). He asserts that the superior court should have applied the tests from Barfield, 100 Wn.2d 878, and Jones, 96 Wn. App. 369.
We agree with the superior court and Mackey that the municipal court did not use the correct test; but the appropriate question is: Was the municipal court’s discovery decision harmless error under the non-constitutional standard. We hold that it was. Here, the municipal court’s refusal to grant discovery did not violate Mackey’s due process and fair trial rights because Sergeant Munger’s notes did not favor Mackey. Indeed, the superior court reviewed the report in camera and found that it could not have affected the outcome of the trial. Furthermore, the `constitutional’ harmless error standard (i.e., harmless beyond a reasonable doubt)[7] applies only to errors of constitutional magnitude. Mackey complains that the material might have been useful to him. But Mak, 105 Wn.2d at 704-05, places the burden on the defendant to make this showing. Mackey has not shown how this evidence would have been `material’ to his guilt. Thus, the constitutional harmless error test does not apply because the municipal court’s discovery decision did not violate Mackey’s due process rights.
Regardless, even assuming constitutional error, as the City points out, the evidence presented at trial overwhelmingly supported the jury’s guilty verdicts. (Notably, Mackey’s own doctor agreed that his `injuries’ were not consistent with his version of the arrest. Likewise, despite his claim that the arresting officers injured his neck and spine, Mackey admitted that he went dancing the week after his arrest.) Thus, even if the municipal court had granted Mackey’s discovery request, there is no question that a reasonable jury would still have convicted him. Mackey complains that if we affirm, he will never be able to view the report and that it will have all been in camera by the judiciary. He is correct, but even the procedure he cites under Jones contemplates in camera determinations.[8] CrRLJ 4.7(g)(6) also permits in camera proceedings. Thus, Mackey has not made a showing that he was denied Brady[9]
material. Furthermore, two courts reviewed the report, in camera, finding nothing that would be in his favor. Thus, the error of review by the municipal court was harmless.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: ARMSTRONG, J., HUNT, C.J.
(1993) (`A defendant’s constitutional due process right to disclosure relates only to evidence which is favorable to the defendant and material to guilt or punishment.’).
(1986).