State v. Musumeci

717 A.2d 56, 1998 R.I. LEXIS 272, 1998 WL 467373

• Court: Supreme Court of Rhode Island
• Decided: August 4, 1998
• Docket: 96-266-C.A.
• Status: Published

Opinions

OPINION

FLANDERS, Justice.

In the middle of a criminal trial charging the defendant, Robert Musumeci (Musume-ci), with illegal possession of marijuana, a Superior Court justice denied Musumeci’s dismissal motion but granted his motion for a mistrial because of the state’s grossly negligent (albeit nondeliberate) failure to comply in a timely manner with its discovery obligations. Ten months later, a second trial justice dismissed the charges against Musu-meci for the same discovery violation that led to the earlier mistrial. The state’s appeal from that adverse judgment requires us to answer the following question: Was the second trial justice warranted in dismissing the charges after the first trial justice had refused to do so and instead had declared a mistrial because of the state’s late production of discoverable evidence? We hold that she was not. Absent proof of substantial prejudice accruing to Musumeci during the ten months between the mistrial declaration and the convening of the second trial that could not have been remedied by one or more alternative measures, the second trial justice should not have dismissed the charges.

Facts and Travel

In early 1993 an undercover police officer (officer) posed as a truckdriver working for the North Providence public works department (DPW).¹ The officer befriended Musu-meci, a regular DPW employee. Over the course of the next several months the officer repeatedly approached Musumeci and communicated his desire to obtain marijuana for a fictitious girlfriend. In time, Musumeci promised that he would try to secure some of this substance from his friends. Initially Musumeci failed or declined to make good on his illicit promise, claiming that he could not procure any marijuana of good quality. Eventually, however, Musumeci did deliver to the officer one-quarter ounce of “killer weed,” later determined to be marijuana, in exchange for $50.

The state charged Musumeci with one count of unlawful delivery of marijuana in violation of G.L.1956 § 21-28-4.01(A)(2)(a) of the Rhode Island General Laws and the ease proceeded to trial in the Superior Court. In his opening statement Musumeei’s lawyer stated to the jury that he would prove police entrapment as a defense to the drug-delivery charge. He also suggested that Musumeci had never used and had never been involved with illegal drugs and that he had procured the marijuana merely as a favor to his new-found false friend at the DPW.

During cross-examination of the officer, whom the state called as its first trial witness, defense counsel learned for the first time that the officer had kept a daily log of his undercover investigation. But the state had failed to produce the log during pretrial discovery — or to notify defense counsel or the court of its existence — despite Musume-ci’s unobjected-to discovery requests calling for the production of such information. The prosecutor claimed that until the officer’s trial cross-examination, he too had been unaware of the log’s existence. Nonetheless the state immediately located and produced the log, giving it to Musumeci later that same day. As it turned out, certain entries in the log suggested that, contrary to defense counsel’s assertions in his opening statement, Mu-sumeci was intimately familiar with the local drug culture and had in fact used drugs on other occasions. In addition the log alluded to other individuals at the DPW who may have witnessed or overheard some of the alleged communication between Musumeci and the officer that led to the drug purchase.

Musumeci moved to dismiss the charge. He argued that the taint flowing from the log’s late disclosure and the now-impeachable representations made in his counsel’s opening statement merited dismissal or, alternatively, suppression of the log. The trial justice ruled that although the prosecution’s nondisclosure of the log was apparently unintentional, it constituted a clear violation of Rule 16 of the Superior Court Rules of Criminal Procedure. However, this first trial justice expressly rejected Musumeci’s entreaties to exclude the log from the prosecution’s trial evidence altogether or to dismiss the charge outright, considering those remedies unwarranted. He defended his decision explaining, “I think it’s too severe a sanction to dismiss it [the information].” Having failed to secure a dismissal or suppression of the evidence, the defendant then requested that the trial justice declare a mistrial. The trial justice granted this request because, in reliance upon the evidence before him, he determined this would be the appropriate sanction to rectify any prejudice to defendant. It is notable that the trial justice did not grant the mistrial conditioned on further consideration of defendant’s motion for dismissal, nor did he in any other fashion reserve ruling on the requested dismissal. Rather he flatly denied defendant’s motion for dismissal and granted defendant’s motion for mistrial.²

Shortly thereafter, Musumeci filed a motion to dismiss based solely on double-jeopardy grounds. The motion was continued to the time of trial. On February 1, 1996, some ten months after the mistrial, the parties convened for Musumeci’s second trial before another justice of the Superior Court (the second trial justice). Without objection from the state, Musumeci’s lawyer questioned the officer and his supervisor concerning the circumstances surrounding the log’s nonproduction before the start of the- first trial and concerning what they knew about the contents thereof. Although defense counsel examined these police officers extensively, he made no showing that he had attempted to interview any of the potential witnesses mentioned in the log, nor did he prove that any of these potential witnesses were now unavailable or were otherwise incapable of being interviewed. Nor did defense counsel make any showing of any additional form of prejudice to Musumeci resulting from the log’s late disclosure — other than the initial surprise he suffered upon learning of the log’s existence and of the factual contradictions between the log’s entries and his opening statement in the first trial.

Before ruling on the dismissal motion, the second trial justice acknowledged that the state’s nondisclosure of the log appeared to be unintentional and that the first trial justice had declined to dismiss the indictment. Nonetheless, she granted Musumeci’s renewed motion to dismiss the charges on the grounds that the state’s grossly negligent nondisclosure of the log had prevented defense counsel from interviewing potential witnesses while events were still fresh in their minds and that the dismissal sanction would serve as a deterrent to any future such instances of negligent nondisclosure of discoverable evidence by the prosecution. The second trial justice noted that she considered the state’s Rule 16 violation to be a “very, very grave” matter and that “very elemental preparation would have disclosed the existence of these extremely important notes.”

The state appeals from the second trial justice’s dismissal order. It alleges that, in the circumstances of this case, (1) dismissal of the indictment was an abuse of the second trial justice’s discretion and (2) the law-of-the-ease doctrine forbade the second justice from reexamining the first justice’s ruling in regard to the appropriate sanction for the state’s Rule 16 violation.

Analysis

I

Propriety of Dismissal as a Discovery-Violation Sanction

Rule 16(i) of the Superior Court Rules of Criminal Procedure authorizes the trial court to impose a specified range of sanctions for discovery violations or to “enter such other order as it deems appropriate.” Rule 16, like its federal counterpart, seeks to promote “[bjroader discovery by both the defense and the prosecution [in order to] contribute to the fair and efficient administration of criminal justice by aiding in informed plea negotiations, by minimizing the undesirable effect of surprise at trial, and by otherwise contributing to an accurate determination of the issue of guilt or innocence.” State v. Coelho, 454 A.2d 241, 244 (R.I.1982) (quoting Fed. R.Crim.P. 16 advisory comm. note).

Because the trial justice is in the best position to determine the harm resulting from a discovery-rules violation and can best assess the possibility of mitigating that harm, his or her ruling on what sanction should be imposed on that score will not be overturned absent a clear abuse of discretion. Coelho, 454 A.2d at 244-45; see also State v. Quintal, 479 A.2d 117, 119 (R.I.1984); State v. Darcy, 442 A.2d 900, 902 (R.I.1982). However, the trial court’s discretion is not without limits and is reviewable by this Court for an alleged abuse thereof. See Coelho, 454 A.2d at 245; Darcy, 442 A.2d at 902. In Coelho we set out four factors to be considered by the trial court, together with all the other facts and circumstances, when choosing an appropriate sanction for a party’s violation of Rule 16’s discovery and disclosure requirements: (1) the reasons for the nondisclosure or other violation, (2) any prejudice caused to the opposing party, (3) the feasibility of rectifying any prejudice, and (4) any other relevant factors. 454 A.2d at 245.

Although a dismissal of the pending charges is not one of the expressly enumerated discovery violation sanctions specified by Rule 16, this Court previously has recognized that pretrial case dismissal is both an available and a permitted Rule 16(i) discovery-violation remedy in circumstances where there has been a “repeated unexcused failure of the prosecution to make discovery in accordance with Rule 16 of the Superior Court Rules of Criminal Procedure” after a Superior Court justice had previously ordered the prosecution to do so. See State v. Rawlin-son, No. 85-261-C.A. (R.I., unpublished order, filed October 16, 1986) (quoted in State v. DiPrete, 710 A.2d 1266, 1292 (R.I.1998) (Bourcier, J., dissenting)); see also State v. Quintal, 479 A.2d 117 (R.I.1984). However, few reported cases have reached this Court after the extreme sanction of a dismissal order has been imposed as a discovery violation sanction.³

Recently, in DiPrete this Court vacated a Superior Court justice’s pretrial dismissal of an indictment based upon the prosecution’s discovery violations in circumstances where the allegedly wrongfully withheld information was eventually produced by the state. 710 A.2d at 1274, 1276-77. The DiPrete defendants had argued that the prosecution’s discovery violations had prejudiced them right to a fair trial because in the course of moving for sanctions on account of the prosecution’s discovery noncompliance, the defendants had been forced to reveal their trial strategy for impeaching the state’s key witnesses. Id. at 1269. But this Court held that the indictment in that case should not have been dismissed because such alleged prejudice was insufficient to warrant dismissal of the charges. Id. at 1273-74.

However, in Quintal this Court affirmed such a dismissal sanction when the prosecution had repeatedly failed to produce the requested discovery materials notwithstanding the trial court’s previous entry of a conditional dismissal order providing for this disposition if the requested information was not produced by a date certain (an order that the state then ignored). 479 A.2d at 118. After the state still failed to comply with its discovery duties, we noted that “[n]one of the sanctions specifically provided for in Rule 16(i) could possibly have neutralized the prejudice suffered by defendant” because the state’s noncompliance with the court’s production order continued to deny the defendant any opportunity to examine the requested discovery materials or to avail himself of the potential advantages that might have flowed from doing so. Id. at 119. Thus, in light of the state’s persistent and deliberate refusal to comply with the court-ordered discovery and the unavailability of another effective sanction, we affirmed the trial justice’s dismissal order in Quintal, observing that “the state’s noncompliance robbed defendant of the very tools needed to establish the requisite prejudice.” Id. at 120.

In this case the first trial justice found that the state’s conduct presented “a very grievous violation” of the discovery rules. However, after reviewing the factors set out in Coelho, that justice expressly rejected dismissal as the appropriate sanction for the state’s negligent but nondeliberate misconduct and decided instead that a mistrial would likely cure any resulting prejudice to defendant. We view that decision as falling well within the first trial justice’s considered discretion. See State v. Simpson, 595 A.2d 803 (R.I.1991) (mistrial or continuance required to mitigate late disclosure of discover material); State v. Verlaque, 465 A.2d 207 (R.I.1983) (noting that early disclosure of discoverable evidence is essential to allow counsel to marshal a defense); State v. Coelho, 454 A.2d 241 (R.I.1982) (declaring mistrial where late disclosure of discovery materials reduced effectiveness and increased difficulty of defense counsel’s efforts); State v. Darcy, 442 A.2d 900 (R.I.1982) (late disclosure rendered defense strategy ineffective or even counterproductive).

When the second trial justice revisited this same issue ten months later, she placed considerably greater emphasis on the prejudice she perceived that defendant necessarily must have suffered because of his lost opportunity to interview the potential witnesses identified in the log when the events at issue were still relatively fresh in their memories. She also gave great weight to what remedy she determined was needed to deter prosecutors from committing such discovery abuses in the future. But on these facts we are not persuaded that the second trial justice properly exercised her discretion in deciding to administer the extreme sanction of dismissal.⁴

Here, in contrast to the situation in Quin-tal, the state eventually did produce the wrongfully withheld information and gave it to the defense after the court had ordered it to do so. Thus the prosecution’s late production of discoverable material — rather than its nonproduction after a court order to do so— is the ultimate discovery transgression at issue here. The first trial justice’s declaration of a mistrial and the ten-month interval between trials would also seem to have been intended to alleviate most of, if not all, the substantial prejudice resulting to the defendant from the factual “ambush” that occurred during the first trial and from defense counsel’s unwitting opening remarks about his client’s drug-free past.⁵ Although the second trial justice was justifiably concerned about the potential staleness of the evidentia-ry leads belatedly revealed in the log — concerns that may have proven to be entirely valid — Musumeci presented absolutely no evidence that the state’s late production of the log had prevented him from locating or interviewing these witnesses during the ten months following the mistrial declaration or from obtaining any information he needed from them to establish any defense he may have had to the charge. Indeed, there is no indication that he made any effort at all to locate or to talk to those witnesses after obtaining the log and the trial continuance, much less that the information they would have imparted to him was material to any defense Musumeci could have raised to the charge against him.

Had Musumeci shown that certain material witnesses had died, that they had suffered memory losses or other testimonial impairment, or that they had become substantially less helpful to the defense than they otherwise would have been if the log had been disclosed in a timely fashion, the second trial justice would have been presented with an expanded evidentiary record different from the one that the first trial justice had faced and, perhaps, with a more compelling ease for dismissal. But absent any such showing by Musumeci, the second trial justice should not have assumed or posited the existence of such irremediable and material prejudice inuring to Musumeci after the mistrial declaration such that her Coelho analysis could jump to a dismissal disposition without the need for any evidentiary showing of such prejudice. Thus, contrary to the dissent’s hypothetical concern about prosecutorial discovery violations causing a defendant to be unjustly convicted of criminal charges, this was not a situation where the defendant could substantiate that he would be “convicted and in jail as a result of prosecutorial misconduct” unless the charges against him were dismissed. Moreover, the dissent’s reliance upon eases suggesting that “proof of prejudice is unnecessary where there has been intentional and deliberate nondisclosure” is misplaced because those cases have to do with granting a new trial to a defendant because of the prosecution’s deliberate nondisclosure of exculpatory evidence, see, e.g., State v. Wyche, 518 A.2d 907 (R.I.1986), and not, as here, with dismissing an indictment for the state’s negligence in failing to disclose additional inculpatory evidence in a timely fashion.

The second trial justice was also obviously intent on sending a message to prosecutors that such future discovery misconduct would not be tolerated. Although punishment and deterrence are valid and important considerations in selecting a sanction under Rule 16 and the trial justice should choose a sanction sufficiently potent to achieve such goals when the circumstances call for such a result, even weightier policy considerations favor resolution of criminal charges on their merits. See, e.g., United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510, 515 (1966) (reversing the dismissal of an indictment for the government’s violation of the defendant’s Fifth Amendment rights because barring the prosecution would “increase to an intolerable degree interference with the public interest in having the guilty brought to book”). Thus dismissals of all pending criminal charges for the state’s commission of discovery violations are to be disfavored save in the most extreme circumstances. See DiPrete, 710 A.2d at 1274. Indeed, we conclude that dismissal is an appropriate sanction only as a last resort and only when less drastic sanctions would be unlikely or ill suited to achieve compliance, to deter future violations of this kind, and to remedy any material prejudice to defendant.⁶ See Darcy, 442 A.2d at 902 (trial court should employ mistrial — and a fortiori dismissal — only “[i]f no other available discretionary measures can possibly neutralize the harmful effect”).⁷

Even though the second trial justice in this case was understandably angered by the state’s inexcusable lack of preparation and its unwillingness at the hearing before her to acknowledge fully the consequences and impropriety of its actions in failing to discover and to produce the log in a timely fashion, the burden of any dismissal sanction ultimately falls squarely on the people of this state and not solely upon the Attorney General’s office. And although we agree with the second trial justice’s observation that defendant is entitled to a “trial by jury, not trial by ambush,” we are also of the opinion that as a general rule, and subject to constitutional safeguards, a criminal defendant should not “go free because the constable [or the prosecution] has blundered.” People v. Defore, 242 N.Y. 13, 150 N.E. 585, 587 (1926) (Cardozo, J.). Absent substantial prejudice and a showing that “no other available discretionary measures can possibly neutralize the harmful effect [of the prosecution’s discovery violations],” Darcy, 442 A.2d at 902, some other remedy(ies) and/or sanction(s) (including, for example, a trial continuance, a mistrial, evidence preclusion, an order re quiring the state and/or the offending prosecutor(s) to reimburse all or a specified dollar amount of the reasonable attorney fees and other expenses incurred by the defendant as a result of the discovery violation, and/or referral of the offending prosecutor(s) to bar disciplinary counsel) should generally be imposed — at least in the first instance — upon the court’s learning of a material discovery violation, even when, as here, the prosecution is guilty of grossly negligent misconduct.⁸

In addition, the first trial justice, who had most of these same facts before him, had already decided that dismissal was too severe a sanction. Although we need not determine whether the law-of-the-case doctrine should have at least presumptively barred any reexamination of this initial ruling, the fact that the first justice had already passed on this matter should have factored heavily into the second justice’s analysis of the propriety of dismissal in the absence of any showing of subsequent prejudice to the defendant.

In light of all the circumstances presented in this record, we hold that the second trial justice, while appropriately concerned about protecting defendant’s right to a fair trial and about deterring future discovery noncompliance by the prosecution, nonetheless abused her discretion by granting defendant’s motion to dismiss the indictment. “An abuse of this type of discretion occurs when a choice made is not within the discretionary area established by the law.” State v. Tavarozzi, 446 A.2d 1048, 1051 n. 1 (R.I.1982). After the first trial justice had denied defendant’s dismissal request and instead had declared a mistrial, and after defendant failed to make any showing of some new form of substantial prejudice that defendant could not have raised before the first trial justice and that the second trial justice could not have remedied through the imposition of some alternative sanction(s), the second trial justice was not at liberty to dismiss the charges and thereby countermand the discovery-violation remedy selected by the first trial justice.

II

Stare Decisis

The Chief Justice’s concurring and dissenting opinion (hereinafter referred to as the concurring opinion) chides the majority for its failure to follow the “no authority” rationale adopted by the DiPrete majority in reversing the dismissal of the indictment in that case. However, notwithstanding our disagreement with the “no authority” test used in DiPrete to evaluate the motion justice’s dismissal sanction in that case, we do no violence to the doctrine of stare decisis here because our holding in this case reversing the indictment’s dismissal is consistent with the same result reached by the Court in DiPrete. Further, DiPrete’s “no authority” language was not essential to the Court’s reversal of the indictment’s dismissal in that ease, and is therefore mere dicta. See, e.g., Newport Electric Corp. v. Public Utilities Commission, 454 A.2d 1224, 1225 (R.I.1983) (that portion of Public Utilities Commission report and order opining that future viability of electric company was questionable and that the company’s management was efficient “was not necessary to the commission’s decision and therefore constituted obiter dictum” ).

Nevertheless, it may be useful to recall that “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.” Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604, 612 (1940) (Frankfurter, J.). Largely for the reasons indicated in Part II of Justice Boureier’s dissenting opinion in DiPrete, we believe that the use of an abuse-of-discretion standard to review a trial court’s sanction rulings for criminal discovery violations is “a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience” than the “no authority” test embraced by the DiPrete majority.⁹ Accordingly, with respect to DiPrete’s “no authority” dicta, “considering how recently the case was decided, very little harm will come from overruling it, and that by doing so we shall *** establish the correct rule.” Allen v. Danielson, 15 R.I. 480, 482-83, 8 A. 705, 706 (1887) (stated after the Court decided to overrule a recently decided case).

Justice O’Connor of the United States Supreme Court more recently sounded a similar note in the case Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995):

“Remaining true to an ‘intrinsically sounder’ doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation, ‘special justification’ exists to depart from the recently decided case.” Id. at 231, 115 S.Ct. at 2115, 132 L.Ed.2d at 184-85.

We also note that our disagreement with the DiPrete majority’s dicta concerning whether a Superior Court trial justice has the discretion to dismiss an indictment in certain circumstances may be more semantic than substantive. Except for the dissent,¹⁰ all of the justices of this Court concur that in certain egregious circumstances — namely, flagrant prosecutorial discovery noncompliance coupled with substantial resultant prejudice to the defendant that cannot be remedied by alternative measures — Rule 16(i) permits a trial justice to dismiss a criminal indictment both before and after the underlying criminal trial has begun. Conversely, we also agree that a trial justice commits reversible error by dismissing an indictment for the prosecution’s discovery violations in the absence of such egregious circumstances. In any event, because we conclude that the second trial justice in this case, like the motion justice in DiPrete, committed reversible error when she dismissed the indictment in the absence of the requisite showing of substantial prejudice to the defendant, the principle of stare decisis visa-vis the narrow holding of the DiPrete case is not dishonored here.

Finally, we would simply observe in passing that we are less hesitant in this case than we might otherwise be in departing from even the dicta of such a recently decided ease when, as here, it would appear that four of the five sitting justices of this Court — both then and now — are not in accord with the statements in question. In this regard, it is important to recall that the DiPrete majority was composed of the Chief Justice and two retired justices of this Court who had been designated to sit on that case by the Chief Justice pursuant to his statutory power to assign such duties to retired justices. See G.L.1956 § 8-3-8(c). Because two of the five active justices on this Court recused themselves from participation in the DiPrete decision and because the other two active judges of the Court dissented from the “no authority” portion of the majority’s opinion, the Chief Justice was the only one of this Court’s then active judges who joined this aspect of the majority’s opinion in DiPrete. Accordingly, as is evident from the opinions in this case, four of the five active judges of this Court when DiPrete was decided are of the opinion that the “abuse of discretion” standard is the proper one to use in reviewing a Superior Court justice’s decision to impose sanctions for the prosecution’s discovery noncompliance — even when dismissal of an indictment is the sanction selected. In these unusual (if not unique) circumstances, we believe that our freedom to disagree with the dicta of such a recently decided case of this Court is greater than it otherwise would be in the usual course.

Nonetheless we totally agree with the concurring opinion’s appraisal of the splendid and exemplary service rendered to this Court by its retired justices. And we acknowledge, as does the concurring opinion, their combined sixty years of trial and appellate judicial experience. Remarkably, however, neither the concurring justice nor the retired justices during their combined one-hundred-plus years of outstanding judicial service had ever before espoused the “no authority” rule that they articulated for the first time in DiPrete. And all of these justices were members of the Court when it issued its unanimous unpublished order in Rawlinson that acknowledged the “ample authority” of the trial justice to dismiss an indictment under the egregious circumstances presented by the prosecution’s discovery violations in that case. In fact, retired Justices Shea¹¹ and Murray¹² had authored more than several of the milestone and unanimous opinions of this Court that firmly set out and established the abuse-of-discretion standard of appellate review for Rule 16 discovery violation sanctions imposed by a trial justice. Moreover, as late as 1997 and until DiPrete, the author of the concurring opinion had also consistently adhered to the abuse-of-discretion standard in reviewing sanctions for Rule 16 violations.¹³ This is the standard to which we now return as we reinstate it in this opinion.

III

Double Jeopardy

Musumeci also claims that a retrial would violate his right not to be placed in double jeopardy for the same offenses. The general rule is that the double-jeopardy bar does not preclude a second trial when a defendant requests a mistrial. Nonetheless, in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the United States Supreme Court recognized a narrow exception to this general rule, concluding that intentional goading by the prosecution designed to induce a defendant to seek a mistrial would preclude on double-jeopardy grounds the otherwise allowable retrial of the defendant. Id. at 673, 102 S.Ct. at 2088, 72 L.Ed.2d at 423. We recently reaffirmed the incorporation of the Oregon v. Kennedy standard into our state constitutional jurisprudence in State v. McIntyre, 671 A.2d 806, 807 (R.I.1996). See also State v. Diaz, 521 A.2d 129, 133 (R.I.1987) (reviewing Rhode Island double-jeopardy jurisprudence). In McIntyre, however, we expressly declined an invitation to expand the exception to encompass prosecutorial misconduct that was reckless yet unintentional. McIntyre, 671 A.2d at 807.

Musumeei’s double-jeopardy argument is predicated on his assertion that the first trial justice found that the state had goaded the defense into requesting a mistrial. Although the first trial justice did use the word “goaded” at one point during a colloquy between the bench and defense counsel, a review of the entire transcript, while taking that statement in its overall context, does not show that the state goaded defendant into moving to pass the case. As in Diaz, “the prosecution] did not intend to bring about a mistrial, even though [its] conduct gave rise to a situation in which a mistrial should properly have been granted.” 521 A.2d at 132. Indeed, here as in Diaz, “the prosecution] vigorously opposed defendant’s motion for a mistrial.” Id. at 133.

As Musumeci concedes, the second trial justice declined to rest her dismissal order on double-jeopardy grounds. Therefore, no evidence below suggests that the prosecution’s nonproduction of the officer’s daily log was intentional or otherwise designed to wheedle defense counsel into requesting a mistrial. See State v. Gordon, 508 A.2d 1339, 1345 (R.I.1986) (“mere prosecutorial error, although it may necessitate a mistrial, will not operate to preclude a retrial”). And our independent review of the record fails to disclose any basis for making such a finding. Without that critical factual predicate, this case does not fall within Oregon v. Kennedy’s narrow exception to the general rule that a mistrial declaration requested by the defendant will not bar a second prosecution of a criminal defendant.

Conclusion

For the reasons discussed above, we sustain the state’s appeal, vacate the Superior Court order dismissing the information, and remand this case to the Superior Court for trial.

1 . Justice Goldberg's concurring and dissenting opinion (hereinafter referred to as the dissent) suggests that the investigating officer in this case should not be referred to as an "undercover police officer” but merely as "an applicant for a law enforcement position with the North Providence police department who in the hopes of being hired for a full-time patrolmen’s position accepted an offer to participate in the investigation. This is a significant distinction,” according to the dissent, because "this ‘officer had absolutely no prior training, which may very well lend support to the entrapment defense planned by Musumeci’s counsel. Moreover this witness, not a paid police informant, certainly had a vested interest in the success of the investigation.” Respectfully we disagree with this reasoning because in this case the distinction drawn is one without any material difference. The undeniable fact is that the officer in question was operating in an undercover capacity by concealing his affiliation with the North Providence police department from Musumeci. Whether the officer’s presumed "interest in the success of the investigation” arose out of his pending application for a full-time-patrolman’s position or out of his hope that good police work would be rewarded in some other way is immaterial because it is unlikely that his interest would be substantially different from the interest that any police officer functioning in an undercover role would have in the success of such an investigation. Although the specific motive for desiring such success may vary from officer to officer depending on his or her particular personal career circumstances at the time of the investigation (applying for a full-time position versus hoping for a promotion versus desiring a favorable employment review versus wanting to be recognized for savvy police work, and so forth), the officer’s natural desire for the investigation to succeed is a constant, whatever his or her particular employment status may be while the investigation is proceeding. And any alleged deficiencies or gaps in the officer’s training were fair game for the defense to exploit at trial regardless of his particular employment status at the time he performed the undercover work in question.

2 . Although the first trial justice stated that "[i]t’s not such I feel I can on my own dismiss it. If somebody is reading it later on somebody else might dismiss it,” we do not construe his remarks to indicate that his denial of defendant's Super.R.Crim.P. 16 dismissal motion was provisional. He may simply have been acknowledging the possibility that a later showing of prejudice to defendant might warrant another justice in granting a dismissal. But the context of his colloquy with the prosecutor on this point indicates that he was more likely referring either to a later-filed double-jeopardy-based dismissal motion or to this Court’s possible appellate review than to another justice of the Superior Court’s taking a second look at his Rule 16 sanctions ruling. And as previously noted, he had earlier stated that "I think it’s too severe a sanction to dismiss it [the information].” Moreover, contrary to the dissent’s assertion that "Musumeci clearly did not ‘request’ a mistrial,” that is exactly what the defendant’s lawyer did when he explicitly asked the trial justice to grant a mistrial. While he may have been reluctant to do so, and moved for this remedy only as a last resort, nonetheless the defendant’s lawyer clearly and unmistakably requested the trial justice to grant this specific relief.

3 . In State v. Rawlinson, 526 A.2d 1278 (R.I. 1987), the defendant was tried and convicted by a Superior Court trial jury. In his appeal to this Court he alleged as one of his reasons for appeal that a Superior Court justice had previously dismissed a criminal information containing the same charges upon which he was later tried and convicted. The earlier information had been dismissed on defendant’s motion because of the state’s repeated failure to comply with previously entered court orders requiring it to abide by the discovery provisions of Rule 16. In the course of the appeal, this Court entered an unpublished order in which it acknowledged the "ample authority” of a trial justice in such circumstances to grant a defendant's pretrial motion to dismiss the case with prejudice because of "the persistent failure of the prosecution to make discovery” pursuant to the previously entered (but ignored) Rule 16 discovery orders. See State v. DiPrete, 710 A.2d 1266, 1293 (R.I.1998) (Bourcier, J., dissenting) (quoting State v. Rawlinson, No. 95-261-C.A. (R.I., unpublished order, filed October 16, 1986)).

Although the Rawlinson court’s published per curiam opinion did not discuss further the propriety of the earlier dismissal order, this Court held that the previous dismissal precluded the defendant’s later prosecution on a subsequent information. As a result, Rawlinson’s conviction was vacated. Thus, to date DiPrete and Quintal remain the only reported cases that we have been able to locate in which this Court has specifically considered the merits of a Superior Court's dismissal sanction for a Rule 16 discovery violation.

4 . A trial justice’s discretion to choose dismissal of the charges as a sanction for the prosecution’s discovery violation constitutes an exercise of judicial discretion that is limited, bounded by the law, and reviewable for an abuse thereof when, under the circumstances, "a choice made is not within the discretionary area established by the law.” State v. Tavarozzi, 446 A.2d 1048, 1051 n. 1 (R.I.1982).

"An exercise of judicial discretion may be classified as belonging to one of two general categories. The first type accords to judges freedom of choice in areas unhampered by legal rules. A simple yet familiar example is a decision to recess court. Such a determination is unreviewable. The second class of judicial discretion also involves freedom of choice but the choices are limited, bounded by the law, and reviewable. Lord Coke has defined this category of discretion as 'discernere per legem quid sit justum' ('to see what would be just according to the laws in the premises’). 7 Coke, Institutes of the Laws of England 41 (London, 1797). An abuse of this type of discretion occurs when a choice made is not within the discretionary area established by the law." Tavarozzi, 446 A.2d at 1051 n. 1. (Emphases added.)

5 . The second justice acknowledged as much during the hearing on Musumeci’s renewed dismissal motion when she stated, "Didn’t you already get your Rule 16 remedied which was the trial judge declaring a mistrial?"

6 . Nothing we say here, however, is intended to discourage the Superior Court’s use of conditional dismissal orders as a sanction for discovery noncompliance, or to the entry of dismissal judgments following the state's noncompliance with such orders. But in this case, no such conditional order had been entered, much less violated, before the court pounded its dismissal hammer.

7 . This accords with the general rule in federal criminal cases that the trial justice "should impose the least severe sanction necessary to ensure compliance with its discovery orders,” see 25 Moore’s Federal Practice § 616.02[4][d], at 616-21 (3d ed.1998), and that dismissal is inappropriate absent flagrant abuse causing substantial prejudice to the other party. See, e.g., United States v. Taylor, 13 F.3d 986, 991 (6th Cir.1994); United States v. Jacobs, 855 F.2d 652, 655-56 (9th Cir. 1988).

8 . Contrary to the statement in the dissent, we make no "pronouncement that weightier policy considerations dictate that we overlook gross negligence by the prosecution if it means a criminal defendant will 'go free.’ ” Nor do we adopt what the dissent calls "the majority’s intentional misconduct/failure to produce test” pursuant to which "dismissal is only appropriate in instances where the conduct is intentional or the prosecution fails completely to deliver the required materials.” The issue is not whether prosecutorial misconduct in complying with its discovery obligations should be overlooked by the trial court— it never should be — but whether and when dismissal of all criminal charges (instead of some lesser sanction) should be the appropriate remedy for such misconduct. All we are saying is that, except in cases like State v. Quintal, 479 A.2d 117 (R.I.1984), where the state persists in violating a prior court order or in other extreme circumstances not present here, a trial justice should not be throwing out an indictment with the bathwater dirtied by the prosecution’s discovery violation(s).

9 . In addition to its venerable tenure in Rhode Island as the appropriate standard for appellate review of trial court discovery sanction rulings, the abuse-of-discretion test has also long been employed by the federal courts for the same purpose. See State v. Coelho, 454 A.2d 241, 244 (R.I.1982) (Rule 16 based largely on federal counterpart); see generally 25 Moore’s Federal Practice § 616.02[4][e], at 616-28 (3d ed.1998) (citations omitted). Thus, to borrow Mr. Justice Jackson’s dictum in Western Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953) (Jackson, J., dissenting), it would appear that DiPrete's “no authority’’ rule as applied to a trial court’s dismissal of the criminal charges for. prosecutorial discovery violations stands alone and "is so unique that it is without precedent and is likely to be without progeny.” Id. at 275, 73 S.Ct. at 670, 97 L.Ed. at 1003.

10 . The dissent subscribes to the view that "Rule 16 should be used not only to remedy the prejudice resulting from a party’s nondisclosure but also as a prophylactic measure to deter future misconduct.” Although we agree that deterrence of future prosecutorial misconduct is certainly one of the purposes for granting a Rule 16 motion for sanctions in response to the state’s discovery noncompliance, in this case the mere gratification of deterrence objectives in response to the prosecution’s nondeliberate violation of its discovery' obligations was insufficient to warrant the ultimate penalty of dismissing the criminal charges.

11 . See State v. Squillante, 622 A.2d 474, 478 (R.I.1993); State v. Engram, 479 A.2d 716, 718-19 (R.I.1984); State v. Verlaque, 465 A.2d 207, 213 (R.I.1983); State v. Concannon, 457 A.2d 1350, 1353 (R.I.1983).

12 . See State v. Evans, 668 A.2d 1256, 1259 (R.I.1996); State v. Ramos, 553 A.2d 1059, 1068 (R.I.1989); State v. Lawrence, 492 A.2d 147, 149 (R.I.1985); State v. Quintal, 479 A.2d 117, 119 (R.I.1984); State v. Sciarra, 448 A.2d 1215, 1218 (R.I.1982).

13 . See State v. Gomes, 690 A.2d 310, 319 (R.I.1997); State v. O’Dell, 576 A.2d 425, 430 (R.I.1990); State v. Darcy, 442 A.2d 900, 902 (R.I.1982).