                                                         This opinion was fiied for record

           riTE                                                   OMK onOt|-.12,20n
      IN CLERKS OFFICE
WFRaE COURT,81RIE OF mSHR^QTON
    DATE     QCT I 2 2517
                                                              SUSAN L CARLSON
^ClAAl/UA4Slir , C/                                        SUPREME COURT CLERK
       CHIEF JUSTICE



      IN THE SUPREME COURT OF THE STATE OF WASHINGTON




    STATE OF WASHINGTON,
                                                          NO. 93293-0
                                 Petitioner,

                    V.                                    EN BANC


    ASCENCION SALGADO-MENDOZA,
                                                          Filed       OCX 1 2
                                 Respondent.




           STEPHENS, J.—We are asked to decide whether the district court in

  Ascencion Salgado-Mendoza's 2013 trial for driving under the influence abused its

  discretion by refusing to suppress the testimony ofthe State's toxicology witness. The

  State initially disclosed the names of nine toxicologists from the Washington State

  Patrol toxicology laboratory,indicating its intent to call "one ofthe following." Clerk's

  Papers (CP) at 6. It whittled the list to three names the day before trial, but did not

  specify which toxicologist it would call until the morning oftrial, noting that it provided

  the witness's name "as soon as we had it and that's all that we can do in terms of


  disclosure." Verbatim Report of Proceedings (YRP)(May 9, 2013) at 31. Salgado-
State V. Salgado-Mendoza (Ascencion), 93293-0



Mendoza moved to suppress the toxicologist's testimony under CrRLJ 8.3(b)based on

late disclosure, asking the court to "send a message to the state patrol crime lab and

say this isn't okay anymore." Id. at 27. The court refused, finding no actual

prejudice to the defense and observing that the practice ofdisclosing a list ofavailable

toxicologists rather than a specific witness was driven more by underflinding of the

crime labs than by mismanagement.

      Salgado-Mendoza appealed to the superior court, which found the district

court had abused its discretion. The Court of Appeals affirmed, reasoning that the

delayed disclosure violated the discovery rules and caused prejudice. We disagree.

While the State's disclosure practice amounted to mismanagement within the

meaning of CrRLJ 8.3(b), Salgado-Mendoza has not demonstrated actual prejudice

to justify suppression. The trial court considered all the circumstances, including

the nature ofthe witness's testimony and the five months that counsel had to prepare

following the State's initial disclosure. On this record, we cannot say the district

court's ruling was "manifestly unreasonable" and thus an abuse of discretion. We

reverse the Court of Appeals.

                     FACTS AND PROCEDURAL HISTORY


      In August 2012, Salgado-Mendoza was arrested on suspicion of driving under

the influence(DUI), Salgado-Mendoza consented to a breath test, which revealed his




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State V. Salgado-Mendoza (Ascencion), 93293-0



blood alcohol concentration to be above the legal limit. The State charged Salgado-

Mendoza with DUI,and trial was set in the district court of Jefferson County for May

9,2013.

      At trial, the State planned to call a toxicologist as an expert witness to testify

regarding DUI testing procedures in Washington. Five months before trial, the State

disclosed a list ofnine potential toxicologist witnesses,only one ofwhom would testify.

Two weeks before trial, Salgado-Mendoza filed a supplemental discovery request

demanding,in part,that the State identify which toxicologist it actually intended to call.

The State asserts that it attempted to comply. Salgado-Mendoza still had not received

this information by May 6, 2013, three days before trial. Alleging governmental

misconduct, he filed a CrRLJ 8.3(b) motion to dismiss the case or suppress the

toxicologist's testimony. The day before trial, the State narrowed the list to three

names. At 9:00 a.m. on the morning of trial, the State identified the toxicologist who

would testify, indicating it had just received the name that morning.

      Salgado-Mendoza asserted that the State's delayed disclosure was "a classic

form ofgovernmental misconduct." VRP at 25. Arguing that the need to interview and

prepare for cross-examination of nine witnesses when only one will testify placed an

undue bmfien on the defense, Salgado-Mendoza urged the court to dismiss—or at least




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State V. Salgado-Mendoza (Ascencion), 93293-0




to preclude the toxicologist's testimony.^ In opposition, the State argued that five

months was adequate time to prepare for each possible witness, the late disclosure was

a result of the toxicology lab being "overworked and understaffed,"^ and the

prosecution had repeatedly contacted the toxicology lab to request that a specific

toxicologist witness be identified. VRP at 30. The trial judge denied the motion and

allowed the toxicologist's testimony. Id. at 35-36(citing the toxicology lab's perennial

staffing shortages and the five months Salgado-Mendoza had to prepare). The case

proceeded to trial, where ajuiy found Salgado-Mendoza guilty.

       Salgado-Mendoza appealed his DUI conviction to the superior court for

Jefferson County. Finding that the State's late disclosure constituted governmental

mismanagement and a violation ofdiscovery rules, that court held that the district court

abused its discretion by failmg to suppress the toxicologist's testimony. The superior

court additionally held the trial court abused its discretion by suppressing a portion of




       ^ Salgado-Mendoza further argued that the need to review nearly 200 pages of
available background materials (roughly 20 pages per toxicologist) represented a
"tremendous and needless waste of[counsel's] time." CP at 40. He conceded that the 60
pages associated with the three short-list names would have been reasonable had he been
given more than one day's notice. See VRP at 28.
       ^ Because the lab serves the entire state, its toxicologists are sometimes asked to
testify at multiple trials at the same time. The toxicology lab's staff shortage was
particularly acute here because at the time oftrial, three ofthe nine disclosed toxicologists
were on maternity leave. Although this suggests that there were actually only six
toxicologists who might testify, the State apparently did not remove the unavailable
toxicologists from the list until May 8, 2017.

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State V. Salgado-Mendoza (Ascencion), 93293-0



the defense expert's testimony regarding the breath alcohol testing machine used in

testing Salgado-Mendoza. The superior court reversed the conviction and remanded

the matter for a new trial.


       The State moved for discretionary review. The Court of Appeals, accepting

review only with respect to the trial court's decision not to suppress the toxicologist's

testimony, affirmed the superior court. See State v. Salgado-Mendoza, 194 Wn. App.

234,238,373 P.3d 357,review granted, 186 Wn.2d 1017,383 P.3d 1028(2016). The

Court ofAppeals held that(1)the prosecutor's failure to "obtain the name ofits witness

in a timely manner" violated discovery rules and constituted governmental

mismanagement, (2) this misconduct prejudiced Salgado-Mendoza, and (3)

suppression ofthe toxicologist's testimony was the proper remedy. Id. at 243. Writing

in dissent. Judge Worswick argued that the trial court's denial of Salgado-Mendoza's

CrRLJ 8.3(b) motion did not constitute an abuse of discretion. Because Salgado-

Mendoza's"bald assertion that he would have preferred to request a continuance"rather

than proceed to trial unprepared was insufficient to meet the evidentiary burden of

actual prejudice required for relief under CrRLJ 8.3(b), id. at 260 (Worswick, J.

dissenting), it was not"manifestly unreasonable" for the district court to deny Salgado-




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State V. Salgado-Mendoza (Ascencion), 93293-0



Mendoza's motion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122

Wn.2d 299,339,858 P.2d 1054(1993). We granted review.^

                              STANDARD OF REVIEW


      We review a trial court's ruling on a CrRLJ 8.3(b) motion under the

deferential abuse ofdiscretion standard. See, e.g.. State v. Michielli, 132 Wn.2d 229,

240, 937 P.2d 587 (1997). A court abuses its discretion when an '"order is

manifestly unreasonable or based on untenable grounds.'" In re Pers. Restraint of

Rhome, 172 Wn,2d 654, 668, 260 P.3d 874 (2011) (internal quotation marks

omitted) (quoting State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009)). A

discretionary decision is "'manifestly unreasonable'" or "'based on untenable

grounds'" if it results from applying the wrong legal standard or is unsupported by

the record. Id. (internal quotation marks omitted) (quoting Rafay, 167 Wn.2d at

655). A reviewing court may not find abuse of discretion simply because it would

have decided the case differently—it must be convinced that'"«o reasonable person

would take the view adopted by the trial court.'" State v. Perez-Cervantes, 141

Wn.2d 468,475,6 P.3d 1160(2000)(quoting State v. Huelett, 92 Wn.2d 967, 969,

603 P.2d 1258 (1979)).




      ^ Because the question on appeal is limited to relief under CrRLJ 8.3(b), this case
will be remanded for a new trial regardless of our holding.
State V. Salgado-Mendoza (Ascencion), 93293-0



                                       ANALYSIS


       Under CrRLJ 8.3(b), the party seeking relief bears the burden of showing both

misconduct and actual prejudice. In this case, Salgado-Mendoza can demonstrate

misconduct within the meaniag of the rule, but not actual prejudice. He can prove

misconduct because a discoveiy violation need not be willful—simple mismanagement

will suffice. Here, the State's failure to at least narrow the list of possible toxicology

witnesses pretrial reflects mismanagement. However, Salgado-Mendoza cannot show

prejudice that wan'ants complete suppression of the toxicologist's testimony. As the

trial court recognized, Salgado-Mendoza's counsel had ample time to prepare to

examme each potential witness, given that discovery about their anticipated testimony

and their professional backgrounds was timely provided."^ Furthermore, while State

toxicologists are not exactly fungible witnesses, their substantive testimonies would

likely be similar. Under these circumstances, it was not manifestly unreasonable for

the trial court to deny Salgado-Mendoza's CrRLJ 8.3(b) motion.




        The front page of the toxicology lab's website contams Imks to curriculum vitae
ofeach state toxicologist, detailing the specialties and education of each potential witness.
See WASH. STATE PATROL FORENSIC LAB. Servs., Toxicology Laboratory Division:
Public Records Index (last visited June 23, 2017), http://www.wsp.wa.gov/forensics/
toxlabindex.php [https://perma.cc/NCM3-YFQT](see entries under "Curriculum Vitae").

                                            -7-
State V. Salgado-Mendoza (Ascencion), 93293-0



       A.      Discovery Sanctions and Obligations in Washington

       If a party fails to comply with the rules of discoveiy, trial courts have broad

authority to compel disclosure,impose sanctions,or both. See, e.g..State v. Hutchinson,

135 Wn.2d 863, 882-83, 959 P.2d 1061 (1998)(regulation of discovery is left to the

"sound discretion" of trial courts). The rule at issue in this case, CrRLJ 8.3(b),

authorizes the court to dismiss a criminal action if the State violates its discoveiy

obligations. These obligations are found in CrRLJ 4.7(a), which governs discovery in

criminal cases in courts of limited jurisdiction. The rule sets out, in relevant part, the

prosecutor's obligation to disclose the identities of witnesses. See CrRLJ 4.7(a)(1).

This rule is complemented by the prosecutor's continuing obligations under CrRLJ

4.7(d). Even if the State fails to live up to its discoveiy obligations, however, relief

under CrRLJ 8.3(b) is available only if the trial court finds prejudicial governmental

misconduct or arbitraiy action.

      The use of CrRLJ 8.3(b) to punish a discovery violation is limited because the

rule expressly contemplates dismissal,the most severe sanction available to trial courts.

CrRLJ 8.3(b) states:

      The court, in the furtherance ofjustice after notice and hearing, may dismiss any
      criminal prosecution due to arbitrary action or governmental misconduct when
      there has been prejudice to the rights ofthe accused which materially affect the
      accused's right to a fair trial. The court shall set forth its reasons in a written
      order.




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State V. Salgado-Mendoza (Ascencion), 93293-0



As relevant to this case, a trial court may grant a motion for relief under CrRLJ 8.3(b)

only in the event of(1) governmental misconduct that (2) "materially affect[s] the

accused's right to a fair trial."^ Id. Violation ofthe State's discovery obligations can

support a finding ofgovernmental misconduct. See State v. Brooks, 149 Wn.App 373,

375,203 P.3d 397(2009).

       CrRLJ 4.7(a)(1) sets out the State's obligations under the rules of discoveiy for

courts of limited jurisdiction. In relevant part, CrRLJ 4.7(a)(1) states that the

"prosecuting authority shall, upon written demand, disclose"

             (i) the names and addresses of persons whom the prosecuting
       authority intends to call as witnesses at the hearing or trial, together with any
       written or recorded statements and the substance of any oral statements of
       such witnesses;

             (vii) any expert witnesses whom the prosecuting authority will call at
      the hearing or trial, the subject oftheir testimony, and any reports relating to
      the subject of their testimony that they have submitted to the prosecuting
       authority;

This disclosure obligation is limited to information within the "possession [and]

control" ofthe prosecutor. CrRLJ 4.7(a)(1),(4). As the Court ofAppeals recognized,

there is some question as to whether the prosecutor "controls" the toxicology lab even




      ^ These requirements limit judicial discretion in the CrRLJ 8.3(b) context, consistent
with CrRLJ 4.7(g)(7)(ii)(authorizing dismissal for prosecutorial discovery violations only if
willful or grossly negligent).


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State V. Salgado-Mendoza (Ascencion), 93293-0



though both are state entities. See Salgado-Mendoza, 194 Wn. App. at 245 & n.7

(discussing alternate views).

      Regardless of whether the state prosecutor "controls" the state toxicology lab,

discovery rules require the prosecutor to obtain disclosure ofdiscoverable information

m the possession of others. CrRLJ 4.7(d) states:

      Upon defendant's request and designation of material or information in the
      knowledge, possession or control of other persons which would be
      discoverable if in the knowledge, possession or control of the prosecuting
      authority, the prosecuting authority shall attempt to cause such material or
      information to be made available to the defendant. If the prosecuting
      authority's efforts are unsuccessful and ifsuch material or persons are subject
      to the jurisdiction of the court, the court shall issue suitable subpoenas or
      orders to cause such material to be made available to the defendant.


CrRLJ 4.7(d) imposes a continuing obligation on the prosecutor to seek the disclosure

ofdiscoverable information not in his or her control,including the identity ofwitnesses.

If the State, despite its best efforts, is unable to obtain the information, it should so

notify the court. See, e.g.. State v. Blackwell, 120 Wn.2d 822, 832, 845 P.2d 1017

(1993) (prosecutor's unsuccessful efforts to obtain police personnel files, and

subsequent communication to inform the trial court, were reasonable).

      In this case, the Court of Appeals majority found that the prosecutor's late

disclosure "would not likely have justified dismissal ofthe case, but suppression was a

reasonable alternative to dismissal." Salgado-Mendoza, 194 Wn.App. at 251. Indeed,

the primary remedy sought by Salgado-Mendoza's motion was suppression, not



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State V. Salgado-Mendoza (Ascencion), 93293-0



dismissal. See VRP at 27(arguing for CrRLJ 8.3(b)suppression).® This is consistent

with the general approach to discovery violations, encouraging courts to impose the

least severe sanction that adequately addresses the prejudice. See, e.g.,State v. Wilson,

149 Wn.2d 1, 12,65 P.3d 657(2003)(suppression represents an "intermediate step,"

avoiding the "extraordinary remedy of dismissal"); see also State v. McReynolds, 104

Wn. App. 560, 579, 17 P.3d 608(2000)("Dismissal is notjustified when suppression

ofevidence will eliminate whatever prejudice is caused by the action or misconduct.").^

This court has previously interpreted CrRLJ 8.3(b) as authorizing suppression (as well

as lesser sanctions) at the discretion of the trial court. See City ofSeattle v. Holifield,

170 Wn.2d 230,239,240 P.3d 1162(2010)(noting that because dismissal under CrRLJ

8.3(b) is discretionary, "suppression presents an appropriate, less severe remedy than

dismissal under CrRLJ 8.3(b)"). Before the court may grant relief under CrRLJ 8.3(b),

however,it must find misconduct and actual prejudice.




       ® Salgado-Mendoza's counsel explained his support for suppression over outright
dismissal; "Yes,I would love for you [the court] to dismiss it. I know you're not going to
do that. But I would like you to send a message to the state patrol crime lab and say this
isn't okay anymore." VRP at 27.
       ^ Legal scholarship analyzing federal case law highlights similar themes ofjudicial
discretion and preference for the least severe sanction. See, e.g.. Discovery and Access to
Evidence,44 Geo.L-J. ANN.Rev.Crim.Proc.405,429-30(2015)("The district court has
broad discretion to sanction the govemment for failure to comply with discovery requests,
but the court should impose the least severe sanction that will accomplish prompt and full
compliance with its discovery order.").

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State V. Salgado-Mendoza (Ascencion), 93293-0



       The party seeking relief bears the burden to show misconduct by a

preponderance of the evidence. See, e.g., State v. Rohrich, 149 Wn.2d 647, 654, 71

P.3d 638(2003). However,the party does not need to prove bad faith on the part ofthe

prosecutor. See State v. Dailey,93 Wn.2d 454,457,610 P.2d 357(1980). As this court

noted in Dailey, the '"governmental misconduct' need not be of an evil or dishonest

nature; simple mismanagement is sufficient." Id.

       The movant also bears the burden of demonstrating prejudice. See, e.g.,

Michielli, 132 Wn.2d at 240. Our case law makes clear that a party cannot meet this

burden by generally alleging prejudice to his fair trial rights—a showing of actual

prejudice is required. See Rohrich, 149 Wn.2d at 649 (noting "dismissal under CrR

8.3(b)... requires a showing ofnot merely speculative prejudice but actualprejudice

to the defendant's right to a fair trial" (emphasis added)); see also City ofSeattle v.

Orwick, 113 Wn.2d 823,829,784 P.2d 161(1989)("'[Ajbsent demonstrable prejudice,

or substantial threat thereof, dismissal of the indictment is plainly inappropriate.'"

(quoting UnitedStates v. Morrison,449 U.S. 361,365,101 S. Ct. 665,66 L.Ed.2d 564

(1981))). Importantly, late disclosure of material facts can support a finding of actual

prejudice. See State v. Price,94 Wn.2d 810,814,620 P.2d 994(1980). In the dismissal

context, a defendant is prejudiced when delayed disclosure inteijects "new facts"




                                         -12-
State V. Salgado-Mendoza (Ascencion), 93293-0



shortly before litigation, forcing him to choose between his right to a speedy trial and

to be represented by an adequately prepared attorney. Id.

      B.     The Trial Court Did Not Abuse Its Discretion by Refusing To Suppress
             the Toxicologist's Testimony

      On appeal, the superior court held that the trial court abused its discretion by

denying Salgado-Mendoza's CrRLJ 8.3(b) motion. The Court of Appeals affirmed

based on two findings: first, that late disclosure of a witness's identity constitutes

governmental misconduct, and second, that the late disclosure prejudiced Salgado-

Mendoza's defense. See Salgado-Mendoza, 194 Wn. App. at 243. We agree that the

State's delayed disclosure likely constitutes misconduct under the rule. However,

Salgado-Mendoza's allegation of prejudice due to the mere fact of late disclosure,

without more, is inadequate to establish prejudice under CrRLJ 8.3(L). Because

Salgado-Mendoza has not demonstrated by a preponderance of the evidence how the

State's misconduct "materially" prejudiced his defense, we cannot conclude it was

"manifestly unreasonable" for the trial court to allow the toxicologist's testimony.

CrRLJ 8.3(b); Rhome, 172 Wn.2d at 668. Given the deference due to trial courts under

the abuse of discretion standard, we reverse the Court of Appeals.

      (1) The State's Disclosure Likely Constituted Governmental Misconduct

      On this record, Salgado-Mendoza likely meets his burden to show

"governmental misconduct." CrRLJ 8.3(b). The State did not disclose which


                                         -13-
State V. Salgado-Mendoza (Ascencion), 93293-0



toxicologist it intended to call until 9:00 a.m. on the day of trial. See VRP at 25;

CrRLJ 4.7(a)(l)(i) (requiring timely disclosure of "the names and addresses of

persons whom the prosecuting authority intends to call as witnesses"). Delayed

disclosure may support a finding of governmental misconduct. See Price,94 Wn.2d

at 814. Misconduct occurs when the prosecutor "inexcusably fails to act with due

diligence," resulting in material facts not being disclosed "until shortly before a

crucial stage in the litigation process." Id. As the State acknowledges, it did not

"intend[]" to call nine toxicologists as witnesses—it intended to call one. CrRLJ

4.7(a)(l)(i). By not disclosing the name of the witness it intended to call until the

day of trial, the State did not live up to its discovery obligations under CrRLJ 4.7.

      In opposition to Salgado-Mendoza's motion, the State argued its late

disclosure was not the product of misconduct. See VRP at 30. Rather, the delay

resulted from perennial staffing and resource shortages at the toxicology lab—^not

from any failure of due diligence on the part of the prosecutor. Id. The prosecutor

essentially argued that she could not disclose what she did not know, and had made

a sincere effort to obtain the requested information. Id.(noting multiple phone calls

to the toxicology lab). While we might be sympathetic to the prosecutor's situation,

these arguments seem to confuse the Price "due diligence" standard with the concept

of bad faith, which is not alleged here. See VRP at 25; Price, 94 Wn.2d at 814;




                                         -14-
State V. Salgado-Mendoza (Ascencion), 93293-0



Blackwell, 120 Wn.2d at 832(dismissal appropriate based on bad faith violations of

discovery rules, i.e., prosecutorial '"game playing'"). Compliance with discovery

obligations—"due diligence" under Price—^requires more than the absence of bad

faith. See 94 Wn.2d at 814; CrRLJ 4.7(d)(imposing ongoing disclosure obligations).

       The prosecutor has the continuing obligation to pursue the disclosure of

discoverable information. See CrRLJ 4.7(d). If these efforts prove unsuccessful,

discovery rules instruct her to so inform the court.^ Id. In this case, it is unclear

from the record whether the prosecutor communicated adequately with the court; it

was Salgado-Mendoza, not the prosecutor, who repeatedly brought the matter to the

court's attention. See CP at 12, 40. The prosecutor seemed to minimize the State's

obligations under CrRLJ 4.7(d), stating that "[t]he defendant was given the name as

soon as we had it and that's all we can do in terms of disclosure." VRP at 31. This

statement is incon'ect—^pursuing disclosure of information the prosecutor does not

have is literally the purpose of CrRLJ 4.7(d).




        ^ Blackwell is instructive. 120 Wn.2d 822. In that case,the State communicated to the
trial court that it had failed to obtain police records, and suggested the judge subpoena the
information. Id. at 827. On appeal, we found no mismanagement. Id. at 832. The Court of
Appeals majority's reading ofBlackwell, suggesting that a prosecutor's failure to take these
steps is mismanagement, appears overbroad. See Salgado-Mendoza, 194 Wn. App. at 246-
47. Nevertheless, on this record, we agree that Blackwell supports finding
mismanagement.


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State V. Salgado-Mendoza (Ascencion), 93293-0



       Ultimately,Salgado-Mendoza must prove neither bad faith nor a CrRLJ 4.7(d)

violation to demonstrate governmental misconduct. The standard, at least at this

stage ofthe CrRLJ 8.3(b) analysis, is considerably more lenient. Salgado-Mendoza

needs to show only "mismanagement"—^that the State, with no presumption of ill

will, belatedly disclosed material information. See, e.g., Dailey, 93 Wn.2d at 457

("'[G]ovemmental misconduct' need not be of an evil or dishonest nature; simple

mismanagement is sufficient."). Salgado-Mendoza has met that burden here. CrRLJ

4.7(a)(l)(i) obligated the State to disclose the name ofthe toxicologist it intended to

call; the State instead disclosed the names of nine potential witnesses. CP at 6. For

a full five months,the State made no attempt to narrow the list—despite the fact that

at least three potential witnesses were on maternity leave and would clearly be

unavailable at trial. See VRP at 30. Instead, no additional relevant disclosures were

made until, the afternoon before trial, the State narrowed the list to three names. Id.

at 21. The toxicology lab did not reveal the individual witness's name until the

morning of trial, the day he was to testify.^             Id. at 25.      This constitutes

mismanagement by the State, and the fact that the information was as much a




       ® We note with concern that the delayed disclosure in this case does not appear to
be an isolated incident. The record indicates that failing to identify a witness until just
before trial is standard operating procedure for the State toxicology lab. See, e.g., VRP at
30. With respect to initial disclosures, it appears the lab's policy has been to disclose the
names of all toxicologists on staff. See, e.g., Suppl. Br. of Resp't at 1.

                                            -16-
State V. Salgado-Mendoza (Ascencion), 93293-0



surprise to the prosecutor as it was to Salgado-Mendoza is hardly evidence to the

contrary.

      (2)Although Salgado-Mendoza Demonstrates Misconduct, There Was
         Insujficient Evidence ofPrejudice To Justify Suppression

      Relief under CrRLJ 8.3(b) requires the moving party to show both

mismanagement and prejudice.            Salgado-Mendoza, despite demonstrating

misconduct, does not show that the State's action sufficiently prejudiced his defense

to justify suppression of the toxicologist's testimony. At trial, Salgado-Mendoza

argued that reviewing material for each potential witness would obligate counsel to

"spend needless hours wasted," thus burdening the defense. VRP at 25. The trial

judge denied the motion, reasoning that the five months defense counsel had to

review each potential witness's materials mitigated the prejudice. The Court of

Appeals disagreed, finding that the "unfair burden" of investigating nine potential

witnesses is sufficient, without more,to establish prejudice. See Salgado-Mendoza,

194 Wn. App. at 249. Because this is not what CrRLJ 8.3(b)requires, we reverse.

      CrRLJ 8.3(b) requires that governmental misconduct "materially affect[ed]"

the defendant's right to a fair trial. Our case law typically refers to this as "actual

prejudice."   See, e.g., Rohrich, 149 Wn.2d at 649.           A defendant may be

impermissibly prejudiced if a late disclosure compels him to choose between his

right to a speedy trial and his right to be represented by adequately prepared


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State V. Salgado-Mendoza (Ascencion), 93293-0



counsel.^® See, e.g., Price, 94 Wn.2d at 814. However, because the party seeking

relief carries the burden of proof, Salgado-Mendoza must articulate how the late

disclosure materially prejudiced his defense. See, e.g., Rohrich, 149 Wn.2d at 649

(party must show "not merely speculative prejudice but actual prejudice"). He has

not done so here.


       At trial, Salgado-Mendoza's counsel argued that the prosecutor's disclosure

of nine names instead of one prejudiced the defense because preparing to cross-

examine multiple witnesses would have resulted in "needless hours wasted." VRP

at 25. Notably, counsel did not argue that he actually wasted them.^^ Id. This

argument seems to falsely equate the risk of prejudice with "actual prejudice" in the

CrRLJ 8.3(b) context. See, e.g., Rohrich, 149 Wn.2d at 649 (party must show "not

merely speculative prejudice but actual prejudice").



          The Court of Appeals majority and dissent disagree as to whether the "new facts"
test applies in this case. See Salgado-Mendoza, 194 Wn. App. at 249 n.l4. If so, Salgado-
Mendoza would have to establish actual prejudice by specifically showing that the
"interjection of'new facts'" due to the late disclosure compelled him to choose between
two constitutional rights. State v. Woods, 143 Wn.2d 561, 584, 23 P.3d 1046 (2001).
However, as the Court of Appeals majority points out, our case law developing the
heightened "new facts" standard deals with the extreme remedy of dismissal—not
suppression. See Salgado-Mendoza, 194 Wn. App. at 249 n.l4. We are not compelled to
resolve the question here because Salgado-Mendoza fails to demonstrate actual prejudice
regardless of whether the "new facts" test applies. See supra Section B.2.
         As the Court of Appeals dissent puts it, "[Cjounsel was not unable to prepare—
he wasjust unwilling to prepare for cross-examination." Salgado-Mendoza, 194 Wn.App.
at 262. Relatedly, counsel did not claim that the State's mismanagement had unreasonably
increased the time or money spent on Salgado-Mendoza's defense. See, e.g., VRP at 25.

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State V. Salgado-Mendoza (Ascencion), 93293-0



      Before this court, Salgado-Mendoza argues more convincingly that the late

disclosure resulted in a less effective cross-examination of the State's toxicologist

witness. See Supp, Br. of Resp't at 15-16. The district court judge addressed this

concem directly, asking counsel whether there was "anything specifically [he]

need[ed] to research" further before the toxicologist testified. VRP at 37. Counsel

reasonably pointed out the difficulty ofpredicting the impact ofthe disclosure delay

on a cross-examination that had not yet occurred. Id. ("I will do the best I can with

what I have. . . . [I]t really is going to depend ... on how far [the toxicologist's

testimony] goes."). Nevertheless, counsel never asserted he was unprepared for

cross-examination, nor did Salgado-Mendoza request a continuance. Id. On these

facts, the State's misconduct did not give rise to "actual prejudice" under CrRLJ

8.3(b).

      To be clear, there are circumstances in which it would be appropriate to infer

actual prejudice from delayed disclosures. For example, late disclosure of a key

witness presenting unique testimony—such as an investigating officer—is likely to

prejudice the defense. A state toxicologist presents a closer question.          We

acknowledge that toxicologists are not "'fungible'" witnesses as the district court

suggested—they have individual professional and educational backgrounds, making

them unique for purposes of impeachment and influencing the likely scope of their



                                        -19-
State V. Salgado-Mendoza (Ascencion), 93293-0



testimony.    CP at 69; Suppl. Br. ofResp't at 13. Yet the fact remains that any state

toxicologist called to testify in Salgado-Mendoza's case would give similar

substantive testimony: a description ofthe effects ofalcohol on the body,how blood-

alcohol is measured, and procedures for roadside sobriety testing, etc. Salgado-

Mendoza implicitly concedes this point, primarily arguing that toxicologists are

unique for purposes of impeachment. See CP at 41 (noting that each witness "has

his or her own background and story that might well provide fodder for cross-

examination"). The district court addressed this point explicitly, observing that on

topics such as lab procedures Salgado-Mendoza could ask any of the toxicologists

the same set of cross-examination questions.          See VRP at 22 (noting each

toxicologist would testify similarly because each would speak to the same "standard

operating procedure[s] for a toxicology lab").

      It is also important to recognize that prejudice can arise from actions other

than withholding discoverable information. Although the State did delay disclosure

in this case, its initial error was actually one ofoverdisclosure—listing nine potential

witnesses rather than the single toxicologist it intended to call. See CP at 6; CrRLJ

4.7(a)(l)(i). As anyone who has used an Internet search engine knows, receiving



          Presumably, many of these differences were known to Salgado-Mendoza's
attorney during the months leading up to trial—^the toxicology lab's website lists each
toxicologist's curriculum vitae. See WASH.STATE PATROL FORENSIC LAB.Serys.,supra.

                                         -20-
State V. Salgado-Mendoza (Ascencion), 93293-0



too much infonnation can be just as unenlightening as receiving nothing at all. The

district court, in denying Salgado-Mendoza's CrRLJ 8.3(b) motion, acknowledged

that the State's actions could give rise to prejudice—^but found that any such

prejudice was mitigated by the circumstance ofthe case.

      The district court's finding turned on its evaluation of the practical

consequences ofthe State's disclosure. The court found that the extra work required

was not "extraordinary" given the amount of time counsel had to prepare and the

fact that he was an experienced attorney, having litigated roughly 1,000 DUI trials.

VRP(5/9/13)at 35. Again,this conclusion is reasonable and supported by the record.

Researching the backgrounds ofnine potential witnesses rather than one is not trivial

and, on a sufficiently tight timeline, could be burdensome. On the other hand, in

this case counsel had a full five months to prepare following the State's initial

disclosure. Id.    During that time, counsel had access to publicly available

information detailing the toxicolegists' different educational and professional

histories. Furthermore, any of the witnesses would likely testify to a common core

oftopics—^blood alcohol content testing procedures, DUI field tests, etc.—allowing

counsel to prepare a common set of cross-examination questions. In this context,

the trial court reasonably determined that having to review additional materials




                                        -21-
State V. Salgado-Mendoza (Ascencion), 93293-0



relating to toxicologists who did not ultimately testify would not substantially

prejudice the defense.

       The trial court was in the best position to make a fair call. The trial court,

after considering mitigating factors such as counsel's expertise and extensive

preparation time, and the substantive similarity oftoxicologist testimony across DUI

trials, found that the burden caused by the State's delayed disclosure did not justify

suppression of the toxicologist's testimony.^^ Although another court might have

held differently, perhaps viewing the State's apparent disinterest in even narrowing

the list of toxicologists as a sufficiently egregious violation to support relief under

CrRLJ 8.3(b), disagreement in result is an insufficient basis on which to find an

abuse ofdiscretion. See, e.g., Perez-Cervantes, 141 Wn.2d at 475(reviewing courts

must be convinced that "'«o reasonable person would take the view adopted by the

trial court'"(quoting Huelett,92 Wn.2d at 969). Because the trial court's action was

not"manifestly unreasonable" under the circumstances ofthis case, we find no abuse

of discretion. See Wash. State Physicians, 122 Wn.2d at 339.




         Note that the district court's rejection of Salgado-Mendoza's motion to suppress
does not eliminate the possibility of lesser sanctions. For example, the court could
reasonably have ordered the State to pay a portion of Salgado-Mendoza's legal fees had
his counsel "wasted" time in preparing for multiple cross-examinations. See CrRLJ
4.7(g)(7)(i).

                                          -22-
State V. Salgado-Mendoza (Ascencion), 93293-0



                                 CONCLUSION


      While we acknowledge the State's mismanagement in failing to timely

disclose its testifying toxicologist, we agree with the district court that Salgado-

Mendoza has not demonstrated actual prejudice to justify suppression of the

toxicologist's testimony. Because there was no abuse of discretion, we reverse the

Court of Appeals,




                                       -23-
State V. Salgado-Mendoza (Ascencion), 93293-0




WE CONCUR:




                                                     d-




                                                QiA-Likj,




                                       -24-
State V. Salgado-Mendoza (Ascencion)




                                        No. 93293-0



       MADSEN,J.(dissenting)—I agree with the majority that the State's failure to

disclose the name ofthe toxicologist who would testify at Ascencion Salgado-Mendoza's

trial until the morning of trial was mismanagement sufficient to show governmental

misconduct under CrRLJ 8.3(b). By failing to disclose the name ofthis key witness until

the day he was set to testify, the State did not live up to its discovery obligations under

CrRLJ 4.7. I depart from the majority, however, because I would also find that Salgado-

Mendoza was prejudiced by this delayed disclosure. Forcing a defendant to bear the

burden of preparing to cross-examine a long list of witnesses when the State only intends

to call one is not how our system ofjustice operates. The State cannot cite funding

deficiencies and simply shift its burden of prosecution onto defense counsel. If the State

wishes to pursue prosecution, it must allocate sufficient resources to its departments so

that they may operate in a way that is consistent with a defendant's right to a fair trial.

By understaffing the State's toxicology laboratory so that they cannot confirm who will

testify until the day of trial, the State is not meeting this burden and defendants are being

forced to compensate for the deficiency. Therefore, I would find that the trial court

abused its discretion by denying Salgado-Mendoza's motion to suppress the
No. 93293-0
Madsen, J., dissenting


toxicologist's testimony. Because the majority instead affirms the trial court's finding

that there was no prejudice, I respectfully dissent.

       As the majority aptly explains, the discovery rules require a prosecutor to obtain

and disclose discoverable information in the possession of others. CrRLJ 4.7(d). If the

prosecutor is unable to obtain the information, he or she should notify the court, and the

court shall then issue subpoenas or orders to cause the information to be made available

to the defendant. Id. The names of persons the State intends to call as witnesses are

explicitly included in the discovery rules as information the prosecuting authority must

disclose. CrRLJ 4.7(a)(1). If the State fails to comply with the rules of discovery, the

defendant may seek relief under CrRLJ 8.3(b), which states:

       The court, in furtherance ofjustice after notice and hearing, may 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 right to a fair trial. The court shall set
       forth its reasons in a written order.

       To obtain dismissal under CrRLJ 8.3(b), a defendant must show arbitrary action or

governmental misconduct, but the governmental misconduct need not be of an evil or

dishonest nature; simple mismanagement is enough. State v. Dailey, 93 Wn.2d 454, 457,

610 P.2d 357(1980). Dismissal also requires a defendant show that the misconduct

prejudiced his or her right to a fair trial. State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d

587(1997). "Such prejudice includes the right to a speedy trial and the 'right to be

represented by counsel who has had sufficient opportunity to adequately prepare a
No. 93293-0
Madsen, J., dissenting


material part of his defense.'" Id.(quoting State v. Price, 94 Wn.2d 810, 814, 620 P.2d
994(1980)).

       In this case, Salgado-Mendoza has shown actual prejudice because the State's late

disclosure forced him to choose between his speedy trial right and proceeding to trial

with adequately prepared counsel. See U.S. CONST, amend. VI. Defense counsel made

clear in the trial court that he would have preferred to request a continuance after learning

the identity of the testifying toxicologist in order to be fully prepared for cross-

examination. But Salgado-Mendoza did not wish to waive his right to a speedy trial.

Verbatim Report ofProceedings(May 9, 2013)(VRP)at 36. Instead, Salgado-Mendoza

was forced to proceed with an attorney who was not prepared to effectively cross-

examine the State's toxicologist.

       One ofthe purposes of discovery rules is to afford an opportunity to prepare for

effective cross-examination. CrR 1.2 (Superior Court Criminal Rules are intended to

provide for thejust determination in every criminal proceedings, which includes

simplicity, fairness, effective justice, and elimination of unjustifiable expense and delay);

State V. Jones, 183 Wn.2d 327, 339, 352 P.3d 776(2015)(for defense counsel to be

effective, counsel must investigate the case, which includes interviewing witnesses); State

V. Yates, 111 Wn.2d 793, 797-98, 765 P.2d 291 (1988)(one goal of discovery is to

prevent surprises during testimony). Importantly, effective cross-examination is the goal.

As the majority suggests, Salgado-Mendoza's attorney could have prepared for a cross-

examination that probed into the general areas oftestimony common to most
No. 93293-0
Madsen, J., dissenting


toxicologists. But what makes a cross-examination truly effective is the ability to inquire

into the differences in education, experience, and knowledge that lay the foundation for

each toxicologist's unique understanding ofthose general areas.

       A prime example of defense counsel's lack of preparedness was his attempt to

question the testifying toxieologist about a 2009 study that allegedly criticized certain

tests regularly used by the State toxicology laboratory. VRP at 243. When questioned

about the study, the toxieologist informed counsel that he was not aware ofthe specific

study. The trial court then sustained the State's objection to the line of questioning

because the toxicologist's lack of familiarity with the study would prevent him from

providing "an intelligent educated answer." Id. at 243-44. Had the State provided

Salgado-Mendoza with the name ofthe testifying toxieologist prior to the morning of

trial, defense counsel could have interviewed the toxieologist, learned what studies he

was familiar with, and provided him a copy ofthe unfamiliar study so that they could

have a productive dialogue about it during cross-examination. Without that time for

preparation, defense counsel's attempt at using the study to defend his client simply fell

flat. Despite counsel's apparent experience representing people in driving under the

influence(DUI)trials generally, he was unable to prepare for this particular toxicologist's

testimony in the context of Salgado-Mendoza's specific case. Without waiving his

speedy trial right, Salgado-Mendoza was left with no choice but to proceed with

unprepared counsel because ofthe State's delayed disclosure.
No. 93293-0
Madsen, J., dissenting


       We have found prejudice in similar eireumstanees. In Michielli, we found that the

defendant had shown prejudice because the State had brought additional charges against

him three business days before trial. 132 Wn.2d at 244. In that situation, the defendant

was prejudiced because he was forced to waive his speedy trial right and ask for a

continuance to prepare for the surprise charges. Id. In this case, Salgado-Mendoza was

faced with similar circumstances. He too was faced with the difficult decision of whether

to waive his speedy trial right or proceed with unprepared counsel. While the defendant

in Michielli chose to waive speedy trial, Salgado-Mendoza chose to proceed with

unprepared counsel. That Salgado-Mendoza chose one of his rights to a fair trial rather

than the other does not distinguish this case from Michielli. The fact that he was faced

with the choice at all is enough to find prejudice. See, e.g.. State v. Brooks, 149 Wn.

App. 373, 387, 203 P.3d 397(2009)("The State cannot by its own unexeused conduct

force a defendant to choose between his speedy trial rights and his right to effective

counsel who has had the opportunity to adequately prepare a material part of his

defense."(citing Price, 94 Wn.2d at 814)).

       Further, there is no question that even if Salgado-Mendoza had requested a

continuance, the State would not have disclosed the name of the particular toxicologist

who would be testifying until the day of trial. This situation was not a one-time

occurrence unique to Salgado-Mendoza's trial. See VRP at 25-27, 30. There is a pattern

and practice of last minute disclosures as to which toxicologist will testify. If Salgado-

Mendoza had requested a continuance, he would have been forced to waive his speedy
No. 93293-0
Madsen, J., dissenting


trial right and later forced to yet again proceed with unprepared counsel because ofthe

State's persistent failure to meet its discovery obligations. Given the unenviable choice

between his rights to a fair trial that the State forced on Salgado-Mendoza by its delayed

disclosure, I would hold that the trial court abused its discretion by denying suppression.

       I also stress that the trial court erred in describing the toxicologist witnesses as

fungible. Although the majority states that the toxicologists are not fungible, its ruling

nonetheless minimizes the importance of their differences. There are 20 experts currently

listed on the toxicology lab's website. See WASH. State Patrol Forensic Lab.

Servs., Toxicology Laboratory Division: Public Records Index (last visited Aug. 3,

2017), http://www.wsp.wa.gOv/forensics/toxlabindex.php#vitae [https://perma.cc/NCM3-

YFQT]. The toxicologists vary greatly in education and expertise. This variation in

experience is critical because it provides the foundation for the unique understanding of

each toxicologist about the core topics relevant to DUI trials. This varied experience

determines which topics a toxicologist witness is comfortable exploring in depth and

which they lack an understanding of. The trial court minimized this varied experience by

narrowing in on the fact that each toxicologist would testify similarly because each would

testify to the same "standard operating procedure for a toxicology lab." VRP at 22. But

in a typical DUI trial, the toxicologist may testify about many things beyond just the

standard operating procedure for the simulator solution that is used as the reference check

during the breath test. Toxicologists may testify about alcohol pharmacokinetics, the

effects of alcohol, field sobriety tests, retrograde extrapolation, Widmark's formula
No. 93293-0
Madsen, J., dissenting


(calculating blood alcohol content), and other biological factors that impact breath test

results. The toxicologist's training and experience dietates his or her comfort level for

testifying about these other topics. For example, the toxicologist's testimony in the

present case illustrated how his unique experienee and understanding shaped what he

eould testify about. Compare VRP at 236 (familiar with standardized field sobriety

tests), and Til (familiar with horizontal gaze nystagmus), with VRP at 242(training on

field sobriety tests was done in an "academic setting" rather than on the roadside), and

257(responding that he would not "do a very good job" at explaining partition ratios

because he only has a general understanding ofthe concept). Expecting defense counsel

to prepare an effective eross-examination addressing the variations in toxicologist

education and experience for nine potential witnesses when only one will actually testify

is unreasonable.


       The majority asserts that Salgado-Mendoza's attorney could hsiVQ prepared a

cross-examination for all nine witnesses but chose not to; therefore, there was no actual
                                     )




prejudice because eounsel did not waste needless hours. Majority at 18. But we cannot

demand a criminal defendant go above and beyond to compensate for the State's

mismanagement of its expert witnesses. It is not the defendant's responsibility to waste

substantial time and resources preparing for additional witnesses that the State never

intends to call. If the State wants to eall a toxicologist to testify against a criminal

defendant, it needs to inform the defendant who that witness will be in aeeordance with
No. 93293-0
Madsen, J., dissenting


the rules of discovery. That is the State's burden, not one that we should so quickly push

onto the defendant.


       If we allow underfunding and congestion at the State's toxicology lab to excuse

fair trial rights, there will be no inducement for the State to remedy the problem. See

State V. Wake, 56 Wn. App. 472, 475, 783 P.2d 1131 (1989). The State prosecutes a high

volume of DUl trials every year. And it appears that the toxicology lab persistently does

not inform the prosecutor which toxicologist will be testifying until the morning of trial.

There is no justification for this kind oframpant disregard for discovery obligations

because it unfairly shifts the burden onto defendants to either waive their speedy trial

right or proceed will ill-prepared counsel. Ifthe State wishes to prosecute crimes, it must

put sufficient resources into that prosecution to ensure fairness to the individuals charged.

Criminal defendants should not have to bear the burden of the State's inadequate funding.

       Because the trial court failed to see the actual prejudice that the State's delayed

disclosure forced on Salgado-Mendoza, 1 would hold that it abused its discretion.

Accordingly, 1 respectfully dissent.
No. 93293-0
Madsen, J., dissenting
