State v. Flood, 19309

• Citation: 184 S.E.2d 549,257 S.C. 141
• Decision Date: 03 November 1971
• Docket Number: No. 19309,19309
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. William A. FLOOD, Appellant.

Page 549

184 S.E.2d 549

257 S.C. 141

The STATE, Respondent, v. William A. FLOOD, Appellant.

No. 19309.

Supreme Court of South Carolina.

Nov. 3, 1971.

Jack F. McGuinn and Patrick E. Treacy, Columbia, for appellant.

Sol. John W. Foard, Jr., Columbia, for respondent.

LITTLEJOHN, Justice:

The defendant, William A. Flood, was tried in the Court of General Sessions for Richland County on December 15 [257 S.C. 143] and 16, 1970, and convicted of violating Section 32--1492.1 of the 1962 Code, making it unlawful to possess and sell marihuana. He has appealed the conviction and sentence to this court.

The code section involved reads in part as follows:

's 32--1492.1. Unlawful sale of certain drugs; penalties; presumption from possession.--It shall be unlawful for any person to sell, offer for sale or possess for sale any cocaine, alpha- or beta-eucaine, opium, morphine, heroin, isonipecaine, marihuana, LSD or other narcotics or drugs of like character or their compounds, except as authorized by law.'

The facts in the case are simple and not greatly, if at all, in dispute. The evidence shows that witness Gaines, an undercover agent, went to the home of the defendant on more than one occasion and sought to buy marihuana. Efforts to purchase were unsuccessful until November 10, 1970. On that date, in a grocery store parking lot, the defendant sold Gaines more than a pound of marihuana for $180. The defendand was arrested on November 14 and charged with possession and sale of marihuana. The defendant represented the product sold to be marihuana; Mr. Gaines testified that he recognized it as being marihuana; Lt. Clark of the Columbia police department testified that he field-tested it with a testing kit and determined that it was marihuana; Lt. Wilson of the South Carolina Law Enforcement Division conducted a laboratory test and determined that it was marihuana. The defendant did not testify. His wife was the only witness presented by the defense. Her testimony was that Mr. Gaines came to her house several times trying to buy marihuana and that the defendant did not sell it to him on those occasions.

On November 19 the defendant was notified of a preliminary hearing before the magistrate; the hearing was held November 23, at which time he was bound over for trial. On December 8 the defendant moved the trial court for discovery and a bill of particulars. He sought a complete inventory of all the State's physical evidence, inspection of such evidence by experts for the defendant, a copy of all laboratory rests and opinions of experts for the State, a list of the State's witnesses and a brief outline of their expected testimony. He also sought to take depositions of the State's witnesses. The motions were denied.

At the hearing on the motions, in the absence of the jury, the solicitor made his complete file available to defense counsel and gave the names of the State's witnesses. The solicitor stated that his policy of making his file available to defense counsel was well known among members of the bar. Apparently counsel for the defense had not taken advantage of such, and had not previously asked for a sample of the marihuana so that chemical tests could be made.

The motion made December 8 was heard on December 15. Counsel for the defense sought a continuance so that chemical tests could be made. The record of the hearing reveals that law enforcement officers, using a search warrant, searched the residence of the defendant on November 14 and found additional marihuana. A separate case has been made for this alleged offense but has not been tried. Lt. Wilson had made a chemical analysis of that marihuana found at the home of the defendant on November 14, but no analysis of that sold to Mr. Gaines on November 10. The judge permitted Lt. Wilson to proceed to make chemical analysis of that sold on November 10 and involved in this case. The judge also offered defense counsel samples such that they could have laboratory tests made, but defense counsel declined the offer.

The defendant first contends that there was a denial of due process and a denial of a fair trial because of the refusal of the judge to grant the discovery motions. It is argued that the constitutional rights of the accused were violated.

Under the terms of Section 43--231 and subsequent sections, an accused person is entitled to a preliminary hearing in order to be apprised of the nature of the State's evidence. There are no other statutes or rules of court in this state providing for discovery in criminal cases. Accordingly, the common law controls.

'At common law, the defendant in a criminal case had no right to pretrial discovery or inspection, and the courts were deemed powerless to compel disclosure of items of prosecution evidence to the accused. In the absence of statutes or rules of practice providing otherwise, it has been generally held that the accused is not entitled to inspection of evidence in the possession of the prosecution, although some courts at relatively early dates granted discovery in limited areas.' 23 Am.Jur. Depositions and Discovery § 307 (1965).

The contention that the defendant has a constitutional right to discovery is...