Hubbard v. State, 5327
Decision Date | 27 October 1980 |
Docket Number | No. 5327,5327 |
Parties | James Edward HUBBARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, for appellant.
John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div. and John W. Renneisen, Asst. Atty. Gen., Crim. Div. (argued), for appellee.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
Appellant-defendant appeals from a judgment and sentence rendered after a jury found him guilty of the offense of armed robbery in violation of § 6-4-402, W.S.1977.
We affirm.
The narrow issue presented to us is worded by the appellant as follows:
"Whether the Trial Court abused its discretion by failing to order delivery to it for inspection evidence in possession of the State that could exculpate Defendant by affecting the credibility of the State's witnesses."
Appellant has no general constitutional right to discovery. Such right must result from a statute, rule or trial court discretion. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Coca v. State, Wyo., 423 P.2d 382 (1967); Dodge v. State, Wyo., 562 P.2d 303 (1977); Fitzgerald v. State, Wyo., 601 P.2d 1015 (1979). The only statutory or rule provisions pertinent to appellant's contention are the following:
"(4) The term 'statement' as used in subdivisions (1) and (2) and (3) of this rule relating to any witness called by the state, means: (a) a written statement made by said witness and signed or otherwise adopted or approved by him; or (b) a stenographic, mechanical, electrical or other recording or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the state and recorded contemporaneously with the making of such oral statement." Rule 18, W.R.Cr.P.
Before trial, by means of a request for a bill of particulars and through motions to produce, appellant attempted to obtain copies of police and investigate reports which he contended contained possible impeaching or conflicting statements made by the State's witnesses for use in exculpating appellant.
Inasmuch as these efforts were made before the witnesses testified and not after the witnesses had been called by the State as required by Rule 18(c)(1), they were untimely and error cannot be predicated upon refusal to order production of the reports pursuant to such rule. United States v. Harris, 5th Cir. 1972, 458 F.2d 670. Beyond that, appellant made no request for an in camera inspection of such reports and material. He does not refer us to any authority which requires a trial court to order such inspection sua sponte. Accordingly, appellant cannot now, on appeal, accuse the trial court of an abuse of discretion which was not exercised one way or the other. An exercise of discretion involves deliberate judgment. Application of Frazzita, 147 N.Y.S.2d 11 (1955); Stewart v. Stewart, 28 Ind.App. 378, 62 N.E. 1023 (1902).
Appellant's only effort to obtain such reports and materials made after the receipt of testimony occurred during the direct examination of Sheriff Redden. Sheriff Redden was involved in the investigation of the armed robbery. Appellant called him as a witness in his case in chief. After inquiry concerning interviews with prosecution witnesses, Sheriff Redden was asked if copies of his reports had been furnished to the witnesses. Redden stated:
1
Appellant's motions to inspect such reports were overruled. There is nothing in the record to reflect that the police and investigative reports contain "statements" as such are defined in Rule 18(c)(4) 2 or that they were other than the...
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