In re Wash. Cnty. Sheriff's Office

• Citation: 843 S.E.2d 720,271 N.C.App. 204
• Decision Date: 05 May 2020
• Docket Number: No. COA18-653,COA18-653
• Parties: IN RE: WASHINGTON COUNTY SHERIFF'S OFFICE
• Court: Court of Appeal of North Carolina (US)

271 N.C.App. 204

843 S.E.2d 720

IN RE: WASHINGTON COUNTY SHERIFF'S OFFICE

No. COA18-653

Court of Appeals of North Carolina.

Filed: May 5, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Jason P. Caccamo, for the State.

J. Michael McGuinness, Elizabethtown, for petitioner-appellant.

Megan Milliken for The Southern States Police Benevolent Association and The North Carolina Police Benevolent Association, amicus curiae.

MURPHY, Judge.

The District Attorney of Washington County ("the State") filed an Ex Parte Motion for In Camera Review in the Superior Court of Washington County "to determine whether or not [a criminal investigative file] contain[ed] potentially exculpatory information" involving Appellant "that the State would be required to disclose ... in cases [in which] the State intends to call [Appellant] as a witness." The State's motion was not filed in correlation with any ongoing trial or criminal prosecution, but for the purpose of determining whether the investigative file in question contained information the State would be required to disclose to potential criminal defendants in the future. The judge reviewed the file and ordered the District Attorney's Office to, "in any criminal matter wherein the State of North Carolina intends to call [Appellant] as a witness, disclose to the defendant and/or defendant's counsel the contents of" the investigative file.

On appeal, Appellant argues the judge erred in issuing the 20 February and 1 March 2018 ex parte orders because he was not provided notice and an opportunity to be heard. Appellant further contends that the judge erred in issuing the 1 March 2018 order because the judge (1) lacked subject matter jurisdiction to act on the State's ex parte motion for in camera review, (2) violated his procedural due process rights under the United States and North Carolina Constitutions, and (3) violated his rights to liberty and to enjoy the fruits of his labor under the North Carolina Constitution. The judge exceeded the limits of its jurisdiction by entering an advisory opinion, which is hereby vacated.

BACKGROUND

Washington County Sheriff's Office criminal investigative file OCA #2017-08-0026 concerned an investigation conducted in part by Appellant, a North Carolina law enforcement officer. The State filed an Ex Parte Motion for In Camera Review of Investigative Report and for Protective Order.

Appellant was identified in the State's motion as "a potential witness in criminal cases." The State further alleged that Appellant "may have mislead [sic ] and deceived a superior officer[,] ... [and] may have not been truthful and honest in the preparation of the investigative report related to his actions that may have mislead [sic ] and deceived a superior officer." Additionally, the State alleged that it had "a sufficient basis to believe that potential impeachment or exculpatory evidence exists within OCA #2017-08-0026."¹

The judge ordered the District Attorney's Office, consistent with the request contained in the motion, to submit copies of the criminal investigative file to the judge "to determine whether or not it contain[ed] potentially exculpatory information that the State would be required to disclose" in future cases. The file contained documented inconsistencies in Appellant's reports relating to the criminal investigation and his description of events to his superiors.

On 1 March 2018, following the in camera review, the judge entered an order with the following findings of fact:

2. That [Appellant] was an investigatin[g] officer in Washington County Sheriff's Office OCA #2017-08-0026[.]

...

5. The State has an affirmative ethical and constitutional obligation to disclose evidence favorable to a criminal defendant.... Counsel for the State is responsible for a failure to disclose exculpatory information in the possession of the police department, knowledge of which is imputed to the prosecutor.

The judge concluded as a matter of law that the information contained in the investigative file "contain[ed] potentially exculpatory information that the State would be required to disclose under Brady , Giglio [,] and/or Laurie , in cases involving [Appellant] as a witness." The judge also concluded as a matter of law that

8. The public policy concerns, and those of [Appellant], in protecting the confidentiality of this file is outweighed by the rights of criminal defendants in cases where [Appellant] is or may be a witness in accordance with Brady , Giglio [,] and Laurie material.

9. [T]here is a sufficient basis to believe that potential impeachment or exculpatory evidence exists within Washington County Sheriff's Office OCA #2017-08-0026[.]"

The judge ordered the State to "disclose to the defendant and/or defendant's counsel the contents" of the criminal investigative file "in any criminal matter" in which the State intends to call [Appellant] as a witness. The ordered disclosure was to be made "in compliance with the State's Constitutional responsibility to disclose potentially exculpatory information."

Per the terms of the order, the State notified Appellant of the order by a letter dated 1 March 2018. On 28 March 2018, Appellant noticed his appeal from the judge's 20 February and 1 March 2018 orders. Appellant also filed a motion requesting the production of documents considered by the judge in issuing said orders. The judge granted Appellant's motion "on the express condition that such documents shall remain confidential between [Appellant] and his counsel." However, the judge authorized Appellant to "use [the] disclosed records in connection with any litigation arising out of the disclosure of [the] records," including the appeal now before us.

ANALYSIS

In the context of Brady and Giglio disclosures, trial courts have the authority to require the government to disclose exculpatory and/or impeachment evidence. State v. Martinez , 212 N.C. App. 661, 666, 711 S.E.2d 787, 790-91 (2011) ; see also State v. Lynn , 157 N.C. App. 217, 224, 578 S.E.2d 628, 633 (2003). However, this matter is not a situation where the judge has issued an order requiring disclosure of exculpatory or impeachment evidence in a criminal matter over which the court is presently presiding. Instead, the judge's order here attempts to require disclosure "in any criminal matter wherein the State of North Carolina intends to call [Appellant] as a witness" in the future. There is a fine line between declaratory judgments, which trial courts have the statutory authority to enter, and advisory opinions, which go beyond a trial court's judicial authority. See, e.g. , Lide v. Mears , 231 N.C. 111, 117, 56 S.E.2d 404, 409 (1949) ("The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice."); Town of Tryon v. Duke Power Co. , 222 N.C. 200, 204, 22 S.E.2d 450, 453 (1942) (noting that it is not the function of the courts "to give a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise"). Here, the judge's order is purely advisory and therefore an improper exercise of its power. Duke Power Co. , 222 N.C. at 204, 22 S.E.2d at 453 (citing Ashwander v. Tenn. Valley Auth. , 297 U.S. 288, 324, 56 S.Ct. 466, 80 L. Ed. 688, 699 (1936).

The judge's order in this matter is an anticipatory judgment providing for the contingency that Appellant is to be called as a witness by the State in a future criminal case. The judge's order requires the State to, "in any criminal matter wherein the State of North Carolina intends to call [Appellant] as a witness, disclose to the defendant and/or defendant's counsel the contents of Washington County Sheriff's Office OCA #2017-08-0026 ... in compliance with the State's Constitutional responsibility to disclose potentially exculpatory information." Such an order is purely speculative and amounts to, using the language of our Supreme Court, "a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise." Duke Power Co. , 222 N.C. at 204, 22 S.E.2d at 453. Such an order exceeds the scope of the judge's power and must be vacated.

The advisory nature of the judge's order in this case is especially evident when we consider the alternative scenario in which it ruled the State is not required to disclose information contained in the investigative report in future cases. Would such a holding bind trial courts or District Attorneys from making independent Brady or Giglio determinations? Would future defendants be deprived of the opportunity to argue the exculpatory or impeachment value of the report? These questions are undoubtedly answered in the negative because in every criminal case, the prosecutor retains an "affirmative duty to disclose evidence favorable to a defendant[.]" Kyles v. Whitley , 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L. Ed. 2d 490, 505 (1995).

"The courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, ... deal with theoretical problems, give advisory opinions, ..., provide for contingencies which may hereafter arise, or give abstract opinions." Little v. Wachovia Bank & Tr. Co. , 252 N.C. 229, 243, 113 S.E.2d 689, 700 (1960) ; see also Wise v. Harrington Grove Cmty. Ass'n, Inc. , 357 N.C. 396, 408, 584 S.E.2d 731, 740 (2003) (holding that deciding an issue not "drawn into focus by [the court] proceedings" would "render an unnecessary advisory opinion"); In re Davis’ Custody , 248 N.C. 423, 426, 103 S.E.2d 503, 505 (1958) (holding that a trial court "rendered an advisory opinion that [a father] shall not be bound by any order of the Domestic Relations Court ... [regarding custody of two minors] ... from this date forward") (internal quotation marks omitted); State v. Herrin , 213 N.C. App. 68, 75, 711 S.E.2d 802, 808 (2011) (holding that a sentencing matter was not ripe for appellate review because it would arise, if at all, only if defendant was...