Layman v. State

• Decision Date: 29 August 1960
• Docket Number: No. A12912,A12912
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: A. H. (Herb) LAYMAN, Thomas Clinton Layman, and Andrew H. Layman, Petitioners, v. STATE of Oklahoma, Respondent.

Page 444

355 P.2d 444

A. H. (Herb) LAYMAN, Thomas Clinton Layman, and Andrew H.

Layman, Petitioners, v. STATE of Oklahoma, Respondent.

No. A12912.

Court of Criminal Appeals of Oklahoma.

Aug. 29, 1960.

Rehearing Denied Sept. 21, 1960.

Syllabus by the Court.

1. It is fundamental that every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.

2. When an application for pretrial inspection of a technical report in possession of the State is made in a criminal case, the trial court has a broad judicial discretion to grant or refuse, and only when such discretion has been abused will relief by mandamus be granted in aid of appellate jurisdiction by the Court of Criminal Appeals.

3. In cases involving an intricate, specialized, report of a highly technical and scientific nature, supported by graphs, charts, pictures, an engineer's calculations, and computations couched in highly professional terminology, even-handed justice requires pretrial examination of such report where the same constitutes evidence of the matter charged. But this right does not permit unbridled inspection of the prosecutor's files; but only that matter which is in the nature of a highly technical report.

Original proceeding whereby petitioning defendants seek a writ of mandamus to compel the County Attorney and District Judge, Leslie Webb, to allow pretrial examination of certain Engineering reports. Writ granted.

J. A. Rinehart, El Reno, James Davidson, R. L. Davidson, Jr., Tulsa, for petitioners.

Mac Q. Williamson, Atty. Gen., Robert D. Simms, County Atty., Thomas D. Gresham and John M. Imel, Asst. Co. Attys., Tulsa, for respondent.

BRETT, Judge.

This is an original action by petition for writ of mandamus, in aid of appellate jurisdiction, brought by A. H. (Herb) Layman, Thomas Clinton Layman, and Andrew H. Layman, Jr., against Robert D. Simms, County Attorney of Tulsa County, Oklahoma, and Honorable Leslie Webb, judge of said District Court of said County. The petitioners are charged in the District Court by indictments numbers 18452, 18453, 18455, 18456, 18457, and 18458, for the despicable crimes of obtaining money from the State of Oklahoma by false pretenses, by means of certain alleged false and fraudulent, progressive, and final estimates, or claims, in payment for certain inferior materials and methods used and employed in construction of State Highway Projects #591(8), 591(10), and 591(20), commonly known as Tulsa, Oklahoma, 51st. Street Bypass.

In said petition it is alleged, in substance, that although different sums of money, different types of materials, and methods of construction are alleged in said indictments, the proof thereof by the State is dependent upon an investigation and report of James F. Curry, a professional engineer, of Muskogee, Oklahoma, who was employed by the State of Oklahoma to make numberous tests in 1959, some two years after the final approval and acceptance of the said construction by the Oklahoma State Highway Department, and the Federal Bureau of Roads. The inspection and investigation of engineer Curry was made in collaboration with the Oklahoma Testing Laboratory.

In co-operation, the engineer and the testing laboratory took numerous slabs from the road and sub-soil base specimens to determine thickness, plasticity index, and made other investigations and inspections of said highway job, unknown to the defendants. In addition to the foregoing, the parties conducting the inspections and examinations made a report supported by certain exhibits, such as, motion pictures, pictures, graphs, charts, computations, compilations, and conclusions, based upon said examination, and delivered the same to the County Attorney, Robert D. Simms. That all of the foregoing materials formed the very essence of the State's case before the Grand Jury, which returned said indictments against the defendant on March 15, 1960.

That the said report is highly technical, scientific, and beyond the present knowledge of defense counsel, and will place them at a great disadvantage in properly discharging their duty to provide an adequate cross examination and defense for all of said defendants unless pretrial inspection thereof is ordered. The matter providing a fair and impartial trial under the guarantee of Article II, Section 20 Oklahoma Constitution, requires that they be accorded the right of inspection of said report, pictures, and graphs, reflective of said investigation; for all of which they seek a writ of mandamus to make said matters available to them.

It is further alleged, in substance, that at the hearing on their motion to quash the indictments the defendants made application to District Judge Leslie Webb on April 19, 1960, before whom said indictments are pending, for a pretrial examination of the Curry Report; that Judge Webb ordered the production of said report for inspection by defendants, but later arbitrarily withdrew the said order, all of which is supported by the reporter's transcript of said proceedings. Hence, the complaining defendants filed their petition in this court for relief by Mandamus.

To the petition the State made response admitting, in substance, that it was in possession by its County Attorney, Robert D. Simms, of the report, pictures, graphs, etc., sought in the petition for writ of mandamus. The State further alleges that the by-pass itself is the essence of the case, and the manner in which it was constructed, as revealed by its examination and inspection, all of which is known to the defendants. The county attorney contends that the defendants seek an unbridled examination of their files for the purpose of conducting a fishing expedition into the State's evidence. That the defendants should make application to the District Court for the writ before coming to the Appellate Court is also contended. To this latter contention the defendants assert that this they have already done with prospect of success, but only to have the door closed in their faces by Judge Webb, and further application therein would be vain and fruitless. For this reason Judge Webb was made a party hereto.

We are of the opinion that under this record the matter is properly before this court, since the trial court has already held adversely on the relief sought, in the motion to quash, and the law does not require resort to repetitious, vain, procedure in order to satisfy the whims of sheer technicality. The truth is that the defendants have exhausted all the remedies available to them in the lower court by duces tecum and by petition, encountering denial therein. We are of the opinion that this court has jurisdiction to grant the relief sought.

'We reject the implication that the Criminal Court of Appeals of Oklahoma does not have supervisory powers over all criminal actions in every court from which any appeal may be perfected to this court, directly or through an intermediate court * * *. To hold otherwise would be a demonstration of negative reasoning where positive thinking is required. This court is supreme in all criminal appeals from state courts of this State, and has authority to issue the writs of habeas corpus and mandamus, and other writs, in proper cases. Tit. 20 O.S.1951 §§ 40 and 41. And as stated in 14 Am.Jur. p. 370: 'It is fundamental that every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.'' Inverarity v. Zumwalt, 97 Okl.Cr. 294, 262 P.2d 725, 730.

This is apparent since the relief herein sought is in aid of appellate jurisdiction. Therein lies the distinction in Ex parte McCullom, 90 Okl.Cr. 153, 212 P.2d 161, relied upon and quoted from by the respondent in the case at bar. The same is true of State ex rel. McDaniel v. Turner, 84 Okl.Cr. 247, 181 P.2d 296. These cases were not in aid of appellate jurisdiction, but in the nature of original actions.

The question presented under the facts in this case is whether the petitioners are entitled to the writ of mandamus for a pretrial inspection of the J. F. Curry report?

In State ex rel. Sadler v. Lackey, Okl.Cr., 319 P.2d 610, 611, we stated the following as a general proposition:

'The defendant in a criminal case has no absolute right of pre-trial inspection of * * * report in possession of the prosecutor merely because he believes it may be beneficial to him. The defendant has no inherent right to examination of the state's evidence in hope that something may turn up which would aid or supply clues for gathering evidence.'

In that opinion it was not our intention to make the prosecutor's files available for general fishing expeditions, or to recognize a blanket request of defendant that the prosecution be required to turn over to defense counsel all of its evidence. People v. Cooper, 3 Cal.Rptr. 148, 349 P.2d 964. Here they seek no such relief, but only the production of the technical 'Curry Report'. We have held:

'In the rarest instances, reports of investigation should be required to be produced at the trial for purpose of cross-examination, and then only to meet the demands of justice.'

State ex rel. Sadler v. Lackey, supra. Therein we also said:

'Demand for pretrial inspection must be determined by the facts of each case.'

The State concedes that 'the petitioners are entitled to an adequate opportunity at the time of trial to examine State's evidence', but they assert that they are not entitled to pretrial inspection. Palermo v. United States, 1959, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed. 1287; United States v. Kelly, 10 Cir., 1959, 269 F.2d 448, certiorari denied 362 U.S. 904, 80 S.Ct. 615, 4 L.Ed.2d 555; Walker v. State, 1959, 215 Ga. 128, 109 S.E.2d 748; Rosier v. People, 1952, 126 Colo. 82, 247 P.2d 448. The foregoing cases support this contention. They do not, however, involve documentary inspection of a highly technical report of...