State v. Davis

• Decision Date: 11 October 1972
• Docket Number: No. 33,33
• Citation: 191 S.E.2d 664,282 N.C. 107
• Parties: STATE of North Carolina v. Arthur Layton DAVIS.
• Court: North Carolina Supreme Court

Page 664

191 S.E.2d 664

282 N.C. 107

STATE of North Carolina v. Arthur Layton DAVIS.

No. 33.

Supreme Court of North Carolina.

Oct. 11, 1972.

Atty. Gen. Robert Morgan and Asst. Attys. Gen. William W. Melvin and William B. Ray for the State.

Neill Fleishman, Asst. Public Defender, for defendant appellant.

MOORE, Justice.

On 4 February 1971 defendant's counsel made a 'Motion for Discovery,' requesting that he be furnished all statements made by the prosecuting witness, the reports of the investigating officers in the case, all physical evidence obtained by these officers, any and all medical evidence and statements by physicians who may have examined the prosecuting witness, the names and addresses of all the State's witnesses and written summaries of their relevant testimony, and all other relevant information in possession of the sheriff's department or the solicitor's office. This motion was denied, and this constitutes defendant's first assignment of error.

The common law recognized no right to discovery in criminal cases. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. den. 377 U.S. 978, 84 S.Ct. 1884, 12 L.Ed.2d 747 (1964). Subsequent to the decision in Goldberg, Chapter 1064, Session Laws of 1967, now codified as G.S. § 15--155.4, was enacted. This statute provides that a pretrial order may require the solicitor, upon written demand, to produce for inspection and copy specifically identified exhibits to be used in the trial and to permit defense counsel to examine specific expert witnesses who may be called. The purpose is to enable a defendant to guard against surprise documents and surprise expert witnesses. State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972); State v. Macon, 276 N.C. 466, 173 S.E.2d 286 (1970). Defendant does not rely on G.S. § 15--155.4 and did not attempt to comply with the terms of that statute. Defendant contends that since he did not know what exhibits the State might introduce or what expert witnesses might be called, it was impossible for him to comply with the requirements of the statute, and that he was therefore deprived of his right to pretrial discovery. Defendant further contends that without pretrial discovery he has been denied his right to due process of law, equal protection of law, and his right to effective assistance of counsel, contrary to the Constitutions of the United States and of the State of North Carolina. In Goldberg, where the defendants also made a motion for broad discovery, Justice Parker (later Chief Justice) disposed of a similar contention:

'In our opinion, and we so hold, defendants here have not shown facts which would have warranted the trial court to enter an order in its discretion or as a matter of right allowing them to inspect the files of the State Bureau of Investigation in these criminal cases pending against them as prayed in their petition, and the denial of their petition does not violate any of their rights under Article I, sections 11 and 17 of the North Carolina Constitution, and under the Fifth, Sixth, Seventh, and Fourteenth Amendments to the United States Constitution.'

Accord, 23 Am.Jur.2d, Depositions and Discovery § 312 (1965).

In the present case only one exhibit, a piece of glass which was picked up in the kitchen by the prosecuting witness, was introduced. No expert witnesses were called or testified, and no statement of any witness was introduced. The defendant's motion requested practically the complete files of the sheriff's department and the solicitor's office pertaining to this case, and all the information obtained as the result of the investigation by the sheriff's department and the solicitor's office. 'We know of no consitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.' Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Defendant was not entitled to the granting of his motion for a fishing expedition nor to receive the work product of police or State investigators.

The record does not show that the prosecuting witness was examined by a physician or that any statements were obtained from a physician. The defendant for the first time in his brief asserts that during jury deliberation he heard that the prosecuting witness was taken to the doctor and the doctor's report showed that her sexual organ had not been abused and no sperm was found in her vagina. Defendant did not request the trial judge to reopen the case for further cross-examination of the prosecuting witness or for the offer of testimony from the physician, nor did he make a motion for a new trial on the ground of newly discovered evidence. Defendant now seeks to bring up on appeal a matter which was not before the trial court and which is not before this Court and cannot now be asserted. State v. Grundler and State v. Jelly, 251 N.C. 177, 111 S.E.2d 1, cert. den. 362 U.S. 917, 80 S.Ct. 670, 4 L.Ed.2d 738 (1959); State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971).

Defendant next contends that the court erred in denying his motion to quash the indictment on the ground that G.S. § 14--52 authorizing the death penalty or life imprisonment is violative of the cruel and unusual punishment prohibition of the Eighth Amendment to the United States Constitution. This issue was disposed of by this Court in State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971). In that case defendant was convicted of rape and first degree burglary with the recommendation of life imprisonment. The Court stated:

'. . . G.S. 14--21 provides for the death penalty for rape, and G.S. 14--52 provides for the death penalty for burglary in the first degree. Both statutes provide that the jury may recommend life imprisonment. . . . The punishment imposed in this case was life imprisonment. When punishment does not exceed the limits fixed by statute, it cannot be classified as cruel and unusual in a constitutional sense.'

The Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held that the imposition of the death penalty, under certain state statutes and in the application thereof, was unconstitutional. That decision did not affect the conviction but only the death sentence. State v. Westbrook, 281 N.C. 748, 191 S.E.2d 68 (1972); State v. Doss, 281 N.C. 751, 191 S.E.2d 70 (1972); State v. Chance, 281 N.C. 746, 191 S.E.2d 65 (1972); State v. Miller, 281 N.C. 740, 190 S.E.2d 841 (1972); State v. Hamby and Chandler, 281 N.S. 743, 191 S.E.2d 66 (1972). In this case the jury recommended life imprisonment and this was the judgment of the trial court. The defendant has cited no authority in support of his contention that life imprisonment is cruel and unusual in violation of constitutional prohibition, and research has revealed none. This assignment of error is without merit.

Defendant next assigns as error the court's denial of his motion for nonsuit under G.S. § 15--173 at the close of the State's evidence. G.S. § 15--173 precludes a defendant on appeal from raising the denial of a motion for nonsuit at the close of the State's evidence if defendant has introduced evidence in his own behalf. State v. Greene, 278 N.C. 649, 180 S.E.2d 789 (1971); State v. Prince, 270 N.C. 769, 154 S.E.2d 897 (1967). Defendant in this case testified in his own behalf and presented nine witnesses who testified for him. This assignment is without merit.

Defendant also contends that the court should have granted his motion for a directed verdict of not guilty at the close of all the evidence. G.S. § 15--173. Defendant does not challenge the sufficiency of the evidence to go to the jury. The basis for this motion is two variances between the indictment and the evidence offered during the trial. The indictment alleges that the defendant 'did unlawfully . . . break and enter the dwelling house of Nina Ruth Baker located at 840 Washington Drive, Fayetteville, North Carolina.' (Emphasis ours.) Miss Baker testified that she lived at 830 Washington Drive. There was no controversy as to the location of her residence, and the allegation that defendant 'did unlawfully . . . break and enter the dwelling house of Nina Ruth Baker in Fayetteville, North Carolina,' would have been sufficient.

The description of the house in this case was adequate to bring the indictment within the language of the statute. This house was also identified with sufficient particularity as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense. State v. Banks, 247 N.C. 745, 102 S.E.2d 245 (1958). As Chief Justice Parker stated in State v. Sellers, 273 N.C. 641, 161 S.E.2d 15 (1968), quoting with approval from State v. Burgess, 1 N.C.App. 142, 160 S.E.2d 105 (1968):

". . . The ownership of the personal property in this case is alleged to be in an individual and the premises described, among other things, as the dwelling house occupied by Dreame A. Glover. In the light of the growth in population and in the number of structures (domestic, business and governmental), the prosecuting officers of this State would be well advised to identify the subject premises by street address, highway address, rural road address or some clear description and designation to set the subject premises apart from like and other structures described in G.S. Chap. 14, Art. 14. Nevertheless, in this case we hold that the indictment sufficiently described and designated the premises. The defendant's motion in arrest of judgment on the first count is denied."

The State in this case attempted to follow this recommendation of Chief Justice Parker, but erred in stating the street number. We hold, however, that this inconsequential error in the street address appearing in the indictment does not render the indictment fatally defective.

Defendant further contends that the indictment is defective since it...