State v. Gillespie

• Decision Date: 31 October 1969
• Docket Number: No. 69--243,69--243
• Citation: 227 So.2d 550
• Parties: STATE of Florida, Petitioner, v. William Belmont GILLESPIE, Respondent.
• Court: Florida District Court of Appeals

Page 550

227 So.2d 550

STATE of Florida, Petitioner, v. William Belmont GILLESPIE, Respondent.

No. 69--243.

District Court of Appeal of Florida, Second District.

Oct. 31, 1969.

Joseph G. Spicola, Jr., State's Attorney, and John S. Burton, Asst. State's Atty., Tampa, for petitioner.

Peter J. T. Taylor, of Goldburg, Putney, Taylor & Hampton, Tampa, for respondent.

McNULTY, Judge.

The State of Florida petitions for common law certiorari to review an order of the trial court compelling a pre-trial In camera inspection of '* * * all records, files and evidence including Grand Jury testimony relative to the case of the State of Florida v. William Belmont Gillespie, * * *'. This case is pending under an indictment charging the defendant Gillespie with murder in the first degree. In entering the order under review the trial judge specifically found that he was required to make such In camera inspection on the authority of Williams v. Dutton. ¹

Respondent initially suggests that common law certiorari is inappropriate at this stage of the proceedings. We disagree. This court has consistently entertained certiorari in this type case when the order sought to be reviewed is shown to be, at least Prima facie, a substantial departure from the essential requirements of law, or when the state is at the peril of prejudice. ² We again do so now.

The motion of the respondent Gillespie, made in the criminal proceedings herein and upon which the trial judge entered the order under review, did not pray for an In camera inspection, but rather prayed, without a predicate or a showing of cause, for an order compelling the state to disclose or produce for inspection and copying by the respondent-defendant 'all evidence in the possession and control of the (s)tate * * * (which) * * * may be favorable to defendant * * * or (which) could reasonably weaken or affect any evidence proposed to be introduced against defendant, * * * without regard to whether such evidence * * * is * * * admissible at the trial * * *'. The motion then listed eleven non-specific items of 'evidence' which were to be included in the information sought to be disclosed. These items ran the entire gamut of investigatory weaponry from generally described items of purest work product of the prosecution (E.g., unidentified 'memoranda or summaries' which were or may have been prepared or used by investigating officers) to the judicial inquisitorial processes of the Grand Jury investigation. The trial judge did not grant the relief prayed for in the motion but instead, as noted, ordered a blanket, allencompassing In camera inspection believing it to be compelled by Williams v. Dutton, Supra.

Ever since Brady v. Maryland, ³ and through the cases which followed, ⁴ the problems inherent in pre-trial discovery in criminal cases have been made apparent with accelerating frequency; and there has been we sense, considerable resulting confusion. We think this case affords an opportunity to review the entire picture of such discovery in some depth, and to bring some of the areas of confusion into clearer focus within their proper perspective.

At the outset, we observe that pre-trial discovery in criminal cases in its broad sense is one thing, and the extent to wich the prosecution may be compelled to cooperate therein is quite another. In this era of enlightened jurisprudence, the overall concept of discovery has generally been met with approval, ⁵ but the aspect of compelled prosecution cooperation has furnished the arena for respected differences of opinion and for much of the apparent confusion. Accordingly, it is this latter aspect of pre-trial discovery to which we will essentially address our concern herein; that is to say, the extent to which the prosecution may be compelled to cooperate in the pre-trial discovery efforts of a defendant in a criminal case.

I

A.

In the first place we observe that neither Brady nor any other authority cited or known to this court, has suggested that the adversary nature of criminal proceedings has been abrogated. The adversary system is still the core of our Anglo-American concept of the truth-finding process; ⁶ and constitutional concern demands only that such process be fair. We find, therefore, that the underlying principle supporting the whole idea of criminal pre-trial discovery, as gleaned from the cases ⁷ and well-reasoned commentaries, ⁸ is Fairness. But no intelligent concept of fairness has ever been advanced which would require one side of a judicial controversy to prepare the case for his adversary, or to furnish such adversary with evidence favorable to him when such evidence is otherwise reasonably available; and the unique aspects of the criminal law do not require that such a concept should be any more appropriate in a criminal case than in any other.

Furthermore, none of the cases as we read them is authority for claiming a Constitutional right to Pre-trial discovery of evidence in the hands of the prosecution. ⁹ They merely hold, and we would agree, that denial of Timely discovery from the prosecution of otherwise unascertainable evidence favorable to the accused, May affect the fairness of the trial itself to such a degree that one convicted at such trial would be denied due process. But it must be remembered that it is After the trial that the proceedings are scrutinized and measured against the standards of fairness; and any infringement of a claimed right of an accused prior to trial, as far as the criminal proceedings are concerned, is merely in the nature of an 'inchoate' injury which does not ripen into a fatal departure from constitutional safeguards until it leads, or materially contributes, to a conviction at trial. The situation is akin, it may be said, to one yelling 'Ouch!', before he's hurt. We reaffirm first then, that an accused has no constitutional right to pre-trial discovery.

B.

Secondly, we note that in all the cases from which pre-trial discovery has evolved, it appears that the prosecution took unfair advantage of the accused by either knowingly presenting false or illegally obtained evidence against him in some manner, and without disclosure thereof, or by unfairly suppressing exculpatory or favorable evidence. ¹⁰ Therefore, common to all these cases is the fact that the evidence in question was otherwise unavailable to the accused.

In Brady for instance, a murder case, the defendant had requested copies of all extra-judicial statements given to the prosecution by his codefendant. Several of such statements were in fact shown to him, but the prosecution withheld one of the codefendant's statements in which the codefendant admitted to the actual homicide. Brady did not, and could not, find out about this until after his conviction and sentence to death had been affirmed on appeal. In a post-conviction relief procedure, the Maryland Court of Appeals granted a new trial on the question of punishment only, and the United States Supreme Court affirmed saying:

'We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of prosecution * * *'.

It is thus patent in that case that a fatal unfairness resulted from the suppression itself when the defendant did all he could to avail himself of the evidence suppressed.

Another example is Williams v. Dutton, Supra, on which the trial court specifically relied in entering the order now under review. In that case we again find that the evidence sought from the prosecution was among that which was otherwise unavailable. The case had previously been through the state courts of Georgia, ¹¹ and after conviction the denial of a pre-trial motion for discovery was urged as error to the Supreme Court of that state. That court reaffirmed the rule in Georgia that a defendant was not entitled to pre-trial discovery since '(t)here is no statute or rule of procedure of force in (Georgia) which requires a solicitor general or other prosecuting officer to make his evidence, documentary or otherwise, available to the accused, or his counsel before trial * * *'. ¹² In reliance on Brady, supra, the Circuit Court of Appeals in a federal Habeas corpus proceeding, overruled the Georgia court (although not expressly on the question of Pre-trial discovery as we shall discuss later) and held that the evidence sought should at least (after conviction) be examined by the state court In camera to determine whether favorable evidence 'material either to guilt or punishment' Had been suppressed. If so, it was said, then Brady required a new trial on one or both of those issues found to have been compromised by such suppression. The point made here is that the evidence sought in Dutton was otherwise Unavailable to the accused.

We conclude from the foregoing therefore, that any mandate deducible from the federal decisions on the question of what the prosecution is required to disclose to an accused in a criminal case, concerns itself in the first instance only with those matters of which the accused cannot, by reasonable diligence, otherwise avail himself. Whatever effect such mandate may have had on the courts of Florida prior to the effective date of the Criminal Rules of Procedure ¹³ need not be considered here. But insofar as it would exert any discipline on our criminal proceedings since the adoption of those rules, we are talking about a very narrow class of cases; that is to say, our courts need only be now concerned with those cases in which the evidence sought to be discovered cannot otherwise be discovered under the rules. By taking copious and diligent advantage of these rules a defendant in a criminal case in Florida can now avail himself of everything reasonably relevant and material to the case save Grand Jury proceedings (which we will discuss later), and that class of evidence, contemplated...