State v. Gulledge

• Decision Date: 18 March 1997
• Docket Number: No. 24621,24621
• Citation: 326 S.C. 220,487 S.E.2d 590
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Elaine C. GULLEDGE, Petitioner. . Heard

Page 590

487 S.E.2d 590

326 S.C. 220

The STATE, Respondent, v.Elaine C. GULLEDGE, Petitioner.

No. 24621.

Supreme Court of South Carolina.

Heard March 18, 1997.

Decided May 27, 1997.

Refiled June 23, 1997.

Michael E. Stegner, Camden; and South Carolina Office of Appellate Defense, Columbia, for petitioner.

Attorney GeneralCharles Molony Condon, Deputy Attorney GeneralJohn W. McIntosh, Assistant Deputy Attorney GeneralSalley W. Elliott, Senior Assistant Attorney GeneralWilliam E. Salter, III, Columbia; and Solicitor John R. Justice, Chester, for respondent.

ORDER

The original filed as Op.No. 24621 on May 27, 1997, is hereby withdrawn and the following substituted therefor.

/s/ Ernest A. Finney, Jr., C.J.

/s/ Jean H. Toal, J.

/s/ James E. Moore, J.

/s/ John H. Waller, Jr., J.

/s/ E.C. Burnett, III, J.

BURNETT, Justice.

This Court granted certiorari to review the Court of Appeals' opinion in State v. Gulledge, 321 S.C. 399, 468 S.E.2d 665(Ct.App.1996), which upheld petitioner's conviction and sentence.We affirm as modified.

FACTS

Petitioner pled guilty to breach of trust in an amount greater than $5,000.00.Following the preparation of a pre-sentence investigation report by the South Carolina Department of Probation, Pardon and Parole, the sentencing proceeding, including a restitution hearing, was conducted.At the hearing, the trial judge found the State had proven petitioner had embezzled $464,820.91 from Lancaster Motor Company(LMC).In determining the amount of restitution petitioner must pay, the trial judge considered the financial resources of petitioner and the victim and the burden the manner or method of restitution would impose upon the petitioner and victim; the ability of petitioner to pay restitution; the anticipated rehabilitative effect of restitution on petitioner; any burden or hardship upon the victim as a result of the criminal acts; and the mental, physical, and financial well being of the victim.SeeS.C.Code Ann. § 17-25-322(Supp.1996).The trial judge ordered petitioner to pay restitution in the amount of $210,000.00.Petitioner was sentenced to eight years confinement, suspended upon the service of three years, followed by five years' probation, and the payment of restitution at the rate of $3,500.00 a month or $42,000.00 a year for five years, with payment to begin upon her release from confinement.

Petitioner was employed by LMC as its head bookkeeper from 1986 to November 1991.Customers indebted to General Motors Acceptance Corporation(GMAC) under financing arrangements effected payment to GMAC by delivering cash payments on their account to LMC's cashiers.The cashiers executed a receipt in triplicate, with one copy given to the customer, one copy retained by LMC, and one copy sent to GMAC.At the end of each day, all cash and receipts were given to petitioner and she recorded the payments in LMC's cash receipts journal.Petitioner then wrote a check to GMAC from an LMC account in the amount of the receipts for that day.

In 1991, as a result of unexplained financial difficulties, Wilhelmenia McWhirter, an owner of LMC, enlisted the aid of accountants at Burns Chevrolet and agents of South Carolina Law Enforcement Division(SLED).It was discovered petitioner had written approximately $90,000.00 in checks from an LMC account directly to a number of her creditors to pay credit card bills and car payments.¹

This investigation also revealed discrepancies between the amount of the GMAC receipts for the day and the amount recorded in the cash receipts journal.These discrepancies occurred on a routine basis beginning shortly after petitioner was employed by LMC.Despite the fact that a lesser amount would be recorded in the journal, petitioner would write a check to GMAC in the amount reflected by the actual receipts for the day, with LMC absorbing the shortfall.²The total amount of the discrepancies from the GMAC account during the five year period was $347,486.00.Although these funds could not be traced to petitioner, evidence was presented at the restitution and sentencing hearing that she was the sole person in charge of the books and was the person responsible for totaling the GMAC receipts, entering this amount in the daily cash journal, and writing checks to GMAC.

ISSUES

I.Did the trial court and Court of Appeals err in holding the documents requested by petitioner under Rule 5(a)(1)(C), SCRCrimP, were not within the possession, custody or control of the State and were, therefore, not subject to discovery?

II.Did the Court of Appeals err in holding petitioner's argument regarding Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), was not preserved for review?

III.Did the trial court and Court of Appeals err in holding a handwritten summary was admissible in petitioner's restitution hearing even though the original documents were not available to her in court?

DISCUSSION

I.

Petitioner contends the Court of Appeals erred in upholding the trial court's denial of her motion pursuant to Rule 5(d)(2), SCRCrimP, to prohibit the prosecution from introducing during the restitution hearing the handwritten summary prepared by Mrs. McWhirter.Petitioner asserts the prosecution failed to fully comply with requests made by petitioner pursuant to Rule 5(a)(1)(C), SCRCrimP, for access to the LMC documents used to compile the handwritten summary.Specifically, petitioner argued she had requested the documents Mrs. McWhirter relied upon in compiling her handwritten summary, ³ and the solicitor failed to provide these documents.

In advance of the restitution hearing, the solicitor provided petitioner's counsel with a copy of the handwritten summary.However, the solicitor did not provide petitioner's counsel with either the documents LMC used to prepare the summary or with copies of these documents.The solicitor claimed the documentation was voluminous and it was unreasonable to expect the prosecution to introduce that amount of documentation or provide it to the defense.When contacted by petitioner's counsel about these documents, the solicitor suggested counsel call LMC's president and "work it out" with him.The solicitor informed counsel that LMC would be happy for him to come to LMC and they would provide any requested documentation.However, instead of taking this approach, counsel asked the solicitor for copies of monthly reports LMC was required to send General Motors, which again was claimed to be a voluminous amount of documentation.The solicitor again told counsel to contact LMC.Instead of arranging to inspect the books, counsel contacted LMC requested copies of selected documents and offered to pay for copying.LMC's president told counselhe could not copy this material overnight.Because of confusion over who was to contact whom, LMC's president and petitioner's counsel did not communicate again.At the restitution hearing, counsel claimed LMC did not afford him an opportunity to inspect and copy the documents on which the handwritten summary was based.

The trial judge found Rule 5(a)(1)(C) only requires the solicitor to provide the defense with documents which are in the possession, custody or control of the prosecution and are material to the defense.He found the solicitor did not have in his possession the documents petitioner sought and the solicitor had provided petitioner with all of the documentation he did have in his possession; therefore, he had complied with Rule 5.The Court of Appeals agreed with this interpretation of Rule 5(a)(1)(C).

Rule 5(a)(1)(C), SCRCrimP, states the following:

Upon request of the defendantthe prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the prosecution, and which are material to the preparation of the defense or are intended for use by the prosecution as evidence in chief at the trial, or were obtained from or belong to the defendant.

(emphasis added).

We agree with the interpretation of the emphasized language of Rule 5(a)(1)(C) made by the trial court and the Court of Appeals.The majority of state and federal courts who have interpreted similar rules in their jurisdictions, have held that the language means what it says: if the prosecution does not have the material or evidence sought by the defense actually in its possession, disclosure is not required.The only exception to actual possession is where the evidence is in the possession of another government agency.SeeJames W. Moore, 8 Moore's Federal Practicep 16.05 (2d ed.1995);Charles A. Wright, Federal Practice and Procedure§ 254(1982);23 Am.Jur.2d, Depositions and Discovery§ 421(1983);22A C.J.S., Criminal Law § 489(1989);Annotation, Books, Papers, and Documents Subject to Discovery by Defendant Under Rule 16 of Federal Rules of Criminal Procedure, 108 A.L.R.Fed. 380(1992);Annotation, Discovery and Inspection of Prosecution Evidence Under Federal Rule 16 of Criminal Procedure, 5 A.L.R.3d 819(1966).

The documents the defense sought in this case were in the possession of a private third party(LMC) and were not in the possession of the prosecution; therefore, petitioner's motion to suppress the written summary based on an alleged violation of Rule 5 was properly denied.

II.

Prior to the restitution hearing petitioner also filed a discovery motion pursuant to Brady v. Maryland.⁴Petitioner argues the failure of the prosecution to comply with this request and disclose the original documents used to compile the written summary, which petitioner contends were "potentially favorable," constituted a violation of her due process rights.The Court of Appeals found petitioner's Brady argument was not preserved for review because the trial court did not rule on the issue.Petitioner claims this ruling was error.We agree.

After the trial judge...