State v. Newell

Decision Date16 September 1986
Docket NumberNo. 8628SC259,8628SC259
Citation82 N.C.App. 707,348 S.E.2d 158
CourtNorth Carolina Court of Appeals
PartiesSTATE of North Carolina v. William K. NEWELL, III.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Lucien Capone, III, Raleigh, for State.

Roberts, Stevens & Cogburn, P.A. by Max O. Cogburn and Allan P. Root, Asheville, for defendant-appellant.

HEDRICK, Chief Judge.

Defendant first contends that the trial court erred to his prejudice in quashing subpoenas duces tecum issued by defendant upon the Eliada Home for Children for the production of all of its files and records relating to the victim and another witness, both of whom were residents of the Home.

There is no common law right of discovery in criminal cases, State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983), and there is no statute that grants a defendant in a criminal trial access as of right to any documents unless they are "within the possession, custody, or control of the State." G.S. 15A-903(d). This has been interpreted to mean "within the prosecutor's possession, custody or control." State v. Crews, 296 N.C. 607, 616, 252 S.E.2d 745, 752 (1979). Since the files and records in question here were not within the prosecutor's possession, custody, or control, they were not subject to discovery as of right.

However, documents not subject to the criminal discovery statute may still be subject to a subpoena duces tecum. The subpoena duces tecum is the process by which a court requires that particular documents or other items which are material to the inquiry be brought into court. It is issued by the clerk of court, and can be issued to any person who can be a witness. G.S. 7A-103(1); Vaughan v. Broadfoot, 267 N.C. 691, 149 S.E.2d 37 (1966).

The purpose of the subpoena duces tecum is to require the production of specific items patently material to the inquiry. Id. Therefore, it must specify with as much precision as fair and feasible the particular items desired. Id.

Discovery is not a proper purpose for a subpoena duces tecum; anything in the nature of a mere "fishing expedition" will not be allowed. Id. A party is not entitled to have brought in a mass of books and papers in order that he may search them through to gather evidence. Id. To hold otherwise would not only cause the subpoenaed person often to be unfairly burdened, but would also obligate him to produce a number of items not material to the inquiry, which is clearly not authorized by law.

A motion to quash a subpoena duces tecum is addressed to the sound discretion of the trial judge, and is not subject to review absent a showing of abuse of discretion. Id. In exercising that discretion, the trial judge should consider the relevancy and materiality of the items called for, the right of the subpoenaed person to withhold production on other grounds, such as privilege, and also the policy against "fishing expeditions." Id.

In the present case, the subpoenas called for all files and records relating to the victim and another witness. This is a very broad category, certain to include many items completely irrelevant to the inquiry. This may be acceptable in a motion for discovery, but it is inappropriate in a subpoena duces tecum. Furthermore, in examining the documents produced by the Eliada Home for in camera inspection, we found that only a tiny fraction of them are even arguably material to the inquiry, and that a good many of them are privileged under either G.S. 8-53 (physician-patient privilege), G.S. 8-53.3 (psychologist-client privilege), or G.S. 8-53.8 (counselor privilege). Under these circumstances, we cannot find that the trial judge abused his discretion in quashing the subpoenas duces tecum.

Defendant next contends that the trial court erred to his prejudice in sustaining objections to questions asked of Louise Ordway, a social worker at the Eliada Home for Children, relating to the reasons for the victim's commitment to the Home. However, defense counsel did not have Mrs. Ordway's answers to these questions placed in the record for appellate review. Where the record fails to show what the answers would have been had the witness been permitted to answer, the exclusion of such testimony cannot be held prejudicial, and thus is not reversible error. State v. Wilhite, 308 N.C. 798, 303 S.E.2d 788 (1983).

Defendant next contends that the trial court erred to his prejudice in denying defendant's post-trial motion for appropriate relief pursuant to G.S. 15A-1415. Defendant, in his motion, requested that defense be allowed to inspect the victim's juvenile court record. Defendant argues that something in her juvenile record may be relevant to impeach the testimony of Mrs. Ordway that the victim had, to her knowledge, "always be[en] truthful." As appropriate relief, defendant argues that he is entitled to a new trial in order to impeach Mrs. Ordway's testimony.

The statute which defendant claims gives him grounds for his motion is G.S. 15A-1415(b)(6), which provides that such a motion may be made on the ground that evidence is available which was unknown or unavailable to the defendant at the time of the trial, which could not with due diligence have been discovered or made available at that time, and which has a direct and material bearing upon the guilt or innocence of the defendant.

A motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial judge and is not subject to review absent a showing of an abuse of discretion. State v. Beaver, 291 N.C. 137, 229 S.E.2d 179 (1976). In order for a court to grant such a motion it must appear by affidavit that, among other things, "the new evidence does not merely tend to contradict, impeach, or discredit the testimony of a former witness." Id. at 143, 229 S.E.2d at 183. This requirement was clearly not met by defendant in the present case. We hold, therefore, that the trial judge did not abuse his discretion in denying defendant's motion.

Defendant next contends that the trial court erred to his prejudice in denying his motion to continue. The case had previously been mistried. Defendant claims that defense counsel did not have a chance to look at...

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9 cases
  • State v. Burr
    • United States
    • North Carolina Supreme Court
    • 8 September 1995
    ...as of right to any documents unless they are 'within the possession, custody, or control of the State.' " State v. Newell, 82 N.C.App. 707, 708, 348 S.E.2d 158, 160 (1986) (quoting N.C.G.S. § 15A-903(d)). In the present case, the documents at issue were not in the possession, custody, or co......
  • State v. Bartlett
    • United States
    • Arizona Supreme Court
    • 8 May 1992
    ...N.J.Super. 129, 430 A.2d 957 (1981) (defendant convicted of sexual assault of a 13-year-old; sentenced to 4 years); State v. Newell, 82 N.C.App. 707, 348 S.E.2d 158 (1986) (defendant convicted of taking indecent liberties with a consenting child between 13 and 16; sentenced to 3 years); Sta......
  • State v. Bartlett
    • United States
    • Arizona Supreme Court
    • 17 April 1990
    ...N.J.Super. 129, 430 A.2d 957 (1981) (defendant convicted of sexual assault of a 13-year old; sentenced to 4 years); State v. Newell, 82 N.C.App. 707, 348 S.E.2d 158 (1986) (defendant convicted of taking indecent liberties with a consenting child between 13 and 16; sentenced to 3 years); Sta......
  • State v. Hurt
    • United States
    • North Carolina Court of Appeals
    • 15 July 2014
    ...sound discretion of the trial court and is not subject to review absent a showing of an abuse of discretion.2State v. Newell, 82 N.C.App. 707, 709, 348 S.E.2d 158, 160 (1986). An abuse of discretion occurs only where a trial court's ruling was “manifestly unsupported by reason or [was] so a......
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