State v. Tatum

• Citation: 229 S.E.2d 562,291 N.C. 73
• Decision Date: 04 November 1976
• Docket Number: No. 4,4
• Parties: STATE of North Carolina v. Henry Aaron TATUM.
• Court: United States State Supreme Court of North Carolina

Page 562

229 S.E.2d 562

291 N.C. 73

STATE of North Carolina v. Henry Aaron TATUM.

No. 4.

Supreme Court of North Carolina.

Nov. 4, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Jack Cozort, Raleigh, for the State.

William M. Sheffield by John F. Hester, Durham, for defendant-appellant.

BRANCH, Justice.

Defendant assigns as error the trial judge's ruling on his pretrial motion for discovery.

Prior to the appointment of defendant's counsel the Durham Redevelopment Commission demolished the house on Scoggins Street in which the body of Howard Ellis was found. Defendant contends that, in light of this development, he should have been allowed to discover and inspect photographs taken at the scene, physical evidence taken thereform, and notes of police investigators pertaining to the house. An examination of defendant's motion for discovery reveals that these items fall within the following requests:

3. The original notes of the arresting officers.

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11. Any and all photographs or other evidence concerning or depicting the situs of the commission of the crimes alleged herein, ballistics tests arising therefrom, fingerprints therein taken, blood and other stains noted or tested, documents, papers (including checks), handcuffs, weapons, or any other tangible things which are evidentiary or which are relevant or material to the case for the defense or for the State.

There is no common-law right of discovery in criminal cases. State v. Davis, 282 N.C. 107, 191 S.E.2d 664; State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, Cert. denied, 377 U.S. 978, 84 S.Ct. 1884, 12 L.Ed.2d 747. The discovery statute in effect at the time of this trial was G.S. 15--155.4, which, in pertinent part, provided:

In all criminal cases before the superior court, the superior court judge . . . shall for good cause shown, direct the solicitor or other counsel for the state to produce for inspection, examination, copying and testing by the accused or his counsel any specifically identified exhibits to be used in the trial of the case . . ..

It should be noted initially that the District Attorney in this case indicated his willingness to provide defendant with 'all photographs intended to be introduced at trial' and Judge Braswell included such photographs in his order allowing discovery. Likewise, the discovery order directed the District Attorney to allow defendant to inspect those reports relating to physical evidence obtained at the scene of the crime, which the State intended to introduce at the trial. It is apparent that Judge Braswell's discovery order was fully in compliance with G.S. 15--155.4 with respect to the items listed in defendant's request number 11.

We turn to the question of whether the denial of defendant's request for discovery and inspection of 'the original notes of the arresting officers' was proper.

In his affidavit in support of his discovery motion, defendant argued that denial of this discovery request would be a violation of due process. This contention is based primarily on the case of Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, which holds 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 the prosecution.' See also, Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706. One of the minimum requirements of Materiality of evidence, in the context of discovery, is that the evidence sought might have affected the outcome of the trial. United States v. Agurs, --- U.S. ---, 96 S.Ct. 2392, 49 L.Ed.2d 342. Defendant explains his need for the police notes relating to the scene of the crime by stating that '(i)t may well be that knowledge of the scene would have enabled defense counsel to have more effectively cross-examined Blake so as to destroy his credibility with the jury.' We are not convinced that defendant has met the 'favorable character' and 'materiality' tests fashioned by Brady. Moreover, we believe that defendant's due process argument is overcome when measured by the rule set forth in Moore v. Illinois, supra, to wit: 'We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.' Accord: State v. Goldberg, supra.

Discovery under G.S. 15--155.4 is limited to exhibits which are 'specifically identified' and which are 'to be used in the trial of the case.' The notes taken by investigating police officers relating to the house on Scoggins Street were not exhibits to be used in the trial. See State v. Macon, 276 N.C. 466, 173 S.E.2d 286. Nor were these particular notes specifically identified as required by the statute. See State v. Peele, 281 N.C. 253, 188 S.E.2d 326. '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.' State v. Davis, supra. Thus, defendant had no right to inspect the notes of the investigating police officers under G.S. 15--155.4.

We note the current expression of public policy with respect to this type of discovery, contained in G.S. 15A--904. It is there stated that the present criminal discovery statute 'does not require the production of reports, memoranda, or other internal documents made by the solicitor, law-enforcement officers, or other persons acting on behalf of the State in connection with the investigation or prosecution of the case. . . .'

We do not attempt to discuss the remaining portions of defendant's sweeping and all-encompassing motion. Suffice it to say that the affidavit filed in support of the motion contained conclusory statements unsupported by any showing that the evidence sought by discovery was favorable to defendant or met the test of materiality.

Judge Braswell's ruling on defendant's motion for discovery was in compliance with constitutional and statutory requirements. We, therefore, overrule this assignment of error.

Defendant next assigns as error the denial of his pretrial motion that the State provide funds for the employment of a private investigator.

The narrow question presented by this assignment of error has not been decided by this Court. We, therefore, turn to other jurisdictions for guidance.

In United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549, the United States Supreme Court considered the question of whether an indigent was entitled to the appointment of an expert witness to assist in his defense. There, the court stated: 'We cannot say that the State has that duty by constitutional mandate.' However, the holding in this case clearly indicating that the Federal Constitution does not require that expert witnesses or investigators be supplied to indigent defendants in criminal cases at State expense, was soon beclouded by the now well-recognized holdings that all defendants in criminal cases shall enjoy the right to effective assistance of counsel and that the State must provide indigent defendants with the basic tools for an adequate trial defense or appeal. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400; State v. Cradle, 281 N.C. 198, 188 S.E.2d 296, Cert. denied, 409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed.2d 499.

Some jurisdictions interpret the cases guaranteeing effective assistance of counsel to require the State to furnish expert assistance to an indigant defendant at State expense. Greer v. Beto, 5 Cir., 379 F.2d 923; McCollum v. Bush, 5 Cir., 344 F.2d 672; United States ex rel. Robinson v. Pate, 7 Cir., 345 F.2d 691; People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645. On the other hand, other courts follow the holding of Baldi and adhere to the view that the Constitution creates no right in an indigent to demand that the State pay for expert assistance in his defense. Watson v. Patterson, 10 Cir., 358 F.2d 297, Cert. denied, 385 U.S. 876, 87 S.Ct. 153, 17 L.Ed.2d 103; Utsler v. Erickson, D.C., 315 F.Supp. 480, Cert. denied, 404 U.S. 956, 92 S.Ct. 319, 30 L.Ed.2d 272; Houghtaling v. Commonwealth, 209 Va. 309, 163 S.E.2d 560, Cert. denied, 394 U.S. 1021, 89 S.Ct. 1642, 23 L.Ed.2d 46; State v. Superior Court of Pima County, 2 Ariz.App. 458, 409 P.2d 742.

Our research does not reveal that the United States Supreme Court has reconsidered its decision in Baldi, and we adhere to the holding in that decision. However, we do not interpret Baldi to obviate the doctrine of 'fundamental fairness' guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution. United States ex rel. Robinson v. Pate, supra; State v. Taylor, 202 Kan. 202, 447 P.2d 806; People v. Watson, supra; Corbett v. Patterson, D.C., 272 F.Supp. 602.

We find the language in State v. Taylor, supra, particularly persuasive. There the Supreme Court of Kansas considered and rejected defendant's contention that he had been denied effective assistance of counsel because he was not provided with a fingerprint expert at the State's expense. In so deciding the court, in part, stated:

In the absence of statute the duty to provide such (expert witness) may arise and be exercised because of an inherent authority in courts to provide a fair and impartial trial as guaranteed by Section ten of the Kansas Bill of Rights and the due process clause of the United States constitution. . . .

. . . In the absence of statute a request for supporting services must depend upon the facts and circumstances of each case. Therefore it must rest in the sound discretion of the trial court. (Citations omitted.)

. . . Mere hope or desire to discover some shred of evidence when not coupled with a showing the same is reasonably available and necessary for a proper defense does not...