State v. Hodge

456 S.E.2d 855 (1995)

118 N.C. App. 655

STATE of North Carolina v. William Douglas HODGE.

No. 9410SC472.

Court of Appeals of North Carolina.

May 2, 1995.

*856 Atty. Gen. Michael F. Easley by Sp. Deputy Atty. Gen. James P. Erwin, Jr., Asheville, for State.

Gary L. Presnell, Raleigh, for defendant appellant.

McGEE, Judge.

Defendant first argues that the trial court erred in denying his motion for a mistrial "when the State failed to provide defense counsel with notice that a fingerprint analysis had been performed on an evidentiary item and failed to provide defendant with such fingerprint analysis." We disagree.

N.C.Gen.Stat. § 15A-910 (1988) governs the regulation of discovery in criminal cases and empowers the court to apply sanctions for noncompliance, including declaring a mistrial upon a party's failure to comply with this Article. G.S. 15A-910(3a). Although the court has the authority to impose such discovery violation sanctions, it is not required to do so. State v. Morrow, 31 N.C.App. 654, 658, 230 S.E.2d 568, 571 (1976), cert. denied, 297 N.C. 178, 254 S.E.2d 37 (1979), overruled on other grounds by *857 State v. Randolph, 312 N.C. 198, 321 S.E.2d 864 (1984). "The sanction for failure to make discovery when required is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion." State v. Herring, 322 N.C. 733, 747-48, 370 S.E.2d 363, 372 (1988).

Originally, defendant requested voluntary discovery and later moved for discovery pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The State disclosed, among other things, that a seized medicine bottle was within its possession, but did not disclose that a fingerprint analysis had been attempted on the bottle. Under Brady, we must examine the State's conduct to determine whether, after a request by the defense, the State suppressed material evidence which is favorable to defendant. State v. Gaines, 283 N.C. 33, 45, 194 S.E.2d 839, 847 (1973).

The evidence as presented at trial showed the State attempted to perform a fingerprint analysis of the medicine bottle but was unsuccessful because the condition of the bottle was such that no fingerprint comparisons could be made. Nothing could be matched to defendant or anyone else because the fingerprints were smudged and there were fingerprints over fingerprints. The existence or non-existence of defendant's fingerprints on the medicine bottle would have been significant, but in this case, a fingerprint analysis of the medicine bottle was not possible and no actual report was generated. Because no meaningful analysis could be conducted, there was no exculpatory evidence for the State to suppress. Therefore, defendant cannot show that the suppressed evidence was favorable to him.

The argument that defendant could have employed his own fingerprint expert to examine the bottle had defendant known of the State's analysis fails because defendant was notified of the existence of the bottle and was free to conduct his own tests independent from any tests attempted by the State. The defendant failed to meet his burden under the Brady analysis and we find the trial court did not abuse its discretion by denying defendant's motion for a mistrial.

In the alternative to a mistrial, defendant argues that the trial court erred by denying his motion for a continuance under G.S. 15A-910(2). Specifically, defendant contends that his due process rights of notice and the opportunity to be heard were violated because the State did not notify him of the allegedly exculpatory fingerprint evidence. Consequently, defendant believes he was deprived of closer evaluation of the fingerprint evidence because he could have subpoenaed the State's fingerprint examiner to testify or he could have located a defense expert to conduct an independent evaluation of the fingerprints. We disagree.

Defendant argues State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981) supports his position. In Silhan, it was only upon cross-examination of a local crime scene technician that defendant learned of the existence of a Federal Bureau of Investigation fingerprint analysis report. This report concluded that none of the prints could be identified as being those of defendant. Based on this new information, the judge offered to give defendant "as much of a recess as he needed to deal adequately with the report." Silhan at 240, 275 S.E.2d at 465.

Silhan is distinguishable because in that case there was an actual report generated by the Federal Bureau of Investigation and the test results from that report were more conclusive than in this case. Our Supreme Court in Silhan discussed "a report from the Federal Bureau of Investigation which summarized the results of an analysis of fingerprints taken from the scene of the assaults. None of the prints could be identified as being those of defendant." Id. The condition of the medicine bottle in the present case prevented any meaningful analysis whatsoever of the fingerprints. No comparisons could be made because the fingerprints were smudged and there were prints on top of prints. The trial court did not abuse its discretion in denying defendant's motion for a continuance.

No error.

LEWIS and WYNN, JJ., concur.