No. 8812SC561 | N.C. Ct. App. | Mar 21, 1989
Discovery having been voluntarily agreed to, defendant contends that the State’s failure to disclose the existence of the second fingerprint violated the discovery article and G.S. § 15A-910 required the court to sanction it by either suppressing the evidence or continuing the trial. The statute does not support the contention; the sanctions it authorizes are not mandatory, but permissive, optional and subject to the sound discretion of the judge. State v. McNicholas, 322 N.C. 548, 555, 369 S.E. 2d 569, 574 (1988). G.S. § 15A-910 provides as follows:
*238 If at any time during the course of the proceedings the court determines that a party has failed to comply with this Article or with an order issued pursuant to this Article, the court in addition to exercising its contempt powers may
(1) Order the party to permit the discovery or inspection, or
(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing evidence not disclosed, or
(3a) Declare a mistrial, or
(3b) Dismiss the charge, with or without prejudice, or
(4) Enter other appropriate orders.
Thus, even if the State’s failure to inform defendant about the second fingerprint did not comply with the discovery article —as it did not, since district attorneys participating in discovery, no less than other lawyers, are obliged to know what documentary evidence exists in their cases and to disclose it when ordered, and discovery voluntarily undertaken is deemed by G.S. § 15A-902(b) “to have been made under an order of the court” — the court’s refusal to either suppress the evidence or continue the trial was not necessarily error, as defendant argues. For the court did sanction the State in one of the ways authorized by the statute (by granting a recess and requiring the State’s witness to confer with defense counsel and to be interrogated under oath before he testified) and that way was neither inappropriate nor beyond the court’s discretion in our opinion. And since the first print was received into evidence without defendant having had it examined by an expert, it appears unlikely that he was prejudiced in any event by his inability to have the second print examined.
No error.