THE STATE v. LUCIOUS
S99A0099
Supreme Court of Georgia
June 14, 1999
Reconsideration Denied July 30, 1999
518 SE2d 677
HUNSTEIN, Justice.
Ellerbee, Robert K. Finnell, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Williams & Henry, Philip C. Henry, Johnson & Ward, William C. Lanham, Clark H. McGehee, Ashman, Lasky & Cooper, Jeffrey W. Lasky, Thomas W. Malone, Mark L. Stuckey, Reynolds & McArthur, W. Carl Reynolds, Savage, Herndon & Turner, Brent J. Savage, Stephens & Shuler, Charles W. Stephens, Gambrell & Stolz, Irwin W. Stolz, Jr., Walbert & Mathis, David F. Walbert, Wood & Grant, L. Lin Wood, Jr., amici curiae.
The State is seeking imposition of the death penalty against John R. Lucious for the murder of Mohammad A. Aftab in Clayton County. Lucious was indicted on charges of malice murder, two counts of felony murder, possession of a firearm during the commission of a felony, and misdemeanor possession of marijuana in connection with the alleged 1996 murder and armed robbery. During pretrial proceedings, the State refused to open its file except to the extent mandated by the Georgia and United States Constitutions because Lucious elected not to participate in Georgia‘s Criminal Procedure Discovery Act,
Pursuant to
1. Prior to passage of the Act, there was no comprehensive Georgia statute or rule of law which governed discovery in criminal cases.
provide[s] for the comprehensive regulation of discovery and inspection in criminal cases; . . . provide[s] for conditions, limitations, and procedures with respect thereto; . . . provide[s] for disclosure of evidence by the prosecution and defendants; . . . repeal[s] conflicting laws; and for other purposes.
Ga. L. 1994, pp. 1895-1896. The Act, which applies only to those cases in which the defendant elects by written notice to have it apply, broadens discovery in felony cases by imposing corresponding discovery obligations upon both the defendant and the State. For example, the Act requires the State and the defendant to disclose, inter alia, the identities and addresses of all persons they intend to call as witnesses at trial,
2. Although electing not to have the Act apply to his case, Lucious nevertheless filed several challenges to the constitutionality of the reciprocal discovery provisions of the Act which the trial court rejected. Finding no merit in Lucious’ constitutional arguments, we affirm that part of the trial court‘s order.
(a) Lucious contends the Act‘s discovery provisions violate his right to due process under the United States and Georgia Constitutions. See
[a]lthough the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, [cit.], it does speak to the balance of forces between the accused and his accuser. [Cit.] The Williams Court was therefore careful to note that “Florida law provides for liberal discovery by the defendant against the State, and [Florida‘s] notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant.” [Cit.] . . .
We do not suggest that the Due Process Clause of its own force requires [a state] to adopt [reciprocal discovery] provisions. [Cits.] But we do hold that in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street.
Wardius, supra, 412 U. S. at 474-475 (footnote and paragraph indentation omitted).
The Court in Wardius thus articulated a due process requirement of reciprocity in criminal discovery statutes in the absence of a strong state interest to the contrary. This same requirement has been held to apply under the due process clause of the Georgia Constitution. See Rower v. State, 264 Ga. 323 (5) (443 SE2d 839) (1994) (to satisfy due process, discovery practices in criminal cases must provide a balance of forces between the defendant and the State). Applying this due process standard to the Act, we find that the Act furthers legitimate State interests by establishing a closely symmetrical scheme of discovery in criminal cases that maximizes the presentation of reliable evidence, minimizes the risk that a judgment will be predicated on incomplete or misleading evidence, and fosters fairness and efficiency in criminal proceedings. Because the Act provides for reciprocal discovery in criminal felony cases with any imbalance favoring the defendant, the Act does not violate the due process clause of the United States or Georgia Constitutions. See Wardius, supra.
(b) Nor do the Act‘s discovery provisions violate Lucious‘s right to
3. Although not a question posed by this Court in granting the State‘s application, Lucious now argues that the Act‘s reciprocal discovery provisions violate his right to effective representation of counsel by denying him the benefit of defense counsel‘s judgment of whether and when to reveal aspects of his case to the State. See
4. Because there is no general constitutional right to discovery in a criminal case, Weatherford v. Bursey, 429 U. S. 545, 559 (97 SC 837, 51 LE2d 30) (1977); Bright v. State, 265 Ga. 265 (6) (455 SE2d 37) (1995), the election not to invoke the discovery provisions of the Act necessarily entitles a defendant to only that discovery specifically afforded by the Georgia and United States Constitutions, statutory exceptions to the Act, and non-conflicting rules of court. This panoply of discovery rights exists separately from the Act and provides abundant discovery opportunities for all criminal defendants, including death penalty defendants, who elect not to have the Act apply to their case. We therefore find that the trial court erred in granting Lucious those discovery rights identified below which are not guaranteed under the United States or Georgia Constitutions or other-
(a) Specifically, the trial court erred by holding that a defendant who chooses not to participate in the Act is entitled to discover all of the State‘s scientific reports. In a broadly-worded order the trial court directed the State to produce its Georgia Bureau of Investigation “Crime Lab reports and any and all other scientific reports.” A defendant‘s right to discover scientific reports is a procedural right derived from former
(b) For the same reasons, we find the trial court erred in holding that a defendant who chooses not to opt into the Act is entitled to discover all of the State‘s scientific work product. The trial court‘s order provides that the State must produce “any and all . . . memos, notes, graphs, computer print-outs, photographs, and other data that the State‘s experts will rely on to support their testimony during direct examination.” To the extent such information may be discoverable in felony criminal cases, its production is now governed by the Act and a defendant is entitled to this information only if he invokes the Act. Because the right to subpoena work product was derived from former
(c) The trial court also erred in holding that Lucious was entitled to the witness list provided by Uniform Superior Court Rule 30.3. Rule 30.3 provides that upon request of defense counsel, the State shall furnish the addresses and telephone numbers of trial witnesses known to the State. The Legislature intended, in enacting the Act, to amend the criminal discovery procedures and to provide certain criminal defendants the opportunity to discover information well in excess of that mandated by either the United States or Georgia Constitutions, including the opportunity to receive from the State a continuing list of trial witnesses and related information. See
Although Lucious did not choose to have the Act apply to his case and, therefore, is not entitled to a list of trial witnesses pursuant to Rule 30.3, Lucious remains entitled to a list of witnesses who appeared before the grand jury and upon whose testimony the charges against him are founded. See
5. Finally, we find the Act is inapplicable to presentence hearings. Discovery in presentence hearings in both capital or non-capital cases remains governed by
Judgment affirmed in part and reversed in part. All the Justices concur, except Benham, C. J., Fletcher, P. J., and Sears, J., who dissent.
BENHAM, Chief Justice, concurring in part and dissenting in part.
Although I agree with the majority opinion‘s statement that the Criminal Procedure Discovery Act does not apply to presentence hearings, I believe the majority opinion‘s interpretation of the Act as the exclusive means of discovery in criminal cases has rendered the Act unconstitutional. Accordingly, I must dissent to all but Division 5 of the majority opinion.
“It is a fundamental principle of statutory construction that if possible a statute will be construed in such a way as to find it constitutional.” Garner v. Harrison, 260 Ga. 866 (2) (400 SE2d 925) (1991). The majority opinion, however, has interpreted this Act in a way that makes it unconstitutional. The basic error in the majority opinion‘s approach is treating the statute as an exclusive discovery provision. Division 4 of the majority opinion holds that the passage of the Act limits defendants who do not elect to invoke its provisions to “only that discovery specifically afforded by the Georgia and United States Constitutions, statutory exceptions to the Act, and non-conflicting rules of court.” That limitation makes plain that the majority opinion considers the legislature‘s enactment of a “comprehensive” discovery statute to be an “exclusive” discovery statute, but those words are not synonymous. “Exclusive” means “[s]ingle or independent; sole . . . [c]omplete; undivided,” (American Heritage Dictionary, 2d College
The majority opinion contends that the Act, as construed therein, does not deny due process because it is reciprocal. I agree that the Act would not deny due process if, in the search for reciprocity, this Court had not thrown out all discovery not specifically made reciprocal. Wardius v. Oregon, 412 U. S. 470 (93 SC 2208, 37 LE2d 82) (1973), relied upon by the majority opinion, does not hold that discovery provisions must be reciprocal, but that statutes which require a defendant to disclose information without a reciprocal revelation by the State violate due process. The majority opinion has taken that holding, intended to foster a balance of forces, and expanded it to a holding of constitutional stature that undermines our legislature‘s attempt to balance those forces. That expansion is neither necessary nor true to the spirit of the case on which it relies.
The majority opinion also goes too far in its holding that the statute, as construed in the majority opinion, does not violate a defendant‘s right to confrontation. Without the benefit of citation, the majority opinion concludes that “the confrontation clause guarantees only the right to confront and cross-examine those individuals called to testify against a defendant at trial . . . .” (Emphasis in original.) Ignored in that analysis is the notion that the right to cross-examination, as guaranteed by
Related to the majority opinion‘s incorrect diminution of the right of confrontation is the overruling of Eason, supra, in Division 4 (b) of the majority opinion. Contrary to the majority opinion‘s statement, the right to subpoena scientific work product was not derived
The majority opinion‘s rejection of the argument that the Act, as construed in the majority opinion, deprives criminal defendants of their right to effective counsel is contrary to the principle that one should not be forced to give up one right to secure another. See Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968). By treating the Act as exclusive rather than comprehensive, the majority opinion forces defendants who feel the need to obtain discovery to which they are entitled by constitution or statute to obtain it at the expense of the right to have counsel exercise unfettered judgment in how to present the defense and when to reveal the strategy of the defense. As the Supreme Court held in United States v. Jackson, 390 U. S. 570, 582 (88 SC 1209, 20 LE2d 138) (1968), “[t]he question is not whether the chilling effect is ‘incidental’ rather than intentional; the question is whether that effect is unnecessary and therefore excessive.” That is exactly the error of the majority opinion: its chilling effect on the exercise of such rights as the right to counsel is unnecessary and, therefore, excessive.
Properly interpreted, this statute could survive constitutional scrutiny. By limiting the exclusionary effect of the Act to the statutes it repealed, and recognizing, as has Presiding Justice Fletcher in his dissent, that a broad range of discovery remains available to criminal defendants, this Court could uphold the statute and permit it to do the work the legislature intended in attempting to balance the forces at work in criminal litigation. Because the majority opinion has instead treated the reciprocal provisions of the Act as the exclusive means of discovery in criminal cases, thereby depriving defendants of valuable constitutional and statutory rights, I must respectfully dissent.
I am authorized to state that Presiding Justice Fletcher and Justice Sears join in this opinion.
FLETCHER, Presiding Justice, concurring in part and dissenting in part.
1. The majority construes too narrowly the constitutional requirement that the defendant shall be furnished “a list of witnesses on whose testimony such charge is founded.” In Sutton v. State4, we held that the constitutional right to be furnished a list of witnesses “is the right, on demand, to be furnished by the district attorney‘s office, prior to arraignment, with the list of witnesses who will testify for the state on the trial.”
As a matter of due process and fundamental fairness, I would continue to interpret the constitutional provision as requiring the state to provide a list of its trial witnesses despite the repeal of the statute.5 The requirement enables the defendant to prepare a defense by interviewing potential trial witnesses; it aids judicial economy by requiring defense counsel to investigate and interview the witnesses before trial, thus avoiding the need for a continuance; and it places no undue burden on the prosecutor, as shown by the attorney general office‘s practice of furnishing a list of potential trial witnesses in all criminal cases.
Even in the absence of a constitutional right, the better policy and practice is for prosecutors to furnish a list of potential trial witnesses to avoid unfair surprise and make trials more efficient. The discovery act repealed former
2. The due process clause of the United States Constitution guarantees a defendant the right to an independent examination of critical evidence.7 Depending on the case, this right may include the state‘s scientific reports and data on which its experts will rely at trial. Despite the majority‘s unsupported assertion, the repeal of
3. Both the Georgia Attorney General and the Georgia Association of Criminal Defense Lawyers agree that a defendant preparing for trial is entitled to a significant amount of information under the United States Constitution and the Georgia Constitution, statutes, court rules, and court decisions. Specifically, they agree that a defendant is entitled to the following:
A. Exculpatory material as set forth in Brady v. Maryland8
B. Evidence of an understanding, agreement, or promise of leniency under Giglio v. United States9 and Patillo v. State.10
C. Evidence in aggravation that the state intends to rely on at presentence hearings and victim impact evidence under
D. Independent examination of critical evidence under the due process clause of the United States Constitution.12
E. Materials used by a witness to refresh memory as set forth in Sterling v. State13 and Johnson v. State.14
F. Notice of state‘s intent to introduce evidence of similar transactions that do not involve prior difficulties between the defendant and victim under Uniform Superior Court Rule 31.3 and Wall v. State.15
G. Certain information from the Georgia Crime Information Center under
H. Notice of the state‘s intention to rebut evidence of specific acts of violence by the victim against third persons under Chandler v. State16 and Uniform Superior Court Rule 31.6.
I. Pre-trial examination of known handwriting samples under
J. Disclosure of the name of an informant in certain circumstances under Roviaro v. United States17 and Wilson v. State.18
K. Examination of any report prepared under
L. Presentation of evidence at a court proceeding by way of a notice
M. Access to records under the Open Records Act.20
These rights remain available despite a defendant‘s decision not to have the criminal discovery statute apply.
I am authorized to state that Chief Justice Benham and Justice Sears join in this dissent.
DECIDED JUNE 14, 1999 —
RECONSIDERATION DENIED JULY 30, 1999.
Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellant.
Michael Mears, David J. Walker, Sr., Kenneth D. Driggs, for appellee.
John C. Pridgen, District Attorney, Cordele Circuit, Peter J. Skandalakis, District Attorney, Coweta Circuit, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Joseph L. Chambers, Sr., John R. Martin, Donald F. Samuel, amici curiae.