No. Coa04-1468 Twenty-Fifth Judicial District

NO. COA04-1468 TWENTY-FIFTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA,)

Plaintiff,) From Burke County

v.) 04 CrS 3069

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TONY GENE HARRISON,)

Defendant.)

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DEFENDANT-APPELLANT’S BRIEF

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S U B J E C T I N D E X

TABLE OF CASES AND AUTHORITIES...... ii

QUESTION PRESENTED...... 1

STATEMENT OF THE CASE...... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW...... 2

STATEMENT OF THE FACTS...... 3

ARGUMENT

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE JURY TO CONSIDER PHOTOGRAPHIC EVIDENCE THAT HAD NOT BEEN PROVIDED TO DEFENSE COUNSEL UNTIL SHORTLY BEFORE TRIAL 7

CONCLUSION...... 14

CERTIFICATE OF FILING AND SERVICE...... 15

APPENDIX A...... 17

APPENDIX B...... 30

TABLE OF CASES AND AUTHORITIES

Cases

Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972) 10

Chavis v. North Carolina, 637 F.2d 213 (4th Cir. 1980)...... 11

Jean v. Rice, 945 F.2d 82 (4th Cir. 1980)...... 11

Kyles v. Whitley, 514 U.S. 432 (1995)...... 10

State v. Alston, 307 N.C. 321, 330, 298 S.E.2d 631, 639(1983)...8

State v. Canady, 355 N.C. 242, 253, 559 S.E.2d 762, 767 (2002).10

State v. Payne, 327 N.C.194, 394 S.E.2d 158 (1990)...... 9

State v. Shaw, 293 N.C. 616, 239 S.E.2d 439(1977)...... 9

State v. Spivey, 102 N.C.App. 640, 646 (1991)...... 10

State v. Taylor, 332 N.C. 372, 420 S.E. 2d 414 (1992)...... 9

State v. Thomas, 291 N.C. 687, 231 S.E.2d 585(1977)...... 8

State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988)...... 9

Strickler v. Greene, 527 U.S. 263 (1999)...... 11

United States v. Agurs, 427 U.S. 97 (1976)...... 11

United States v. Minsky, 963 F.2d 870 (6th Cir. 1992)...... 11

QUESTION PRESENTED

Did the trial court commit reversible error in allowing the jury to consider photographic evidence that had not been provided to defense counsel until shortly before trial?

STATEMENT OF THE CASE

Tony Gene Harrison was indicted on charges of robbery with dangerous weapons, conspiracy to commit armed robbery and assault inflicting serious injury (R. p.2). Mr. Harrison was tried at the Criminal Session of the Superior Court of Burke County, before the Honorable Judge Richard D. Boner (R. p. 1). The jury found the Mr. Harrison guilty on all counts (R. p. 66), and Judge Boner sentenced Mr. Harrison to a minimum of 77 months and a maximum of 102 months in prison on the robbery and conspiracy charges, and 29 months minimum and 44 maximum on the assault charge, the sentences to be served consecutively (R. p. 71, 73).

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

As a matter of right, pursuant to N.C.G.S. 7A-27(b), defendant gave notice of appeal. The defendant seeks correction of errors pursuant to N.C.G.S. 15A-1441 and 15A-1442.

STATEMENT OF THE FACTS

The State of North Carolina indicted Mr. Harrison on three charges arising from robbery of the Dominoes Pizza in Valdese, North Carolina on November 18th 2003: Robbery with dangerous weapons, conspiracy to commit armed robbery and assault inflicting serious injury. Attorney Doug Hall was appointed to represent Mr. Harrison on these charges (R. p. 8).

Prior to trial, defense counsel filed a Request for Discovery (R. p. 10), a Motion for the State to Provide Exculatory Information (R. p. 13), a Request for Voluntary Disclosure (R. p. 21), a Motion for Additional Discovery (R. p. 34) and a Motion to Compel (R. p.39).

At trial, the State offered evidence as follows:

Jacob Scronce of Drexel North Carolina testified that he had been employed at the Dominoes Pizza restaurant in Valdese, North Carolina on the 18th of November, 2003 (T. p. 156). He was closing the store with another employee (T. p. 156). As they were beginning to clean the store, two individuals entered the store. The door chime alerted Mr. Scronce that they had entered the store (T. pp. 156-157). He peeped his head around the corner and saw two men wearing what looked like white pillow cases with holes cut out (T. p. 157). Mr. Scronce testified that he was about twenty five feet away, that he only saw the individuals for about three seconds, and that he could not tell what race they were. He could not identify the men who entered the store (T. p. 157). One of the men held a gun and said “put the money in the bag” as he pointed the gun at Mr. Scronce (T. p. 157). Mr. Scronce told his co-worker they were being robbed and then ducked out the back door of the store. He could still hear what was happening in the store (T. pp. 158-159). The door chime went off, indicating the robbers were leaving and he heard a gunshot. He looked at his co-worker and called 911 (T. p. 159). He then waited for paramedics and police to arrive (T. p. 162).

The State introduced a handwritten statement that Mr. Scronce had given to police shortly after the robbery (T. p. 169). The Defense counsel objected to the admission, because the statement had not been provided to defense counsel prior to trial. Mr. Harrison’s counsel reviewed the statement but did not have any questions after his review (T. p. 167).

The State then called Wesley Scott Jett (T. p. 170). Mr. Jett testified that he was working at the Dominoes Pizza with Mr. Scronce on November 18, 2003. At about 10:30 p.m., he was washing dishes when he noticed people enter the store with hoods on (T. p. 171). Mr. Jett thought that it was a six-foot-tall white man and a black man, about five-foot-eight or -nine (T. p. 172). The white man was holding a gun and demanded all the money be put in a bag (T. p. 172). Mr. Jett complied, pulled the till out and put the money in the bag. As the men were leaving the store with the money, the white man fired the gun and struck Mr. Jett in the forearm (T. p. 173). Mr. Jett further testified that the bullet hurt and that he went to the hospital (T. p. 174). The bullet remains in his arm (T. p. 175).

The State then sought to admit as evidence a number of photographs of the Dominoes store. The State revealed these photos to defense counsel for the first time at trial (T. pp. 184-185). The Defendant objected to these photos because they had not previously been disclosed to defense counsel (T. pp. 184-185). The trial court allowed defense counsel an opportunity to visit the Dominoes and take his own photographs (T. p. 179). The Court did not rule on the whether the failure to disclose the photos prior to trial was a discovery violation (T. pp. 179-189). The State then had Mr. Jett testify further about the robbery using the photos of the Dominoes to illustrate and explain his testimony (T. pp. 189-203). Defense counsel objected to the admission of each photo (T. p. 189-203).

The State then called as a witness Anthony Allred. Mr. Allred was serving a sentence for his involvement in the robbery of the Dominoes store (T. p. 215). Mr. Allred testified that he and some others, including Mr. Harrison, had been riding around and decided to rob a store (T. p. 216). Mr. Harrison had been the man that had gone into the store with him. Mr. Allred admitted that he had been holding the gun and stated that the gun had fired when he tripped as he was leaving the store (T. p. 216).

The State called Steve Vallini, another man involved in the robbery. Mr. Vallini testified that he was in the car with the other men the night of the robbery (T. p. 236-27). He identified the weapon that had been used as a gun that had belonged to him until he had given it to Mr. Allred (T. p. 237).

Randy Reid then testified that he had been working as an officer with the Valdese Police Department on 18 November 2003 (T. p. 243). In that capacity, he had responded to the robbery at the Dominoes (T. p. 250). Officer Reid used the photos that had been previously admitted to illustrate and explain his testimony (T. p. 252).

The State then offered the testimony of Robert Beall, a detective with the Burke County Sheriff’s Department (T. p. 258). Detective Beall testified that he had also responded to the robbery at the Dominoes (T. p. 259). He testified that he had taken a statement from Mr. Jett at the hospital on the evening of the robbery. Later, he had questioned Mr. Allred and taken a statement from him (T. pp. 262-263).

That State rested (T. p. 288). Defense counsel made a motion to dismiss, which the Court denied (T. p. 292). The defendant also moved for a mistrial, due to the discovery violation (T. p. 295). This motion was also denied (T. p. 296). The defense did not present evidence (T. p. 293). The jury returned verdicts of guilty to all charges (R. p. 66). The Defendant appeals (R. p. 76).

ARGUMENT

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE JURY TO CONSIDER PHOTOGRAPHIC EVIDENCE THAT HAD NOT BEEN PROVIDED TO DEFENSE COUNSEL UNTIL SHORTLY BEFORE TRIAL.

Assignment of Error No. 1; T. pp. 178-189.

The defense requested discovery and the State indicated it had received a request for discovery and certified discovery had been provided. The defense had not been given any photos. Counsel asked the officers if there were any photos and was told there probably weren't any. The photos were not given to defense counsel until they were about to be introduced in court (T p. 179). The trial judge determined he would not suppress the evidence; he only gave the defendant a recess to prepare to gather his own photographic evidence. Counsel asked that the photos not be presented to the jury, that the court declare a mistrial, or that jury be instructed not to consider the photographic evidence at all. At a minimum, counsel thought it would be critical to have an opportunity to gather his own photographic evidence prior to trial. The trial court allowed the photos of the Dominoes to be admitted in evidence and be presented to the jury over the defendant’s objection.

The failure to comply with the discovery statute and properly disclose the photos prior to trial completely undermined the defendant's ability to confront the allegations against him, and to present his defense. It was error to allow this evidence when the critical issue concerned the events inside the Dominoes. This assignment of error is preserved for normal appellate review by the defendant’s timely objection to the admission of the photographs which had not been provided prior to trial, or it should be reached under normal review by application of Rule 2 of the Rules of Appellate Procedure.

N.C.G.S. 15A-903, provides that, among other things, the State must provide the defendant with a document which is in the possession or control of the State and which is material to the preparation of the defense or is intended for use by the State as evidence at the trial. The State must also provide access to the reports of any physical examinations made in connection with the case, within the possession of the State, or which, by the exercise of due diligence, may become known to the prosecutor. The purpose of discovery is to protect the defendant from unfair surprise. State v. Alston, 307 N.C. 321, 330, 298 S.E.2d 631, 639(1983); State v. Thomas, 291 N.C. 687, 231 S.E.2d 585(1977).

The purpose of discovery is to protect a defendant from unfair surprise. State v. Payne, 327 N.C.194, 394 S.E.2d 158 (1990). Sanctions imposed for non-compliance with discovery statutes are in the discretion of the trial court. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988). A defendant must bring the non-compliance issue to the trial court’s attention to preserve the error for appeal. State v. Taylor, 332 N.C. 372, 420 S.E. 2d 414 (1992)

The State notified the defense during the trial of its intention to use photos. Defense counsel objected and notified the trial court of the State’s non-compliance with the discovery rule and the surprise it created. The trial court abused its discretion in admitting evidence that constituted an unfair surprise. Sanctions for noncompliance with the statute, even if non-compliance is unintentional, may result in the prohibition of the evidence not disclosed. N.C.G.S. 15A-910(3). The court's decision on what sanctions are to be imposed is an exercise of its discretionary authority. State v. Shaw, 293 N.C. 616, 239 S.E.2d 439(1977). Not all disclosure problems are solved by showing them to the defense at trial. Some evidence materially affects trial preparation and therefore must be disclosed prior to trial.

In State v. Canady, our state Supreme Court reviewed the accused's complaint that he was not given the name of the State's informant who had implicated five other people in the crime. The accused further complained that the State had failed to give him the name of a man brought back from another state who had evidence that the murders in question were arranged by a third person. The Court, quoting from State v. Taylor, 344 N.C. 31, 50, 473 S.E.2d 596, 607 (1996), said that the State has not satisfied its duty to disclose "unless the information was provided in a manner allowing defendant 'to make effective use of the evidence.'" The Court noted that the defendant needed access to the individuals to interview them and develop leads. The Court was of the opinion that there was a reasonable probability that if the defendant had access to informants who had names of others involved in the murders, such information could have swayed the jury to reach a different outcome. "Defendant had a right to this information in a timely manner so he could effectively use it." State v. Canady, 355 N.C. 242, 253, 559 S.E.2d 762, 767 (2002).

Delay of disclosure of such materials is strongly disapproved. State v. Spivey, 102 N.C.App. 640, 646 (1991). The defendant's state and federal constitutional due process rights are implicated by the failure to turn over information that is favorable, material, or impeaching. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); Kyles v. Whitley, 514 U.S. 432 (1995). The duty to disclose arises whether or not the defendant specifically requests the evidence. United States v. Agurs, 427 U.S. 97 (1976). An investigator's notes and letters relating to witness interviews useful for impeachment are discoverable as well. Strickler v. Greene, 527 U.S. 263 (1999). Other courts have recognized that favorable, and therefore discoverable, evidence includes false statements of a witness, United States v. Minsky, 963 F.2d 870 (6th Cir. 1992); prior inconsistent statements by a witness, Chavis v. North Carolina, 637 F.2d 213 (4th Cir. 1980); and information affecting a witness's capacity to observe, perceive, or recollect, Jean v. Rice, 945 F.2d 82 (4th Cir. 1980).

In this case, the defendant was convicted of robbery with dangerous weapons, conspiracy to commit armed robbery and assault inflicting serious injury. All of the State’s evidence concerned the events at a Dominoes Pizza on the evening of November 18, 2003.

The failure to properly disclose the photos and the fact that investigators had taken them in the preparation of its case completely undermined the defendant's ability to confront the charges against him and to present his defense. The State’s evidence of what occurred at the Dominoes that evening was established by the testimony of witnesses and the use of the photos. However, had defense counsel been apprised that there were photos, he could have conducted an independent inspection of the Dominoes and taken photos that may well have assisted in challenging the testimony of the State’s witnesses. Having the photos in time to prepare for trial would have made it possible for them to determine if there were any discrepancies or inconsistencies between the photos and the testimony of the witnesses. If there were discrepancies or inconsistencies, the defense would have had an opportunity to further investigate and incorporate that critical information into the defense’s theory of the case. The failure to disclose the photos was exacerbated by the fact that the Dominoes had been remodeled since the time of the robbery. To be sure, the State’s failure to comply with the discovery rules may have been an honest mistake. However, the consequences were severe. The defendant lost a valuable opportunity to challenge critical evidence against him and to change the outcome of his trial. The importance of this evidence is apparent. The State sought admission of this evidence, and then sought to publish the evidence to the jury. Clearly, the State would not have done so, had this evidence not been important to persuading the jury of the defendant’s guilt. Likewise, Mr. Harrison’s ability to persuade the jury that there was reasonable doubt in this case was prejudiced by not having this evidence prior to trial. The defendant has demonstrated harm from this error.

At a minimum, his counsel gave the court some specific details of what steps he would have taken, had he known of the photos. The photos assisted the State in proving the pivotal issues in the trial. A recess to allow defense counsel to take his own pictures was not sufficient. As our Supreme Court has noted, not all disclosure problems are solved by showing them to the defense at trial. Some evidence materially affects trial preparation and therefore must be disclosed prior to trial. Delay of disclosure of such materials is strongly disapproved. State v. Spivey, 102 N.C.App. 640, 646(1991).

The trial court in this case was clearly of the opinion that the State had failed to comply with the statute. However, the court abused its discretion in failing to sanction for such a critical blow. The defendant is entitled to a new trial wherein the state fully complies with the discovery statutes and the jury gets to hear the defense based on all of the evidence.

CONCLUSION

For the reasons set forth in the arguments above, the defendant respectfully contends that the convictions of robbery with a dangerous weapon, conspiracy to commit armed robbery and assault inflicting serious injury must be vacated.

This Brief of the Defendant-Appellant is respectfully submitted this, the ______day of January, 2006.

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Michael E. Casterline

NC State Bar No. 18139

Attorney for Defendant-Appellant

68 North Market Street

Asheville, NC 28801

828/ 253-6401

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the above and foregoing Defendant-Appellant’s Brief has been duly filed by placing the same in an envelope addressed to the Clerk of the North Carolina Court of Appeals, P.O. Box 2779, Raleigh, North Carolina 27602, first-class postage prepaid, and depositing the same in an official depository under the exclusive care and custody of the United States Postal Service, in accordance with Rule 26(a) of the North Carolina Rules of Appellate Procedure.

I hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served on the State by placing the same in an envelope addressed to:

Don Laton

Department of Justice

Attorney General’s Office

9001 Mail Service Center

Raleigh, NC 27699-9001

with first-class postage prepaid, and depositing the same in an official depository under the exclusive care and custody of the United States Postal Service, in accordance with Rule 26(a) of the North Carolina Rules of Appellate Procedure.

This, the ______day of January, 2006.

______

Michael E. Casterline

Attorney for Defendant-Appellant