Law v. State

307 S.E.2d 904, 251 Ga. 525

Opinions

Gregory, Justice.

Eddie Law, Jake Whitfield and two others were convicted in Decatur Superior Court of the offense of possession of cocaine, a controlled substance. Law and Whitfield each appealed to the Court of Appeals. The judgment of the trial court was affirmed in a single opinion which addressed both appeals. Law v. State, 165 Ga. App. 687 (302 SE2d 570) (1983). We granted certiorari to consider Division 3 of the opinion of the Court of Appeals. That division construes a Code section governing discovery of scientific reports. OCGA § 17-7-211 (Code Ann. § 27-1303). We affirm, but construe the Code section in a different way.

OCGA § 17-7-211 (Code Ann. § 27-1303) originated as part of a statute which affords discovery to a defendant of (1) statements given by the defendant while in custody and (2) written scientific reports to be introduced against the defendant in whole or in part by the State at trial. Ga. Laws 1980, p. 1388. The statute defines “written scientific reports,” makes them discoverable, and provides a procedure for the defendant and the State to follow in conducting discovery. The procedure requires the defendant to file a written request for the report, “at arraignment or within any reasonable time prior to trial.” The prosecuting attorney must furnish the defendant a copy of the report at least ten days prior to trial. Failure to comply with a “timely written demand” results in the report being excluded from evidence in the State’s case against the defendant. In the case at hand the request was made less than ten days prior to trial, raising the issue whether the request was timely. The report was oral, not written, raising the issue whether or not the statute applies to an oral report.

The defendants were arrested in a motel room in Decatur County on October 9, 1981. A powdery substance was seized which the sheriffs deputies believed to be cocaine. It was transported to the State Crime Laboratory in Moultrie and later to the laboratory in Atlanta. The defendants were indicted on November 2, 1981, arraigned November 6, 1981 and tried November 11, 1981. At arraignment on November 6, the defendants made written requests or demands for scientific reports. No reports were furnished. At trial an expert from the Atlanta Crime Laboratory was called by the State as a witness for the purpose of identifying the substance seized by the deputies. He testified that he had only received the case on November 3. At that time the district attorney requested a rush job because of the forthcoming trial. The witness then moved the case ahead of its normal sequence and tested the substance on November 9, two days before trial. Because of the brief time interval, no written report was prepared. The witness also testified that another expert examined the substance on behalf of the defendants on the same day as did the witness. The defendants’ expert did not testify at trial. Defendants moved to suppress the testimony of the State’s expert witness identifying the substance as cocaine because no copy of a report on the laboratory analysis had been furnished. The trial court overruled the objection and the two issues we now address were created.

(1) We deal first with the issue of the timeliness of the request. For the convenience of the reader we set out OCGA § 17-7-211 (Code Ann. § 27-1303) in its entirety:

“(a) As used in this Code section, the term ‘written scientific reports’ includes, but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar type reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant.

“(b) In all criminal trials, felony and misdemeanor, the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. The request for a copy of any written scientific reports shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. If such written request is not made at arraignment, it shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial. If the scientific report is in the possession of or available to the prosecuting attorney, he must comply with this Code section at least ten days prior to the trial of the case.

“(c) Failure by the prosecution to furnish the defendant with a copy of any written scientific report, when a proper and timely written demand has been made by the defendant, shall result in such report being excluded and suppressed from evidence in the prosecution’s case-in-chief or in rebuttal.”

The code section has two objectives apparent from its plain language. First, it makes certain reports subject to discovery by a defendant in a criminal case. Second, it provides a procedure to be followed. To accomplish the first objective, the reports are described by their nature and function. Then, two limitations are applied. Not every described report is discoverable, but only those (1) in the possession of or available to the prosecution (2) which will be introduced against the defendant. As to the second objective, the procedure, the time frames and mechanics of conducting the discovery are provided. The defendant initiates discovery by filing a written request for the report. He does this at arraignment or within any reasonable time prior to trial. What is reasonable is in the sound discretion of the trial judge. If the request is timely made, defendant is then given at least ten days access to the report before trial, in order to prepare. That is, a copy of the report must be furnished by the prosecuting attorney at least ten days prior to trial. Nothing in the statute indicates the report becomes non-discoverable solely because a request is untimely. Obviously, the ten day time period may be reduced if ten days are not available either because the defendant delays the request, or because indictment or arraignment occur within ten days of trial. The defendant is nonetheless entitled to production within such time as is reasonable. If the prosecuting attorney furnishes a copy but not in the time frame specified, there is nothing in the statute to require exclusion of the document from evidence. Perhaps late furnishing of a copy will mean the defendant is entitled to a continuance or recess of the trial as the trial judge may determine. The only circumstance making the exclusionary rule applicable is the failure of the prosecuting attorney to afford discovery at all. OCGA § 17-7-211(c) (Code Ann. § 27-1303). Therefore, we construe the code section to provide for discovery of specific reports. The penalty the State suffers for failure to furnish a copy of a report is the exclusion of that report from evidence. The defendant is entitled to have the document at least ten days prior to trial. If ten days are not available, the defendant is entitled to the document within a reasonable time and may be entitled to a continuance or recess as the trial judge shall determine. Only where the prosecuting attorney fails altogether to furnish the document does the exclusionary rule apply.

In this case, only nine days intervened between indictment and trial, and only five days from arraignment to trial. The request was filed at arraignment. Even if a written report had existed, a copy could not have been furnished at least ten days before trial. But, it would have been necessary to furnish a copy within a reasonable time under the circumstances. Perhaps then the question of a continuance or recess would have been presented. Only if no copy at all had been furnished by the district attorney would the exclusionary rule have applied. Any contrary construction of this statute in State v. Meminger, 249 Ga. 561 (292 SE2d 681) (1982) or State v. Madigan, 249 Ga. 571 (292 SE2d 406) (1982) will not be followed.

(2) OCGA § 17-7-211 (Code Ann. § 27-1303) applies to “written scientific reports.” (Emphasis supplied.) We agree with the Court of Appeals that if there is no writing, there is nothing to which the statute attaches. Had the legislature intended to deal with oral reports it could have done so in the same fashion as it did in dealing with discovery of oral statements given by a defendant while in custody. See, OCGA § 17-7-210 (Code Ann. § 27-1302). If the defendant’s statement is oral, the prosecution must reduce to writing and furnish any portion to the defendant which is to be used at trial. That procedure is not contemplated with regard to scientific reports.

In State v. Madigan, supra, we faced a situation where written reports existed. In order to circumvent the exclusionary rule of OCGA § 17-7-211(c) (Code Ann. § 27-1303), oral testimony regarding the contents of the written reports was introduced into evidence at the trial. The written reports were not offered. We held that to permit the oral testimony as a method of avoiding the statute would render the statute meaningless. Such is not the case where no written report exists.

The judgment of the Court of Appeals is affirmed.

All the Justices concur, except Hill, C. J., who concurs in the judgment only, and Smith and Weltner, JJ., who dissent. Decided October 7, 1983. Lambert & Floyd, George C. Floyd, for appellant (case no. 39818). Conger & Conger, Leonard H. Conger, for appellant (case no. 39832). J. Brown Moseley, District Attorney, W. Paul Fryer, Assistant District Attorney, for appellee.