State v. Hughes

552 S.E.2d 35, 346 S.C. 339, 2001 S.C. App. LEXIS 102

• Court: Court of Appeals of South Carolina
• Decided: July 9, 2001
• Docket: No. 3369
• Status: Published

Opinions

HEARN, C.J.:

Don L. Hughes appeals from his conviction for two counts of criminal sexual conduct with a minor in the second degree. He contends the trial court erred in (1) failing to permit defense counsel to inspect notes used by a key prosecution witness to refresh her memory before trial and (2) failing to make the notes part of the record for appeal. We reverse the trial court’s ruling with respect to the notes and remand for an evidentiary hearing to determine whether a new trial is necessary.

FACTS AND PROCEDURAL HISTORY

Hughes was indicted for two counts of criminal sexual conduct with a minor in the second degree. His alleged victim was a female relative. A medical examination of the child did not show any conclusive evidence of physical abuse. Therefore, the State sought to prove its case using testimonial evidence.

During trial, the State called Crystal Tuck as an expert in child sexual abuse treatment and counseling. She testified the victim’s behavior was consistent with child sexual abuse. On cross-examination, Hughes asked if Tuck had reviewed her notes before testifying. Tuck responded she had used her notes to refresh her memory. Hughes then sought to inspect the notes pursuant to Rule 612, SCRE. The trial court refused to require Tuck to submit those notes because they were in Columbia and the trial was being held in Orangeburg. The trial court also refused to require Tuck to submit the notes prior to the end of the trial so Hughes could proffer them.

The jury convicted Hughes of two counts of criminal sexual conduct with a minor in the second degree, and he was sentenced to two consecutive twenty year sentences. Hughes appeals.

DISCUSSION

Hughes argues the trial court erred in not requiring Tuck to produce the notes she used to refresh her memory for trial. He maintains defense counsel should have been permitted to inspect the notes, or at least to proffer them.

Hughes’s access to Tuck’s notes was governed by Rule 612, SCRE, stating in part:

If a witness uses a writing to refresh memory for the purpose of testifying, either-

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

Under the plain language of this rule, the trial court has discretion to allow or refuse examination by an adverse party of writings used by a witness prior to trial to refresh his or her memory. An abuse of discretion occurs when a trial court’s decision is unsupported by the evidence or controlled by an error of law. Ledford v. Pennsylvania Life Ins. Co., 267 S.C. 671, 675, 230 S.E.2d 900, 902 (1976). Moreover, our supreme court has held:

When the trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred. WTiere a court is clothed with discretion, but rules as a matter of law, the appealing party is entitled to have the matter reconsidered and passed on as a discretionary matter.

Fontaine v. Peitz, 291 S.C. 536, 538-39, 354 S.E.2d 565, 566-67 (1987) (citations omitted).

In making a determination based on Rule 612(2), the trial court must be guided by the interests of justice. To decide whether production of a writing is necessary in the interests of justice, the trial court should balance the interests of the party seeking production against the burden of requiring production. See 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6185 (1993).¹

Here, Tuck’s testimony on cross-examination demonstrates she relied on her notes to refresh her memory before trial. Initially, the trial court was inclined to admit the notes, but after discovering the notes were in Columbia rather than in Orangeburg, it refused to require their submission for inspection or proffer. The trial court apparently believed it was powerless to order Tuck to produce anything that was not in the courtroom.² This was an error of law because the rule’s language is not limited to materials located inside the court-, room. See Rule 612, SCRE. Therefore, the trial court erred in failing to exercise its discretion. See Fontaine, 291 S.C. at 538-39, 354 S.E.2d at 566-67; State v. Smith, 276 S.C. 494, 498, 280 S.E.2d 200, 202 (1981) (“It is apparent here the sentencing judge did not exercise any discretion but based his ruling on an erroneous view of the law. It is an equal abuse of discretion to refuse to exercise discretionary authority when it is warranted as it is to exercise the discretion improperly.”).³

Accordingly, we reverse the trial court’s refusal to order Tuck to submit her notes and remand for an evidentiary hearing to determine whether Hughes was entitled to access to the notes as outlined in Rule 612.⁴ If the trial court finds production of the notes was necessary in the interests of justice, and the denial of such access significantly impaired Hughes’s defense, it shall grant a new trial.

REVERSED IN PART AND REMANDED.

CONNOR, J., concurs. GOOLSBY, J., dissents in a separate opinion.

1 . In determining the interests of the party seeking production, other courts have looked to the following factors: (1) the importance of the witness’s testimony; (2) the extent of the witness’s reliance on the notes; (3) the extent to which the writings might reveal a credibility problem; (4) whether credibility could be challenged some other way; and (5) whether there is evidence of a plan to use writings to influence the witness’s testimony and then resist production. Wright & Gold, supra. To assess the burden of production, courts have looked to: (1) the extent of the materials sought; (2) whether such materials are privileged or attorney work product; (3) public policy; (4) conduct of the party seeking production; and (5) whether production would unduly delay the proceedings. Id.

2 . In denying Hughes’s requests to view the notes, the trial court stated, “But I’m also just saying she doesn’t have them here, and therefore, I can’t require her to produce them.”

3 . Because it appears the trial court failed to exercise its discretion, we do not address whether it was necessary in the interests of justice to order the notes produced. Additionally, we note that the failure to exercise discretion distinguishes the instant case from cases in other jurisdictions affirming the trial court’s discretionary decision not to require production of writings used to refresh the witness’s memory before trial. See e.g., State v. Griffin, 136 N.C.App. 531, 525 S.E.2d 793, 808 (2000) (upholding trial court’s discretionary decision to exclude writing locked in witness's car); State v. Byrd, 35 Ohio App.3d 100, 519 N.E.2d 852, 855-56 (1987) (finding court did not abuse its discretion in refusing to require production of writing where prosecutor represented that the whereabouts of the writing were unknown and a search would interfere with an expeditious trial).

4 . We do not find the record in this case contains overwhelming evidence of Hughes’s guilt; therefore, we do not find the error harmless as suggested by the State. See, e.g., State v. Jones, 343 S.C. 562, 575-76, 541 S.E.2d 813, 820 (2001) (finding error not harmless "given the extent to which the State’s case depended upon the credibility of an admitted accomplice and the defense theory which sought to convince the jury that the accomplice acted alone”).