State v. Hughes

GOOLSBY, J.,

(dissenting):' I respectfully dissent.

The majority finds that the trial court failed to exercise its discretion when ruling that an expert witness in child sexual abuse treatment and counseling need not give the defendant during trial the notes used by her before trial to refresh her memory. I disagree. The way I read the record, the trial court did exercise its discretion in fact and committed no abuse of discretion when it did so.

On the question of whether the court exercised its discretion, the court and counsel, outside the presence of a cloistered, waiting jury, engaged in a lengthy discussion about the notes in question. The court focused on their not being readily available, even asking defense counsel whether counsel had asked the witness to produce them. The court denied defense counsel’s request to have the witness produce the notes because “she doesn’t have the notes with her and therefore I can’t require her to produce them,” i.e., the notes were not readily available.

There is no doubt in my mind that the court, presided over by an experienced trial judge, knew that the question of whether to order the notes produced was one addressed to its sound discretion. Indeed, the solicitor expressly reminded the court early on in the discussion that followed defense counsel’s objection and before the court ruled that the question was one addressed to the court’s discretion. Then we have this interesting exchange that came about immediately after the court ruled:

*345SOLICITOR MURPHY: Your Honor, I just want to, for the record, and I’m following the point, is that in your discretion you’re determining that it’s not necessary for the interest of justice?
THE COURT: It’s not necessary to send her to try to get them, or try to get them faxed here so they can look at them. If that’s what your question is, that’s correct.

(Emphasis added).

In other words, the court determined in the exercise of its discretion that the interest of justice did not require it either to have the witness leave the courthouse to retrieve her notes or to have someone else to send them electronically to the court for inspection. I do not think this exchange can be reasonably read any other way than that.

In sum, what the court said is no different than had the court declared, knowing full well that a jury was waiting in the jury room and after having inquired ’ whether counsel had made any effort prior to trial to secure them, “If the witness had the notes with her, I would make her produce them. Because she doesn’t, I’m not going to send her after them or have someone look for them and then fax them.” To me that is a manifest exercise of discretion, especially when one considers all the circumstances that attended the court’s ruling. True, the trial court did not trim its decision -with the magic words “in the exercise of my discretion,” but then, it did not have to. Everyone present knew what the court was doing.

Which brings me to this problem. It concerns whether the error now employed as a ground for the reversal of Hughes’ conviction was ever presented to the trial court , for it to consider. Nowhere in the record did defense counsel ever claim the court did not exercise its discretion.5 Indeed, neither of the two appellant briefs filed by appellate defense with this court even raises or argues the issue!6 One brief addresses simply the question of abuse of discretion while the *346other ignores the issue of discretion altogether, seemingly-arguing the court had no discretion at all regarding the production of the notes. The majority supplies this ground for reversal on it own, which is something this court cannot properly do.7

On the question of whether the trial court abused its discretion, I believe the location of the documents at that point in the trial was a proper matter for the court to consider.8 Moreover, it is clear that Hughes was aware that the witness was going to testify but stated that he could not get in touch with her prior to trial.9 He did, however, receive a copy of her statement. Had Hughes wanted to insure that the witness would bring all of the relevant documents, he could have subpoenaed her to do so.10 As. to Hughes’ argument that the relevant material could have been faxed to the court, there was no evidence that the documents were readily obtainable by anyone wherever they were.

In any case, I am satisfied that, looking at the record as a whole and given the evidence, any error the trial court may *347have committed in not ordering the witness to produce her notes was an error that was harmless beyond a reasonable doubt.

I would affirm.

. See Jean Hoefer Toal, et al., Appellate Practice in South Carolina 66 (1999) ("The first step in preserving an issue for appellate review is to actually raise it to the lower court.”).

. Id. ("Ordinarily, no point will be considered on appeal which is not set forth in the statement of the issues on appeal.... However, where an issue is not specifically set put in the statement of the issues, the appellate court may nevertheless consider the issue if it is reasonably *346clear from appellant’s arguments.”); see also Rule 208(b)(1)(B), SCACR (same).

. See Shayne of Miami, Inc. v. Greybow, Inc., 232 S.C. 161, 168, 101 S.E.2d 486, 490 (1957) ("[I]t is not the function of an appellate court to supply a ground for reversal.”); see also Connolly v. People’s Life Ins. Co., 299 S.C. 348, 352, 384 S.E.2d 738, 740 (1989) ("We have held that the Court of Appeals may not decide an issue neither presented to the circuit court nor raised by proper exception on appeal.”).

. See State v. Griffin, 136 N.C.App. 531, 525 S.E.2d 793 (2000) (finding no abuse of discretion in denying defendant’s request to examine notes when trial court found notes were in witness’s locked car); Ohio v. Byrd, 35 Ohio App.3d 100, 519 N.E.2d 852 (1987) (noting that in exercising discretion under Rule 612, one of the factors the court should consider is any potential disruption of the orderly proceedings); see also State v. Hamilton, 276 S.C. 173, 276 S.E.2d 784 (1981) (prerule case finding error in refusing to allow defendant to examine notes when they were in court and available for review).

. See Kilbarger v. Anchor Hocking Glass Co., 120 Ohio App.3d 332, 697 N.E.2d 1080 (1997) (finding no abuse of discretion under Rule 612 where party failed to conduct adequate discovery prior to trial).

. See Rule 13, SCRCrimP (providing for the issuance and service of subpoenas).