State v. Lucious , 271 Ga. 361 ( 1999 )

Hunstein, Justice.

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, OCGA § 17-16-1 et seq. (“Act”). Lucious filed an omnibus motion seeking an order of the trial court declaring the Act unconstitutional. The trial court denied the motion but granted Lucious the unilateral right to discover specific material, including the State’s trial witness list, scientific reports, and scientific work product.¹

Pursuant to OCGA § 17-10-35.1, the Unified Appeal Procedure in capital felonies, the State filed an application to appeal asserting that Lucious was not entitled to the pretrial discovery information granted by the trial court because of his election not to participate in the Act. We granted the State’s application to consider the constitutionality of Article 1 of the Act, authorizing reciprocal discovery in cases in which at least one felony offense is charged, and if constitutional, what items of information are discoverable to a defendant who elects not to apply the Act to his case.

1. Prior to passage of the Act, there was no comprehensive Georgia statute or rule of law which governed discovery in criminal cases. Enacted in 1994, the Act:

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, OCGA § 17-16-8, relevant written or recorded statements of all witnesses, OCGA §§ 17-16-4 (a) (1), 17-16-7, and scientific reports, physical or mental reports, and other evidence intended for use at trial or evidence obtained from or that belongs to the defendant regardless of whether the State intends to use such evidence at trial. OCGA § 17-16-4 (a), (b). The Act also codifies Walraven v. State, 250 Ga. 401 (297 SE2d 278) (1982), by providing for discovery of a custodial statement and the new requirement that witness statements be provided to the opposing party, OCGA § 17-16-7, as well as notice of an intent to offer an alibi defense and a list of witnesses to be offered to rebut the defense of alibi. See OCGA § 17-16-5 (a) and (b). These provisions reveal that the Act provides a comprehensive scheme of reciprocal discovery in criminal felony cases.

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 U. S. Const., Amend. V; Ga. Const., Art. I, Sec. I, Par. I. We disagree. In Wardius v. Oregon, 412 U. S. 470, 476-477 (93 SC 2208, 37 LE2d 82) (1973), the Supreme Court held that under the due process clause a defendant cannot be compelled to disclose to the State evidence or witnesses to be offered in support of an alibi defense absent reciprocal discovery of the State’s rebuttal witnesses.² The Wardius Court reviewed its earlier decision in Williams v. Florida, 399 U. S. 78 (90 SC 1893, 26 LE2d 446) (1970), which upheld Florida’s notice-of-alibi statute because such statute provided reciprocal discovery, and stated:

[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 confrontation. The right to confrontation is a “trial right,” guaranteeing a defendant the ability to confront and question adverse witnesses at trial. See Pennsylvania v. Ritchie, 480 U. S. 39, 52-53 (107 SC 989, 94 LE2d 40) (1987); Hines v. State, 249 Ga. 257 (2) (290 SE2d 911) (1982). As a trial right, it “does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony,” Ritchie, supra, 480 U. S. at 53 (footnote omitted), and does not guarantee “cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Cit.]” Delaware v. Fensterer, 474 U. S. 15, 20 (106 SC 292, 88 LE2d 15) (1985). Because the confrontation clause guarantees only the right to confront and cross:examine those individuals called to testify against a defendant at trial and the pretrial discovery provisions of the Act do not implicate or infringe upon such right, we find no merit to this argument.

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 U. S. Const., Amend. VI; Ga. Const., Art. I, Sec. I, Par. XIV. The Act simply requires disclosure of witnesses and evidence a defendant intends to introduce at trial as part of a reciprocal discovery process. The United States Supreme Court has affirmed the right of states to experiment with systems of broad discovery designed to aid in the administration of justice and to enhance the fairness of the adversary system. Wardius, supra, 412 U. S. at 474. That the Act provides for discovery before trial rather than after a witness has testified is of no constitutional significance. See United States v. Nobles, 422 U. S. 225, 241 (95 SC 2160, 45 LE2d 141) (1975) (“[t]he Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system”).

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 otherwise provided for by statute or court rule.

(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 OCGA § 17-7-211, Rower, supra, 264 Ga. at 323 (5), a statute expressly repealed by passage of the Act.³ Procedural rights which flow from a repealed criminal discovery statute can be eliminated. See Enger v. Erwin, 245 Ga. 753, 754 (267 SE2d 25) (1980) (legislation which invokes procedural or evidentiary changes may operate retrospectively). In order to obtain discovery of scientific reports, therefore, a defendant must elect to proceed under the provisions of the Act.

(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 OCGA § 17-7-211 and is not a substantive right apart from the discovery provisions of the Act, we hold that Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990) is overruled to the extent it allows a defendant to unilaterally obtain evidence of scientific work product.

(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 OCGA §§ 17-16-3, 17-16-8. Under the Act, a defendant is entitled to a trial witness list and information concerning trial witnesses only if he chooses to have the Act apply, thereby agreeing to the reciprocal discovery provisions of the Act. See OCGA §§ 17-16-3, 17-16-8. Because Rule 30.3 conflicts with OCGA §§ 17-16-3 and 17-16-8 in that it requires the State to furnish a trial witness list without imposing reciprocal discovery obligations upon the defendant, we find the Rule to be unenforceable. Rule 30.3 must yield to the substantive law contained in these statutes. See Hardwick v. State, 264 Ga. 161 (2) (442 SE2d 236) (1994).

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 Ga. Const., Art. I, Sec. I, Par. XIV; Evans v. State, 222 Ga. 392 (2) (150 SE2d 240) (1966).

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 OCGA § 17-10-2, which was not among the various discovery statutes related to felony cases specifically repealed or amended by the enactment of the Act.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Benham, C. J, Fletcher, P. J, and Sears, J., who dissent.

1 The trial court denied other discovery motions made by Lucious, including a motion to compel discovery of his custodial statements, a motion for all criminal records of State witnesses, and a motion to produce statements of witnesses.

2 The Oregon notice-of-alibi statute in issue in Wardius was like OCGA § 17-16-5 (a) in that it required defendants to give written notice to the state of their intent to present alibi evidence and to produce a list of witnesses upon whom the defendant intended to rely for alibi evidence. Wardius, 412 U. S. at 472, fn. 3. In contrast to the Oregon statute, however, the Act imposes a reciprocal obligation upon the State to provide the defendant a list of witnesses upon whom the State intends to rely to rebut the alibi evidence. See OCGA § 17-16-5 (b).

3 The Legislature’s express repeal of OCGA § 17-7-211 effectively supersedes the holding of Sabel v. State, 248 Ga. 10 (6) (282 SE2d 61) (1981), to the extent it is premised upon the existence of the former statute.