State v. Moore

CARSON, Judge.

A motion for a bill of particulars is addressed to the sound discretion of the trial court. State v. Overman, 269 N.C. 453, 153 S.E. 2d 44 (1967) ; State v. Westry, 15 N.C. App. 1, 189 S.E. 2d 618 (1972). The court having ruled that the bill of particulars must be furnished, the solicitor was under a duty to abide by the court order to the same extent that anyone else would have been. His attempt to circumvent the order by allowing the defense attorney to read the police files is not an approved practice. Statements of the solicitor and defense counsel show that the police file was more than thirty pages in length and covered numerous crimes and defendants, some of which were connected with this defendant and some of which were not. There is also a conflict as to whether or not the defendant was surprised at the trial by the production of witnesses whose names were not included in the police report. However, it was not made a part of the record and is, therefore, not before us. The solicitor failed to perform his duties by failing to follow the order of Judge Hobgood to provide the bill of particulars.

This does not, however, require the charges against the defendant to be dismissed at this stage. Had the defendant made his objecton known to the trial court before entering a plea and before the impaneling of the jury, undoubtedly the trial court would have granted the defendant a continuance in order that the information may have been obtained. Had the solicitor persisted in refusing to provide the information as ordered by the court, various remedies were available to the defendant, including dismissal of the charges. However, the defendant should not be allowed to acquiesce in the actions of the solicitor by reading the police reports and doing nothing further until such time as jeopardy has attached. It would indeed be a mockery of justice if all the charges against the defendant were dismissed as a result of a trap set by his attorney. The defendant, upon reviewing the police reports proffered by the solicitor, should have objected immediately to such reports as being insufficient compliance with Judge Hobgood’s order for a bill of particulars. Such objection could have been made before jeopardy attached and would have been addressed to the discretion of the trial judge. State v. R. R., 149 N.C. 508, 62 S.E. 1088 (1908). Defendant had ample opportunity before jeopardy attached to object to the solicitor’s submission of the police reports as compliance with the order. He did not avail himself of that opportunity, and we hold, therefore, that he waived his right to object to the failure of the solicitor to furnish the bill of particulars as ordered.

No error.

Judges Britt and Hedrick concur.