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[T] State v. Stanton6/17/2003
nts made by the defendant, or copies thereof, within the possession, custody, or control of the State the existence of which is known or by the exercise of due diligence may become known to the prosecutor[.]
N.C. Gen. Stat. § 15A-903(a)(1) (2001). The prosecutor's office maintained an open file policy allowing defendant open access to its files. The prosecutor filed a discovery certificate that it hadproduced its entire file to defendant by mailing a copy to defendant's attorney. The only contradiction to these facts is defendant's attorney's representation in the record.
Neither the North Carolina discovery statute, N.C.G.S. §§ 15A-902 to -910, nor the case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963), requires the trial court to impose any sanctions for failure to comply with discovery. The determination as to whether the state substantially failed to comply with discovery is within the trial judge's discretion. This Court has held that discretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the State in its noncompliance with the discovery requirements.
State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 48-49 (1986) (citations omitted).
Defendant has made no showing of bad faith on the part of the State. Even assuming defendant's statement to Special Agent Oxendine was not included with the rest of the discovery, the State's actions amount to a discovery violation rather than a constitutional one. Defendant never alleged a constitutional violation at trial and any objections on constitutional grounds have been waived. See State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Moreover, even if the admission of the statement was erroneous, it was harmless beyond a reasonable doubt, given the overwhelming evidence of defendant's guilt and the significantly varied stories offered by defendant at various points in the investigation. Defendant's third assignment of error is overruled.
Short Form Rape Indictment
By his fourth assignment of error, defendant contends the short form rape indictment, N.C. Gen. Stat. § 15-144.1 (2001), is invalid because he lacked proper notice of the charge against him. To rule in defendant's favor, we would be required to hold that the short form indictment statute is unconstitutional. Defendant did not raise this issue at trial and constitutional issues not raised below will ordinarily not be considered on appeal. Hunter, 305 N.C. at 112, 286 S.E.2d at 539.
Despite defendant's failure to object to the validity of the indictment below, we note that our Supreme Court has found the statutory short form rape indictment legally sufficient, even though the indictment does not specifically allege each and every element of the offense. State v. Lowe, 295 N.C. 596, 604, 247 S.E.2d 878, 883-84 (1978). Even in light of recent Supreme Court cases, Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), we believe the reasoning of Lowe remains viable. See State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000); and State v. Love, 152 N.C. App. 608, 618-19, 568 S.E.2d 320, 327 (2002), disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2003). Defendant's fourth assignment of error is overruled.
Testimony of Ms. Avery
By his next assignment of error, defendant contends the trial court committed plain error by allowing his wife to testify becausehe did not waive confidential privilege. We do not agree.
In North Caro
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