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State v. Stephens12/5/1997
The prosecution is, of course, forbidden by both the Fifth Amendment to our federal Constitution and by statute from commenting on the failure of a defendant to testify at trial. Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); N.C.G.S. § 8-54 (1986); State v. York, ___ N.C. ___, 489 S.E.2d 380 (1997). However, a prosecutor's argument that the State's evidence was uncontradicted does not constitute an improper reference to the defendant's failure to testify. State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693, cert. denied, ___ U.S. ___, 136 L. Ed. 2d 160 (1996) . Here, the prosecutor did not comment directly or indirectly on defendant's failure to testify, but fairly argued that defendant had failed to present exculpatory evidence that rebutted the State's evidence relating to where the murder weapon was found. This assignment of error is without merit.
In his third assignment of error, defendant asserts that the trial court committed reversible error in denying the defense's request for a mistrial after an alleged discovery violation arose during trial. Defendant contends that a discovery violation occurred when a typographical error in a State Bureau of Investigation (SBI) ballistic report was revealed through testimony of an SBI agent. We disagree. Under the particular facts and circumstances here presented, there was no discovery violation, and the trial court did not abuse its discretion in denying defendant's motion for a mistrial.
Defendant asserts that the State committed a discovery violation under N.C.G.S. § 15A-907, which requires the State to continue to disclose evidence as it is discovered, and under N.C.G.S. § 15A-903(d), which requires the State to turn over all documents and tangible objects material to the preparation of the defense. The facts of this case do not support defendant's position. The defendant received a copy of the ballistic report six months before trial. The section of the report in question reads: "Q-1 has similar rifling characteristics and some microscopic markings in common with tests fired from K-1, but lacks sufficient microscopic detail to determine that K-2 fired Q-1." This statement on the report is at best unclear as to whether it is a reference to the 38 Special revolver or the 357 Magnum revolver, and in light of this, it was neither probative nor exculpatory. The State complied with N.C.G.S. § 15A-903(d) when it provided the ballistic report to the defense approximately six months before trial. Furthermore, the State did not violate N.C.G.S. § 15A-907 in breaching its continuing duty to disclose evidence since the prosecutor himself read and noticed the inconsistency in the report only the evening before trial, and any detailed reading would reflect an uncertainty as to its meaning. The prosecutor's failure to discuss this lack of clarity or discrepancy in the report with defense counsel, after it was confirmed as a typographical error by the witness at the lunch recess just prior to the witness' testimony, did not prejudice the defendant or constitute a discovery violation under N.C.G.S. § 15A-907.
Defendant contends that this one statement in the report was essential to the theory of his case and that he was irreparably prejudiced when the typographical error was discovered so close to the end of trial. We find this argument to be without merit. The inconsistency in the report was plain on its face, and the defendant had ample opportunity to investigate the error. Furthermore, under the facts here presented, defendant was not prejudiced, but, if anything, was advantaged by showing the fallibility of the State's expert. Significantly, the error was not probative or exculpatory. The defendant's theory t
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