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State v. Golphin8/25/2000
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In Alford, this Court held the defendant was entitled to a separate trial where the co-defendant's statement could have corroborated the defendant's alibi, but neither the State nor the defendant offered the statement into evidence, and the defendant could not force the co-defendant to testify because of the co-defendant's Fifth Amendment right against self-incrimination. Alford, 289 N.C. at 387-88, 222 S.E.2d at 232. In the instant case, unlike in Alford, Tilmon was not prevented from offering evidence which would support an alibi. Tilmon merely contends some witnesses would not testify because of the negative statements they would have to make about Kevin; however, contrary to Alford where the defendant could not force the co-defendant to testify, see id., Tilmon could have subpoenaed the witnesses to testify for him. Tilmon also states he was prevented from asking questions about Kevin's motive to kill both victims. Such questioning would not exculpate Tilmon, or clear him from guilt, as would the alibi evidence in Alford. See id. Therefore, the instant case is distinguishable from both Boykin and Alford.
Additionally, the evidence in the instant case clearly supports consolidation of defendants' trials and the trial court's grant of the State's motion for joinder. Kevin and Tilmon were both charged with two counts of first-degree murder; two counts of robbery with a dangerous weapon; and one count each of assault with a deadly weapon with intent to kill, discharging a firearm into occupied property, and possession of a stolen vehicle. The evidence tended to show the offenses arose out of a common scheme and were part of the same transaction. See N.C.G.S. § 15A-926(b)(2). Therefore, the trial court did not err in denying Tilmon's motion for severance and granting the State's motion for joinder.
In another assignment of error, Tilmon argues the trial court erred in denying his pretrial motion for discovery of Trooper Lowry's and Deputy Hathcock's personnel files. Tilmon relies on his federal constitutional right to material evidence which is in the hands of the prosecution. Additionally, Tilmon relies on the rules of evidence pertaining to the admissibility of relevant evidence in arguing he was entitled to the personnel files. Tilmon further argues the files may have shown prior acts of lethal force which might have impacted the jury on the issue of whether Tilmon had a reasonable belief that Kevin was the victim of excessive force by the law enforcement officers on the day in question. We disagree.
Initially, we note Tilmon claims the denial of this requested discovery violated his state and federal constitutional rights. However, Tilmon's motion for discovery of the personnel files did not allege any constitutional violations. As such, the trial court did not rule upon any possible constitutional violations. "`This Court is not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court.'" State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999) (quoting State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985)). Therefore, we need not address Tilmon's allegation that the denial of his motion was a violation of his state and federal constitutional rights. See also N.C. R. App. P. 10(b)(1).
Furthermore, discovery in the superior court is governed by chapter 15A, article 48 of the North Carolina General Statutes. N.C.G.S. § 15A-903 specifically governs disclosure of evidence by the State and provides in pertinent part:
(d) Documents and Tangible Objects. -- Upon motion of the defendant, the court must order the prosecutor to permit the defendant to inspect
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