Appeal by defendant from Sitton, Judge. Judgment entered 30 October 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 21 October 1981.
Webb, Judge. Judge Martin (Robert M.) concurs. Judge Wells dissents.
The defendant has brought forward and argues 24 assignments of error. In her first assignment of error, the defendant challenges the overruling of her motion to dismiss because she was not tried within 120 days of the day on which she was indicted. G.S. 15A-701(a1) provides in part:
(a1) . . . the trial of a defendant charged with a criminal offense who is . . . indicted, on or after October 1, 1978, and before October 1, 1983, shall begin within the time limits specified below:
(1) Within 120 days from the date the defendant is . . . indicted . . .
(b) The following periods shall be excluded in computing the time within which the trial of a criminal offense must begin:
(7) Any period of delay resulting from a continuance granted by any judge if the judge granting the continuance finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing in the record of the case the reasons for so finding.
The defendant was indicted on 9 June 1980. On 18 September 1980 the State made a written motion to have the case continued until 8 October 1980 and to exclude this period of time pursuant to G.S. 15A-701(a1)(b)(7). The State showed in support of this motion that the court had peremptorily set two cases for trial, one to commence on 29 September 1980 and one on 6 October 1980, that the same assistant district attorney who was to handle the instant case was to handle the case set for 29 September 1980, and
the case set for 6 October 1980 was scheduled for trial in the same courtroom as the instant case. The State further showed that the instant case would involve a protracted trial, there being the testimony of three expert witnesses and approximately five other persons. The court found that the defendant was not in custody while the defendants in the two cases which had been peremptorily set were in jail, and that the ends of justice served by granting the continuance outweighed the best interests of the public and the defendant in a speedy trial. The court ordered the case continued from 29 September 1980 until 27 October 1980 and excluded that period of time in computing the time in which the defendant's trial must begin.
We hold the court's findings of fact were supported by the evidence and there was no error in excluding the time between 29 September 1980 and 27 October 1980 from the time in which defendant's trial was required to begin. The defendant's first assignment of error is overruled.
In her second assignment of error the defendant argues the court should have excluded the findings of two fire investigators who testified for the State. Burt Christopher, III was employed by the Charlotte Fire Department as a fire investigator. Allen Lee Blackwelder was employed by a private company that investigated fires for insurance companies. Mr. Christopher and Mr. Blackwelder investigated the fire in the instant case. On 6 June 1980 the defendant made a request for voluntary discovery. The State did not furnish the written report of either investigator to the defendant pursuant to the request for voluntary discovery. On 25 September 1980 the defendant made a motion for the production of these documents. Approximately one month prior to the trial of the case, Judge C. E. Johnson ordered the State to furnish a copy of Mr. Christopher's report to the defendant but refused to require the State to furnish the defendant with a copy of Mr. Blackwelder's report. The State furnished the defendant with a copy of Mr. Blackwelder's report during the trial. The defendant argues that it was error requiring a new trial for the State not to furnish her with the Christopher report until approximately one month prior to the trial and not to furnish the Blackwelder report until the time of trial.
The defendant contends she was entitled to have the reports pursuant to G.S. 15A-903(d) and (e) which provide:
(d) Documents and Tangible Objects. -- Upon motion of the defendant, the court must order the solicitor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belong to the defendant.
(e) Reports of Examinations and Tests. -- Upon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, 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. In addition, upon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence, or a sample of it, available to the prosecutor if the State intends to offer the evidence, or tests or experiments made in connection with the evidence, as an exhibit or evidence in the case.
G.S. 15A-904(a) provides:
(a) Except as provided in G.S. 15A-903(a), (b), (c) and (e), this Article does not require the production of reports, memoranda, or other internal documents made by the prosecutor, law-enforcement officers, or other persons acting on behalf of the State in connection with the investigation or prosecution of the case, or of statements made by ...