Smith's Criminal Case Compendium
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In re Washington County Sheriff’s Office, ___ N.C. App. ___, ___ S.E.2d ___ (May. 5, 2020)
The elected district attorney for prosecutorial district 2, which includes Washington County, filed an ex parte motion in superior court to determine whether a criminal investigative file contained potentially exculpatory information involving a Washington County law enforcement officer that the State would be required to disclose in cases in which it intended to call the officer as a witness. The motion was not filed in connection with any particular criminal prosecution. A superior court judge reviewed the file and ordered the district attorney’s office to disclose to defendant and/or defense counsel the contents of the investigative file in any criminal matter in which the State intended to call the officer as a witness.
The law enforcement officer was notified of the order and appealed.
Over a dissent, the Court of Appeals determined that the judge exceeded the limits of the court’s jurisdiction by entering an advisory opinion and vacated the order. The court reasoned that the order was an anticipatory judgment providing for the contingency that the officer would be called as a witness in a future criminal case. The order was “purely speculative” and amounted to an advisory opinion that the parties might “put on ice to be used if and when occasion might arise.” Slip op. at 6 (internal citations omitted). The court stated that the advisory nature of the order was especially evident if one considered the alternative scenario in which the judge ruled that the State was not required to disclose information contained in the investigative report. Such an order would not bind trial courts from independent determinations of disclosure obligations in future cases.
A dissenting judge would have concluded that the trial court had authority to enter the order and that the appellate court was without jurisdiction to reach the merits of the petitioner’s claims as the petition was not an aggrieved party to the proceeding from which he appealed.