Mr. _________:

I am writing in response to your letter dated August 26, 2009, in which
you object to the issuance of a subpoena duces tecum on behalf of ___
(09 CR 055594; 09 CR 705048; 09 CR 705179). As you know, according to
Article 42 of the North Carolina General Statutes, a subpoena duces
tecum is a proper tool for compelling production of "records, books,
papers, documents, or tangible things in a criminal proceeding." N.C.
GEN. STAT. § 19A-802. Since Troopers Philip M. Dixson and P.M. Stevens,
II, have failed to comply and you have failed to timely file a motion
to quash, you leave me little option but to proceed with a motion to
compel under Rule 45 for the production of the video from the dashboard
camera of the patrol car unless it is produced forthwith.

The position you take in your letter is partially correct. Article 48
of the North Carolina General Statutes does not apply to evidence
gathering procedure in district court. See N.C. GEN. STAT. § 15A-901,
Comment. The Article specifically applies to cases within the original
jurisdiction of the superior court. See id. Article 42 of the Criminal
Procedure Act, however, is mutually exclusive of Article 48, and allows
for the subpoenaing of witnesses and production of "records, books,
papers, documents, or tangible things in a criminal proceeding." N.C.
GEN. STAT. § 19A-802. A criminal proceeding occurs in either the
district court or superior court. As long as the proceeding is
criminal, Article 42 applies.

Under Article 42, a subpoena for the production of such tangible
evidence must comply with North Carolina Rule of Civil Procedure 45.
N.C. GEN. STAT. § 15A-802. Under Rule 45, a person asked to produce
items may serve upon the party or the attorney designated in the
subpoena written objection to the subpoena. N.C. GEN. STAT. § 1A-1,
Rule 45. However, the objection to the subpoena must set forth the
specific grounds for the objection. Id. The objection must comply with
the requirements of Rule 11. See id. If an objection is made, the party
serving the subpoena may, upon notice to the subpoenaed person, move at
any time for an order to compel the production of the materials
designated in the subpoena. See id.

In your letter, you fail to list a grounds for objection other than
asserting discovery is not allowed in district court. Relying on State
v. Cornett, you argue there is no statutory right to discovery in
criminal cases originating in superior court. While this was a rule in
the case and part of the commentary to the N.C. criminal discovery
statute, you miss the issue currently presented. A subpoena duces tecum
is a separate entity from discovery. According the N.C. Court of
Appeals in Newell, "documents not subject to the criminal discovery
statute may still be subject to a subpoena duces tecum." 82 N.C. App.
at 708. A subpoena duces tecum is a means of producing specific items,
whereas discovery is more of a general request for the production of
evidence. See id.

The production of a specific video tape is distinguishable from the
production of discovery. In Cornett, the defendant moved for discovery
of numerous written protocols regarding Intoxylizer operation,
calibration, and measures. 177 N.C. App. 452, 455 (2006). Cornett is
distinguishable from the issue at hand because we are not moving for
discovery. We are asking for the production of a specific item
"patently material to the inquiry." Newell, 82 N.C. App. at 708. The
video of which we seek production may contain exculpatory evidence,
which by its nature is patently material to the inquiry.

Finally, your assertion that the State Highway Patrol will be unduly
burdened by requests from criminal defense attorneys for the production
of videos is unfounded. Until receiving your letter, we have always
received videos from the State Highway Patrol in a timely fashion.
Additionally, the Troopers we have spoken with concerning this issue
have agreed that the production of the videos is not a burden and is in
fact my clients' constitutional right.

Once again, because Troopers Dixson and Stevens have failed to comply,
and you have failed to move to quash within the statutorily allotted 10
days, I will be forced to file a motion to compel the production of the
patrol car tape, or in the alternative to have the Troopers held in
contempt of Court, unless you will instruct the trooper to comply with
State Law.