State v. Jones , 23 N.C. App. 686 ( 1974 )

BALEY, Judge.

Defendant contends that the court should have allowed his motions for a directed verdict of not guilty upon all charges. He bases this contention on two grounds: (1) that there is no evidence that he fired at any particular officer and (2) that he fired a .16 gauge automatic shotgun when the indictment charges that he used a .16 gauge automatic rifle. The distinction between a rifle and a shotgun as the firearm involved is not a material variance. The indictments charged assault with a firearm, and clearly an automatic shotgun comes within that classification. See State v. Banks, 271 N.C. 583, 157 S.E. 2d 145; State v. Dunlap, 16 N.C. App. 176, 191 S.E. 2d 385. Testimony from all the officers who were engaged in the performance of their duty on this occasion showed that defendant shot at them. He took pistols and a shotgun from officers Sasser and Warrick, who were first on the scene, and fired at the cars in which other officers were seated as well as at ditches where they had taken cover. Officer Melvin was wounded in the leg. It seems clear that the evidence in its most favorable light for the State was sufficient to show every element of the offenses charged and to support the jury verdicts. The motions for a directed verdict were properly denied.

Defendant assigns as error the refusal of the court to permit cross-examination of two of the officers about written reports which they had filed after their investigation. He now contends that he was entitled to examine these reports for possible inconsistencies with the testimony offered at trial. First of all, the questions asked and the answers placed in the record do not relate to any inconsistency in testimony. Defendant has suffered no prejudice from their exclusion as evidence. Second, the record does not disclose any request for examination of the reports at the trial nor any pretrial motion setting out any reasonable ground for their production. Reports of investigating officers are the work product of the prosecution, and there is no constitutional right to their examination.

“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.”

Moore v. Illinois, 408 U.S. 786, 795 (1972). As the North Carolina Supreme Court stated so succinctly in State v. Davis, 282 N.C. 107, 111, 191 S.E. 2d 664, 667: “Defendant was not entitled to ... a fishing expedition nor to receive the work product of police or State investigators.” See also State v. Blue, 20 N.C. App. 386, 201 S.E. 2d 548.

The claim of defendant that the court should have instructed the jury upon a lesser included offense in connection with the charge of armed robbery is without merit. All the evidence indicates that defendant was the original aggressor and deprived the officers of their weapons at the point of a shotgun. The fact that defendant later had a change of heart and returned the weapons may have some bearing upon punishment, but it does not reduce the original armed robbery to a lesser offense. The necessity for charging on the crime of a lesser degree arises only when there is evidence from which the jury could find that a crime of lesser degree was committed. State v. Davis, supra; State v. Bryant, 280 N.C. 551, 187 S.E. 2d 111, cert. denied, 409 U.S. 995 (1972).

Other assignments of error pertain to the charge of the court. We have carefully reviewed the charge and conclude that when it is considered in its entirety it complies with the statute and is free from prejudicial error.

In the trial of this cause, we find no error.

No error.

Judges Morris and Hedrick concur.