THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Don Lewis Hughes,        Appellant.

Appeal From Orangeburg County
Edward B. Cottingham, Circuit Court Judge

Unpublished Opinion No. 2005-UP-003
Submitted January 1, 2005 – Filed January 7, 2005

AFFIRMED

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Asst. Atty. General Norman Mark Rapoport, all of Columbia; and Solicitor Robert Douglas Robbins, of Summerville, for Respondents.

PER CURIAM:  Don Lewis Hughes (Hughes) appeals the trial court’s refusal to grant him a new trial.  We affirm. [1]

FACTS

Hughes was convicted of two counts of criminal sexual conduct with a minor in the second degree.  At trial, Crystal Tuck (Tuck), a child sexual abuse counselor who had counseled the victims, testified for the State.  During cross-examination, Tuck acknowledged that prior to testifying, she had reviewed her office notes to refresh her memory.  Defense counsel sought to inspect the notes, but Tuck did not have them with her.  Further, because the notes were in Columbia and the trial was in Orangeburg, the trial court refused to require Tuck to submit them.  

On appeal, this Court reversed, finding “the trial court erred in failing to exercise its discretion” under Rule 612, SCRE.  State v. Hughes, 346 S.C. 339, 552 S.E.2d 35 (Ct. App. 2001).  We held that under the plain language of Rule 612, SCRE, “the trial court has discretion to allow or refuse examination by an adverse party of writings used by a witness prior to trial to refresh his or her memory.”  Hughes, 346 S.C. at 342, 552 S.E.2d at 36.  Moreover, we stated, “‘When a trial judge is vested with discretion, but his ruling reveals no discretion was, in fact exercised, an error of law has occurred.’”  Id. (quoting Fontaine v. Peitz, 291 S.C. 536, 538-39, 354 S.E.2d 565, 566-57 (1987). 

Accordingly, we reversed “the trial court’s refusal to order Tuck to submit her notes and remand[ed] for an evidentiary hearing to determine whether Hughes was entitled to access to the notes as outlined in Rule 612.”  We instructed:  “If the trial court finds production of the notes was necessary in the interests of justice, and the denial of such access significantly impaired Hughes’s defense, it shall grant a new trial.”  Hughes, 246 S.C. at 343-44, 552 S.E.2d at 37.

On remand, the trial court stated:

The Court has reviewed the prior testimony and the notes of Crystal Tuck in detail.  As part of this hearing, Ms. Tuck was thoroughly examined by counsel for the State and Defense.   After careful consideration of the above information, this Court concludes that there is nothing in the notes of Ms. Tuck that would have assisted counsel in the defense of Mr. Hughes.

The Court does not find in the interest of justice, that this case should be remanded because there is simply nothing in these records that would assist defense counsel in her defense of Mr. Hughes.  The notes were consistent with the testimony of Ms. Tuck and nothing in the notes impaired or impeached the testimony of Shelly or Donna Hughes. 

LAW/ANALYSIS

Generally, the grant or refusal of a new trial is within the trial court’s discretion and will not be disturbed on appeal without a clear abuse of that discretion.  State v. Smith, 316 S.C. 53, 447 S.E.2d 175 (1993).  “An abuse of discretion occurs when a trial court’s decision is unsupported by the evidence or controlled by an error of law.”  State v. Garrett, 350 S.C. 613, 619, 567 S.E.2d 523, 526 (Ct. App. 2002).

Pursuant to this Court’s opinion, the trial court’s function was to determine whether the production of Tuck’s notes was necessary in the interests of justice, such that denial of access to the notes significantly impaired Hughes’s defense.  Rule 612, SCRE provides:

If a witness uses a writing to refresh memory for the purpose of testifying, either—

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. 

In a footnote, the Hughes court observed that other courts had looked at the following factors to determine the interest of the party seeking production: (1) the importance of the witness’s testimony; (2) the extent of the witness’s reliance on the notes; (3) the extent to which the writings might reveal a credibility problem; (4) whether credibility could be challenged some other way; and (5) whether there is evidence of a plan to use writings to influence the witness’s testimony and then resist production.  Hughes, 346 S.C. at 343-44 n.4, 552 S.E.2d at 37 n.4.

Hughes admits in his brief that the notes were “sparse forms that provided little substantive information about Tuck’s sessions with the children.”  Looking to the factors noted, we find Hughes’s interest in accessing Tuck’s notes was minimal.  There simply is little in the notes from which Tuck could have relied in giving her testimony.  As for credibility, the following exchange occurred at the remand hearing:

Moreover, Hughes was able to otherwise test Tuck’s credibility.  Hughes elicited that the victims were the only persons with direct personal knowledge of the abuse, and that Tuck’s expert diagnosis was only as good as the victims’ statements to Tuck.  Finally, there exists no evidence or allegation of a plan to use the notes to influence Tuck’s testimony and then resist production.  The trial court found, and we agree, that “there is nothing in the notes of Ms. Tuck that would have assisted counsel in the defense of Mr. Hughes.” 

The Hughes court gave further guidance on the factors other courts have employed to analyze the burden of production: (1) the extent of the materials sought; (2) whether such materials are privileged or attorney work product; (3) public policy; (4) conduct of the party seeking production; and (5) whether production would unduly delay the proceedings.  Hughes, 346 S.C. at 343-44 n.4, 552 S.E.2d at 37 n.4.

Production of Tuck’s notes would have delayed trial because the notes were in Columbia and the trial was in Orangeburg.  However, the burden on the State of producing these notes at some time during the trial was not great.  Nonetheless, the question of whether Hughes should be granted a new trial must be answered by considering all of these factors and by asking whether the denial of access to the notes significantly impaired Hughes’s defense.  Considering all of the factors, we find that Tuck’s notes would not have proved significant to Hughes’s defense.  Therefore, we hold that failure to require production of the notes did not significantly impair Hughes’s defense, and the trial court did not abuse its discretion in denying him a new trial. 

CONCLUSION

Because the benefits of the notes to Hughes are negligible, the trial court did not err in denying Hughes a new trial.  The court properly exercised discretion under Rule 612, SCRE, and its ruling is

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.