An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA14-384
                        NORTH CAROLINA COURT OF APPEALS

                              Filed:    4 November 2014


STATE OF NORTH CAROLINA

      v.                                       Craven County
                                               Nos. 11 CRS 54777, 13 CRS 132
HAROLD DEAN SMITH, JR.



      Appeal      by   the    State    by   writ   of    certiorari    from   order

entered 20 March 2013 by Judge Benjamin G. Alford in Craven

County     Superior     Court.        Heard   in   the    Court   of   Appeals    10

September 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Teresa M. Postell, for the State-appellant.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defenders Charlesena Elliott Walker and Katherine Jane
      Allen, for defendant-appellee.


      CALABRIA, Judge.


      The State appeals by writ of certiorari an order granting

Harold     Dean   Smith      Jr.’s    (“defendant”)      motion   to   obtain    the

prosecuting       witness’s      psychiatric       and   psychological     medical

records, requiring the State to interview and obtain a sworn
                                        -2-
statement       from    the    prosecuting witness           regarding      her   mental

health history.         We reverse.

       On 13 November 2011, defendant and his girlfriend Angela

Quinn (“Ms. Quinn”) argued at a home where they resided together

in New Bern, North Carolina.                   During the argument, defendant

allegedly set some bedding on fire.                       Both defendant and Ms.

Quinn were able to exit the residence before the fire spread to

other parts of the house.                  Defendant was subsequently arrested,

charged,    and    indicted          for    first   degree   arson    and    malicious

burning of personal property.

       In May 2012 and again in February 2013, defendant filed

pretrial motions for voluntary discovery, to which the State

timely responded.            On 11 March 2013, defendant filed a pretrial

“motion for disclosure of pyschiatric[sic]/psychological medical

records    of    prosecution         witness.”       In   this     motion,   defendant

alleged that Ms. Quinn, a witness for the prosecution and the

only    witness        to     the    alleged    crimes,      had    previously      told

defendant   that       she     had    participated     in    inpatient   psychiatric

treatment at Cherry Hospital.                  In addition, defendant believed

“[Ms. Quinn] was admitted . . . for psychiatric treatment after

the events that [gave] rise” to defendant’s charged offenses.

Defendant also alleged, inter alia, that “[b]ecause the mental

health and/or illness/defects of a witness is grounds for cross-
                                              -3-
examination,         the      Defendant        would    be     prejudiced       in     his

opportunity for effective confrontation and cross-examination if

he were not allowed access to the mental health records of the

complaining        witness[.]”         The    trial    court   granted     defendant’s

motion.       On 20 March 2013, the trial court ordered the district

attorney to, inter alia, “interview the Prosecuting Witness [Ms.

Quinn] to determine the names dates, [sic] and locations of all

voluntary and involuntary commitments over the past ten (10)

years[,]” and to provide                Ms. Quinn’s      sworn statement to the

defense       to     enable      defendant’s       counsel     to   “draw       Order(s)

directing all records be mailed to” the court for in camera

inspection and disclose to defendant’s counsel any favorable and

material evidence.

      On 25 March 2013, the State filed a motion for a temporary

stay,     a   petition        for     writ    of   supersedeas      and    a    writ    of

certiorari         with   this      Court.     This    Court   denied     the    State’s

petition for certiorari and dismissed the petitions for writ of

supersedeas and temporary stay on 30 April 2013.                       On 3 May 2013,

the State filed an application for a temporary stay, a petition

for writ of supersedeas, and a petition for writ of certiorari

with the Supreme Court of North Carolina.                      On 20 December 2013,

the     Supreme      Court       of   North     Carolina     allowed      the    State’s

application for temporary stay and writ of supersedeas.                                The
                            -4-
Supreme Court also allowed the State’s                  petition for writ of

certiorari for the limited purpose of remanding to this Court

for review of the trial court’s order following full briefing by

the parties.

    On appeal, the State argues that the trial court erred in

ordering the State to interview Ms. Quinn and have her provide a

sworn    statement      regarding        her      mental    health        treatment.

Specifically,    the    State     contends     that    it   does    not    have    any

information     regarding       Ms.     Quinn’s       mental   health        in    its

possession,     and    ordering       such   an    interview       amounts    to   an

investigation to locate evidence favorable to the defendant.                        We

agree.

    Generally, “a criminal defendant is entitled to potentially

exculpatory evidence[.]”          State v. Lynn, 157 N.C. App. 217, 220,

578 S.E.2d 628, 631 (2003).             “[S]uppression by the prosecution

of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.”     Brady v. Maryland, 373 U.S. 83, 87, 10 L.Ed.2d

215, 218 (1963).         The State’s duty to disclose “encompasses

impeachment evidence as well as exculpatory evidence.”                       State v.

Holadia, 149 N.C. App. 248, 256, 561 S.E.2d 514, 520 (2002)

(citing United States v. Bagley, 473 U.S. 667, 676, 87 L.Ed.2d
                               -5-
481, 490 (1985)).

         [I]mpeachment evidence may include evidence
         that a witness suffers from a serious
         psychiatric   or   mental   illness.      The
         rationale behind allowing impeachment by
         evidence of prior treatment for psychiatric
         problems is that although “instances of . .
         .   mental  instability   are  not   directly
         probative of truthfulness, they may bear
         upon credibility in other ways, such as to
         cast doubt upon the capacity of a witness to
         observe, recollect, and recount[.]”

Lynn, 157 N.C. App. at 220-21, 578 S.E.2d at 631 (quoting State

v. Williams, 330 N.C. 711, 719, 412 S.E.2d 359, 364 (1992)).

    N.C. Gen. Stat. § 15A-903 provides, in pertinent part, that

upon a defendant’s motion, the court must order:

         (1) The State to make available to the
         defendant the complete files of all law
         enforcement      agencies,      investigatory
         agencies, and prosecutors’ offices involved
         in the investigation of the crimes committed
         or the prosecution of the defendant.

         a. The term “file” includes the defendant’s
         statements, the codefendants’ statements,
         witness statements, investigating officers’
         notes, results of tests and examinations, or
         any other matter or evidence obtained during
         the investigation of the offenses alleged to
         have been committed by the defendant.    When
         any matter or evidence is submitted for
         testing or examination, in addition to any
         test or examination results, all other data,
         calculations, or writings of any kind shall
         be   made   available   to   the   defendant,
         including, but not limited to, preliminary
         test or screening results and bench notes.

N.C. Gen. Stat. § 15A-903(a) (2013).    “The State, however, is
                             -6-
under a duty to disclose only those matters in its possession

and is not required to conduct an independent investigation to

locate evidence favorable to a defendant.”                     State v. Foushee,

___ N.C. App. ___, ___, 758 S.E.2d 47, 52                 (2014) (citation and

internal quotations omitted).               “[W]e note that this Court has

interpreted      the    provisions     of     Section     15A-903         to   require

production by the State of            already existing documents.                       The

statute imposes no duty on the State to create or continue to

develop     additional    documentation       regarding    an        investigation.”

State v. Dorman, ___ N.C. App. ___, ___, 737 S.E.2d 452, 471

(2013) (citation omitted).

      The    State     relies,   in    part,       on   Lynn    to       support        its

contention      that   the   State     is    not    required        to    conduct        an

additional      investigation    to    locate      evidence         favorable      to    a

defendant.      In Lynn, the defendant shot his girlfriend’s husband

several times while the husband slept.                  157 N.C. App. at 218,

578 S.E.2d at 630.        The defendant was arrested and charged with

conspiracy to commit first degree murder, attempted first degree

murder, and assault with a deadly weapon with intent to kill.

Id.       The   defendant    made     an     unsuccessful       pretrial        motion

requesting the trial court to “order the State to conduct an

inquiry to determine who, if anyone, had previously treated [the

defendant’s       girlfriend]        for     emotional         or        psychological
                                   -7-
problems.”        Id. at 219, 578 S.E.2d at 631.                 This Court found

that the defendant failed to allege that information about the

girlfriend’s mental health was either in the State’s possession

or in the possession of persons acting on the State’s behalf,

and the denial of the defendant’s motion did not prevent him

from exploring the issue at trial.                  Id. at 222, 578 S.E.2d at

632.     Therefore, “the trial court did not err by denying [the]

defendant’s pretrial motion to require the State to investigate

in     order   to     learn     the    identities        of   any    mental    health

professionals with whom [the girlfriend] had previously sought

treatment.”       Id. at 223, 578 S.E.2d at 633.

       In   the     instant    case,   in    his   pretrial      motion,   defendant

requested      an     order     from   the    trial      court      “commanding    the

prosecution to inquire of the complaining witness . . . as to

the identities and contact information of any and all mental

health and medical professionals and requiring the disclosure of

any and all mental health and related medical records of the

complaining         witness    .   .   .     to    the    defense[.]”         In   the

alternative, defendant requested that the trial court conduct an

in camera inspection of Ms. Quinn’s mental health and related

medical records and disclose to the defense any favorable and

material evidence.            Defendant did not allege that the requested

information was in the State’s possession, nor did he allege
                              -8-
that it was in the possession of anyone acting on behalf of the

State.         On    appeal,       defendant    acknowledges          that    the     request

presented in his motion is substantially similar to the pretrial

motion in Lynn, and concedes that he is unable to distinguish

his motion in any meaningful way from the motion in Lynn.

       Although        the    trial    court       specifically        found     that     the

district attorney did not have the records of Ms. Quinn’s mental

health treatment in her possession, and had only learned of Ms.

Quinn’s        mental    health       treatment       after       defendant     filed     his

pretrial       motion,       the   trial     court    granted      defendant’s        motion.

However,       the    State    “is    under    a     duty    to   disclose      only    those

matters in its possession and is not required to conduct an

independent          investigation      to     locate       evidence    favorable       to   a

defendant.”           Foushee, ___ N.C. App. at ___, 758 S.E.2d at 52

(citation and internal quotations omitted).                            Therefore, since

the    State     did    not    have    Ms.     Quinn’s       mental    health       treatment

records in its possession, nor did it have any notice that Ms.

Quinn had participated in mental health treatment until after

defendant had filed his pretrial motion, we hold that the State

does     not     have    a    duty     “to     create       or    continue     to    develop

additional documentation regarding an investigation[,]”                               Dorman,

___ N.C. App. at ___, 737 S.E.2d at 471, and the denial of

defendant’s motion will not prevent him from exploring the issue
                              -9-
at trial.   Lynn, 157 N.C. App. at 222, 578 S.E.2d at 632.   We

therefore reverse the trial court’s order.

    Reversed.

    Judges ELMORE and STEPHENS concur.

    Report per Rule 30(e).
