IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-34

No. COA20-740

Filed 18 January 2022

Rockingham County, 11CRS50300, 11CRS50301, 11CRS50518, 11CRS50124

STATE OF NORTH CAROLINA

v.

FRANK CATALDO

Appeal by Defendant from order entered 17 June 2019 by Judge Edwin G. 

Wilson, Jr., in Rockingham County Superior Court. Heard in the Court of Appeals 8

September 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri 

Horner Lawrence, for the State-Appellee. 

North Carolina Prisoner Legal Services, Inc., by Christopher J. Heaney, for 

Defendant-Appellant.

COLLINS, Judge.

¶ 1 Defendant appeals an order wherein the trial court concluded that certain 

sealed child protective services records obtained by the trial court and reviewed in 

camera during post-conviction discovery were immaterial to Defendant’s defense and 

denied Defendant’s request for access to those records and a new trial. Because the 

trial court impermissibly narrowed the scope of its post-conviction discovery orders, 

the trial court failed to comply with this Court’s mandate in State v. Cataldo, 261
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Opinion of the Court

N.C. App. 538, 818 S.E.2d 203, WL 4441414 (2018) (unpublished) (“Cataldo II”). We 

reverse the trial court’s order and remand for post-conviction discovery orders and an

in camera review of the records at issue, in accordance with Cataldo II.

I. Procedural Background

¶ 2 On 8 May 2013, following a trial, a jury found Defendant guilty of two counts 

of statutory sex offense and one count of statutory rape of T.B., a minor.1 The trial 

court consolidated the two statutory sex offense convictions and entered judgment, 

sentencing Defendant to consecutive prison terms of 240 to 297 months for statutory 

sex offense and 240 to 297 months for statutory rape. Defendant appealed. By

opinion filed 3 June 2014, this Court found no error in the proceeding below. State v. 

Cataldo, 234 N.C. App. 329, 762 S.E.2d 2, WL 2507788 (2014) (unpublished)

(“Cataldo I”). 

¶ 3 On 7 July 2015, Defendant filed in the trial court a motion for appropriate 

relief (“MAR”) and a motion for post-conviction discovery. In his MAR, Defendant

alleged that he had received ineffective assistance of counsel because his “trial 

counsel did not request an in camera review of DSS records about the complainant’s 

prior allegations of sexual abuse,” and “[a]s a result, trial counsel failed to discover 

exculpatory and impeachment evidence that would have greatly aided [Defendant’s] 

 

1 The transcript indicates that the jury found Defendant not guilty of one other count 

of statutory rape.
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Opinion of the Court

defense.”

¶ 4 Defendant relied on Pennsylvania v. Ritchie, 480 U.S. 39 (1987), to support his 

argument. In Ritchie, the defendant was charged with various sex offenses against 

a minor and sought disclosure of the victim’s child protective services records in order 

to raise a defense. In a plurality decision, the United States Supreme Court stated, 

“It is well settled that the government has the obligation to turn over evidence in its 

possession that is both favorable to the accused and material to guilt or punishment.” 

Id. at 57 (citations omitted). “[E]vidence is material only if there is a reasonable 

probability that, had the evidence been disclosed to the defense, the result of the 

proceeding would have been different. A ‘reasonable probability’ is a probability 

sufficient to undermine confidence in the outcome.” Id. (citation omitted). The Court 

concluded that the defendant was “entitled to know whether the [child protective 

services] file contains information that may have changed the outcome of his trial had 

it been disclosed[,]” and remanded for an in camera review of the file. Id. at 61.

¶ 5 Defendant alleged in his MAR that before accusing Defendant, “T.B. made 

multiple allegations of sexual abuse against family members that were investigated 

by DSS and determined to be unfounded,” including: “a previous DSS investigation 

when T.B. was four years old regarding T.B. being sexually abused by her biological 

father and by a neighbor”; accusations made in 2008 against her biological father for

sexually abusing her; and accusations made in 2009 against her uncle for sexually 
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Opinion of the Court

abusing her. Defendant argued that T.B.’s “history of making false allegations of 

sexual abuse” was “directly relevant to the credibility of her claims against 

[Defendant].” Defendant requested the trial court “order post-conviction discovery 

from the State so he may review the materials, continue post-conviction investigation, 

and amend his [MAR].” 

¶ 6 In his motion for post-conviction discovery, Defendant requested that the trial 

court order Rockingham Department of Health and Human Services (“Rockingham 

DHHS”) and Guilford County Department of Social Services (“Guilford DSS”) “to turn 

over all records, including medical and mental health records, concerning [T.B.] . . .

to the Court for in camera review” and order Kim Madden, a psychiatrist who 

interviewed T.B. in January 2011, “to turn over all notes and/or reports concerning 

her treatment of T.B. for an in camera review,” pursuant to Ritchie. 

¶ 7 The State filed an answer to Defendant’s MAR, arguing that it should be 

denied. Defendant moved to stay a decision on his MAR until he received and had an 

opportunity to review post-conviction discovery materials. The trial court entered an 

order on 5 October 2016 denying Defendant’s motion to stay a decision on his MAR, 

his MAR, and his motion for post-conviction discovery. 

¶ 8 Defendant filed a petition for writ of certiorari with this Court, seeking review 

of the 5 October 2016 order. This Court granted certiorari. By opinion filed 18 

September 2018, this Court reversed the denials of Defendant’s MAR and motion for 
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Opinion of the Court

post-conviction discovery stating,

Our precedent, as well as that of Ritchie, is clear. The DSS 

records sought by defendant, if in fact they exist, may have 

permitted him to confront and impeach T.B. Defendant 

could not be expected to present a showing of this evidence 

prior to it being released. Its materiality, however, is 

questionable. Do the records exist? Do they show what 

defendant contends? These are matters best suited to an 

in camera review. . . .

[W]e hold that [D]efendant made the requisite showing to 

support his motion for post-conviction discovery, and that 

the trial court erred in denying it. We therefore reverse the 

trial court’s order, and remand for an in camera review of 

the DSS records at issue. Should the trial court determine 

that these records are in fact material, and would have 

changed the outcome of defendant’s trial, [D]efendant 

should be granted a new trial.

Cataldo II, WL 4441414 at *11-12 (citations omitted). 

¶ 9 Upon remand, the State, through Rockingham DHHS, provided the trial court 

“with the complete files of Rockingham DHHS, as they pertain to this matter.” The 

trial court held a hearing on the matter and entered an Order Post-Conviction 

Discovery on 18 December 2018 (“Rockingham Order”), in which it found, in relevant 

part:

9. This Court has reviewed the records provided by the 

State through Rockingham DHHS and finds that the file 

does not contain any records “at issue” as requested by 

[D]efendant in his post-conviction motion for discovery and 

as described by the Court of Appeals. The records at issue 

are records regarding T.B.’s allegations of prior abuse by 

her father from 2000-2001, and again in 2008, and by her 
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Opinion of the Court

uncle in 2009. 

10. This Court does find that the records provided 

contain references to the records at issue, but they do not 

provide the substance of those records and this Court is 

unable to complete its in camera review as Ordered by the 

Court of Appeals until it receives the appropriate records.

¶ 10 Upon its findings, the trial court concluded and ordered that Rockingham 

DHHS “shall make available to this Court the DSS records at issue, specifically 

records regarding T.B.’s allegations of prior abuse by her father from 2000-2001, and 

again in 2008, and by her uncle in 2009.” 

¶ 11 Subsequently, the trial court and the parties exchanged emails regarding the 

scope of the Rockingham Order. Specifically, Defendant contended that the 

Rockingham Order’s time ranges were too narrow, and that it failed to request both 

the files related to allegations made by T.B. against Defendant himself or unknown 

others, and the documents from Kim Madden regarding her treatment of T.B. The 

trial court declined to modify the Rockingham Order in response to Defendant’s

contentions, explaining that “the Court of Appeals was clear the remand was for a 

review of DSS records.”

¶ 12 In response to the Rockingham Order, Rockingham DHHS sent a letter to the 

trial court, indicating that it “did not respond to any abuse, neglect or dependency 

reports regarding the victim child in 2000-2001, 2008, or 2009.” However, the letter 

advised that the Central Registry “indicate[d] that the Guilford . . . [DSS] responded 
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Opinion of the Court

to abuse and/or neglect reports on the victim child on or around these time periods.” 

The letter also indicated that Rockingham DHHS investigated a situation regarding

T.B. in 2004, during which Guilford DSS had provided it with records from its 

involvement with the family in 2001 and 2002. Copies of the Guilford DSS records 

from 2001 and 2002 were attached to the letter.

¶ 13 The trial court entered an Order Post-Conviction Discovery Guilford DSS on 

18 February 2019 (“Guilford Order”), finding in part:

This Court has reviewed the Guilford County DSS records 

provided by [Rockingham] DHHS and finds they do not 

contain any records described by the Court of Appeals 

regarding T.B.’s allegations of prior abuse in 2008 or 2009. 

This Court is unable to complete its in camera review as 

Ordered by the Court of Appeals until it receives the 

appropriate records.

¶ 14 The trial court thus ordered Guilford DSS to “make available to this [c]ourt the 

DSS records at issue, specifically records regarding T.B.’s allegations of prior abuse 

from 2000-2001, 2008, and 2009.” 

¶ 15 The trial court entered an Order on Remand Defendant’s Motion for PostConviction Discovery (“Order on Remand”) on 17 June 2019. The trial court found, 

in pertinent part, that it had “conducted an in camera review of the records provided 

by [Guilford] DSS as directed by the Court of Appeals and observed that the records 

contained documentation related to allegations of prior abuse occurring on or around 

the dates noted in the Opinion of the Court of Appeals.” 
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Opinion of the Court

¶ 16 The trial court concluded, in relevant part:

23. Having conducted an in camera review of the records 

provided by [Guilford DSS], this Court concludes that, in 

the context of the entire record, there is not a reasonable 

probability that the outcome of defendant’s trial would 

have been different had he been able to access these 

records. As such, the records of T.B.’s prior allegations of 

abuse are not material to the defense.

24. Defendant, therefore, is not entitled to have access 

to the records of T.B.’s prior allegations of abuse and is not 

entitled to a new trial.

¶ 17 The trial court denied Defendant’s Motion for Post-Conviction Discovery and 

ordered the records reviewed be sealed and placed in the record for appellate review,

in accordance with State v. Hardy, 293 N.C. 105, 128, 235 S.E.2d 828, 842 (1977). 

¶ 18 Defendant filed a petition for writ of certiorari with this Court on 29 May 2020. 

This Court allowed the petition “for purposes of reviewing Judge Edwin G. Wilson, 

Jr.’s, 17 June 2019 order denying [Defendant’s] motion for post-conviction discovery 

upon the in camera review ordered by this Court in [Cataldo II].”

II. Discussion

A. Scope of post-conviction discovery orders

¶ 19 Defendant argues that the trial court erred on remand by impermissibly 

narrowing the scope of its post-conviction discovery orders to Rockingham DHHS and 

Guilford DSS, such that the trial court failed to conduct a sufficient in camera review 

of relevant records, as mandated by this Court in Cataldo II. We agree.
STATE V. CATALDO

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Opinion of the Court

¶ 20 “The general rule is that an inferior court must follow the mandate of an 

appellate court in a case without variation or departure.” Condellone v. Condellone, 

137 N.C. App. 547, 551, 528 S.E.2d 639, 642 (2000) (quoting Metts v. Piver, 102 N.C. 

App. 98, 100, 401 S.E.2d 407, 408 (1991)); see, e.g., Creech v. Melnik, 147 N.C. App. 

471, 473-74, 556 S.E.2d 587, 589 (2001) (“Under the law of the case doctrine, an 

appellate court ruling on a question governs the resolution of that question both in 

subsequent proceedings in the trial court and on a subsequent appeal, provided the 

same facts and the same questions, which were determined in the previous appeal, 

are involved in the second appeal.”).

¶ 21 In the Factual and Procedural Background of Cataldo II, this Court explained

that Defendant had filed an MAR on 7 July 2015 in which

Defendant alleged that T.B.’s father had been accused of 

sexually abusing her from 2000 to 2001, and again in 2008, 

and that she had accused her uncle of sexually abusing her 

in 2009. He argued that he received ineffective assistance 

of counsel at trial, due to (1) counsel’s failure to subpoena 

T.B.’s DSS records regarding prior claims of abuse; (2) 

counsel’s failure to cross-examine T.B.’s therapist 

regarding prior claims of abuse; and (3) counsel’s failure to 

impeach T.B. regarding her prior claims of abuse. That

same day, [D]efendant filed a motion for post-conviction 

discovery, seeking an in camera review of T.B.’s DSS 

records regarding prior claims of abuse.

Cataldo II, WL 4441414 at *2. This Court then addressed the trial court’s denial of 

Defendant’s MAR as follows:
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Opinion of the Court

[D]efendant contends that the trial court erred in denying 

his MAR because he made a plausible showing that 

material, favorable DSS records exist. We agree.

. . . .

Our precedent in [State v. Taylor, 327 N.C. 147, 393 S.E.2d 

801 (1990), and State v. Hardy, 293 N.C. 105, 235 S.E.2d 

828 (1977)], as well as that of Ritchie, is clear. The DSS 

records sought by [D]efendant, if in fact they exist, may 

have permitted him to confront and impeach T.B. 

Defendant could not be expected to present a showing of 

this evidence prior to it being released. Its materiality, 

however, is questionable. Do the records exist? Do they 

show what defendant contends? These are matters best 

suited to an in camera review. See Ritchie, 480 U.S. at 61, 

94 L. Ed. 2d at 60 (concluding that in camera review by the 

trial court would serve the defendant’s interest while also 

protecting the confidentiality of individuals involved in 

child-abuse investigations).

In accordance with all of this precedent, we hold that

[D]efendant made the requisite showing to support his 

motion for post-conviction discovery, and that the trial 

court erred in denying it. We therefore reverse the trial 

court’s order, and remand for an in camera review of the 

DSS records at issue. Should the trial court determine that 

these records are in fact material, and would have changed 

the outcome of [D]efendant’s trial, [D]efendant should be 

granted a new trial.

Cataldo II, WL 4441414 at *3-4.

¶ 22 At issue is the proper scope of “the DSS records at issue” in this Court’s

directive to the trial court. Id. at *5.

¶ 23 Defendant argues that his original request was for Rockingham DHHS and 

Guilford DSS to produce “all records, including medical and mental health records, 
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Opinion of the Court

concerning [T.B.] . . . for in camera review[,]” and this request “defined the requisite 

scope of the DSS records at issue on remand.” Thus, Defendant argues, the trial court 

erred in limiting the scope of review to the specified time periods and excluding any 

records of Rockingham DHHS’s investigation in 2004, any allegations by T.B. against 

Defendant in 2006 or 2007, and any other relevant social services records.

¶ 24 In its Rockingham Order, the trial court found and concluded that “[t]he 

records at issue are records regarding T.B.’s allegations of prior abuse by her father 

from 2000-2001, and again in 2008, and by her uncle in 2009.” Similarly, in its 

Guilford Order, the trial court concluded “the DSS records at issue” are “records

regarding T.B.’s allegations of prior abuse from 2000-2001, 2008, and 2009.” In its 

Order on Remand, the trial court noted the limited scope of its review, finding that 

“[i]n response to the Order of the Court of Appeals, this [c]ourt ordered [Rockingham] 

DHHS to provide the [c]ourt with the records described by the Court of Appeals, 

specifically regarding T.B.’s allegations of prior abuse in 2000-2001, 2008, and 2009.” 

The trial court also found that it “ordered [Guilford] DSS to make available to [the 

court] the DSS records at issue, specifically those related to T.B.’s allegations of prior 

abuse from 2000-2001, 2008, and 2009[.]” 

¶ 25 In Cataldo II, as quoted above, this Court mentioned these specific time 

periods in the Factual and Procedural Background of the opinion, describing specific 

allegations of abuse asserted in Defendant’s MAR as grounds for Defendant’s 
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Opinion of the Court

ineffective assistance of counsel claims. This Court, with a general reference to T.B.’s 

prior allegations of sexual abuse investigated by social services, then summarized 

Defendant’s argument on appeal as “he was entitled to an in camera review and the 

disclosure of these DSS documents proving that T.B. has falsely accused others of 

sexual abuse.” Cataldo II, WL 4441414 at *2-3. However, in describing Defendant’s 

motion for post-conviction discovery – the main issue ultimately decided in Cataldo 

II – this Court described the motion as “seeking an in camera review of T.B.’s DSS 

records regarding prior claims of abuse.” Id. at *2. 

¶ 26 In his motion for post-conviction discovery, while Defendant referenced 

allegations from the specific time periods, Defendant’s request for discovery of DSS 

records was not limited to those time periods. Defendant argued that he “should be 

granted an in camera review of all DSS records concerning T.B.” and requested the 

trial court order Rockingham DHHS and Guilford DSS “to turn over all records, 

including medical and mental health records, concerning [T.B.] to the [c]ourt for in 

camera review[.]”

¶ 27 In support of its holding that “[D]efendant made the requisite showing to 

support his motion for post-conviction discovery, and that the trial court erred in 

denying it[,]” this Court reasoned that “[t]he DSS records sought by [D]efendant, if in 

fact they exist, may have permitted him to confront and impeach T.B. Defendant 

could not be expected to present a showing of this evidence prior to it being released.”
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2022-NCCOA-34

Opinion of the Court

Id. at *4-5. This reasoning applies to all DSS records sought by Defendant in his 

motion for post-conviction discovery regarding T.B.’s prior allegations of sexual 

abuse, not just those specific instances identified by Defendant without access to the 

records. The in camera review is designed to safeguard Defendant’s due process right 

to evidence favorable and material to his guilt or punishment. Ritchie, 480 U.S. at 

57.

¶ 28 Based on Defendant’s motion for post-conviction discovery seeking all 

Rockingham DHHS and Guilford County DSS records regarding T.B. and this Court’s 

language in Cataldo II ordering in camera review of the DSS records at issue, the 

trial court erred by impermissibly narrowing the scope of its post-conviction discovery 

orders to Rockingham DHHS and Guilford DSS, such that the trial court failed to 

conduct a sufficient in camera review of relevant records, as mandated by this Court 

in Cataldo II. 

¶ 29 Accordingly, we reverse the trial court’s order and remand for post-conviction 

discovery orders of proper scope and in camera review of “T.B.’s DSS records 

regarding prior claims of abuse.” Cataldo II, WL 4441414 at *2.

B. In camera review on appeal

¶ 30 Defendant also asks this Court to review the social services records already 

reviewed by the trial court to determine whether they contain exculpatory 

information that would be favorable and material to his defense. We decline to review 
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Opinion of the Court

the records until all of the relevant records have been requested and reviewed in 

camera by the trial court. In light of our holding, we need not reach any remaining

arguments.2

III. Conclusion

¶ 31 The trial court erred when it impermissibly narrowed the scope of its orders to 

Rockingham DHHS and Guilford DSS to include only records regarding allegations 

of events during certain time periods and against certain persons. Accordingly, we 

reverse the trial court’s order and remand to the trial court with instructions to order 

Rockingham DHHS and Guilford DSS to produce T.B.’s social services records 

“regarding prior claims of abuse.” Id. 

¶ 32 Upon receipt and in camera review of the records, should the trial court 

determine that the records are in fact material, Defendant should be granted a new 

trial. See id. at *5.

REVERSED AND REMANDED.

Judge JACKSON concurs. 

Judge ARROWOOD dissents by separate opinion. 

 

2 Defendant also argues that he is entitled to post-conviction discovery under N.C. 

Gen. Stat. § 15A-1415(f) and that the trial court erred when it failed to order production of 

such discovery by the State. We are uncertain what discovery Defendant believes he is 

entitled to beyond the scope of the issues decided in this opinion.
No. COA20-740 – State v. Cataldo

ARROWOOD, Judge, dissenting.

¶ 33 I respectfully dissent from the majority’s holding that the trial court failed to 

comply with this Court’s mandate as set out in State v. Cataldo, 261 N.C. App. 538, 

818 S.E.2d 203 (2018) (unpublished) (“Cataldo II”). I sat on the panel that decided 

Cataldo II and concurred in that opinion, and I believe the trial court complied with 

Cataldo II. I vote to affirm the trial court’s order, and respectfully dissent.

¶ 34 In defendant’s motion for post-conviction discovery, defendant alleged the 

following:

A review of the State’s discovery materials contained in the 

file indicates that there are Department of Social Services

records regarding T.B.’s past allegations of sexual abuse 

against other people that were determined to be unfounded 

by DSS. Additionally, there are records concerning T.B.’s 

work with counselor Kim Madden that are likely to contain 

information helpful for the defense.

Defendant’s factual allegations included three subsections, describing T.B.’s 

allegations of sexual abuse against her father in 2000-2001, again in 2008, and 

against her uncle in 2009. After highlighting the allegations made during these 

relevant periods, defendant argued that he “should be granted an in camera review 

of all DSS records concerning T.B.”

¶ 35 In Cataldo II, this Court addressed defendant’s contention “that he was 

entitled to an in camera review and the disclosure of these DSS documents proving 

that T.B. had falsely accused others of sexual abuse.” 261 N.C. App. 538, 818 S.E.2d 

203 at *8 (emphasis added). After concluding that the trial court erred in denying 
STATE V. CATALDO

2022-NCCOA-34

ARROWOOD, J., dissenting

defendant’s motion for post-conviction discovery, we directed the trial court to conduct 

“an in camera review of the DSS records at issue[,]” and if the trial court 

“determine[d] that these records [were] in fact material, and would have changed the 

outcome of defendant’s trial,” the trial court should grant defendant a new trial. Id.

at *12.

¶ 36 On 18 December 2018, the trial court entered an order for post-conviction 

discovery with respect to Rockingham County DSS records. In the order, the trial 

court made the following relevant findings:

9. This Court has reviewed the records provided by the 

State through Rockingham DHHS and finds that the 

file does not contain any records regarding the DSS 

records “at issue” as requested by defendant in his 

post-conviction motion for discovery and as described 

by the Court of Appeals. The records at issue are 

records regarding T.B.’s allegations of prior abuse by 

her father from 2000-2001, and again in 2008, and by 

her uncle in 2009. The allegations of prior abuse are 

alleged to have occurred in North Carolina.

10. This Court does find that the records provided contain 

references to the records at issue, but they do not 

provide the substance of those records and this Court 

is unable to complete its in camera review as Ordered 

by the Court of Appeals until it receives the 

appropriate records.

On 18 February 2019, the trial court entered a similar order with respect to Guilford 

County DSS records, ordering the State to furnish complete records for the 

aforementioned time periods.
STATE V. CATALDO

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ARROWOOD, J., dissenting

¶ 37 The issue on appeal is whether the trial court properly determined the scope 

of “the DSS records at issue” as directed by this Court in Cataldo II. In Cataldo II, 

we answered the question of whether defendant was entitled to an in camera review 

and disclosure of DSS documents “proving that T.B. had falsely accused others of 

sexual abuse.” Id. at *8. Although defendant’s MAR did request “an in camera review 

of all DSS records concerning T.B.[,]” Cataldo II did not grant an in camera review of 

all DSS records concerning T.B., instead limiting the review to documents related to 

T.B.’s allegations against others. Id. This scope aligns with defendant’s MAR, which 

specifically described three sets of allegations in 2000-2001, 2008, and 2009. I believe 

that the scope of “the DSS records at issue” is limited by the argument presented in 

defendant’s MAR and encompasses DSS records pertaining to T.B.’s allegations 

against others in 2000-2001, 2008, and 2009.

¶ 38 Notably, the trial court entered two orders requiring the State to furnish 

additional records prior to completing the in camera review. The trial court 

recognized that the in camera review, as mandated by Cataldo II, required the 

production of specific records, but that the in camera review was limited in scope. 

After obtaining the relevant records at issue, the trial court conducted its in camera 

review and properly determined that the records of T.B.’s prior allegations of abuse 

were not material to the defense. The trial court complied with Cataldo II by 

conducting an in camera review of DSS records from these relevant time periods.
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2022-NCCOA-34

ARROWOOD, J., dissenting

¶ 39 I believe the majority has misapprehended the holding and mandate set out in 

Cataldo II, and I vote to affirm the trial court’s order. I respectfully dissent.