An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 
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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-
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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 
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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 
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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 
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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 
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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 
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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 
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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).