Appeal by defendant from judgment entered 31 January 2002 by
Judge Loto G. Caviness in Henderson County Superior Court. Heard
in the Court of Appeals 2 December 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Tina A. Krasner, for the State.
MILES & MONTGOMERY, by Mark Montgomery, for defendant-
appellant.
TIMMONS-GOODSON, Judge.
Michael Brian Johnson (“defendant”) appeals his conviction for
first-degree statutory sexual offense. For the reasons discussed
herein, we hold that defendant is entitled to a new trial.
On 9 July 2001, defendant was indicted for first-degree
statutory sexual offense. On 29 December 2002, defendant was also
charged with first-degree rape by a bill of information. Prior to
trial, defendant subpoenaed records compiled by the Henderson
County Department of Social Services (“DSS”) regarding the minor
victim, Kelly.
(See footnote 1)
DSS refused to provide defendant with Kelly's
file, and on 24 January 2002, moved the trial court to examine thefile in camera and redact certain information from the file. The
trial court judge subsequently conducted an in camera inspection of
the DSS file and determined that only a portion of the file was
“relevant to the criminal cause and the defenses presented.” The
trial judge provided that portion of the file to the parties and
thereafter sealed the remaining information of the DSS file in the
court file, to be reviewed by an appellate court were defendant to
appeal.
The case proceeded to trial. The State's evidence against
defendant consisted primarily of testimony by Kelly that defendant
had engaged in inappropriate sexual activities with her and opinion
testimony by two doctors who examined Kelly and concluded that
Kelly had been sexually abused. Defendant presented evidence
denying the charges. On 31 January 2002, the jury found defendant
guilty of first-degree statutory sex offense and guilty of rape of
a child under the age of thirteen. The trial court arrested
judgment on the rape charge and sentenced defendant to 288 to 355
months incarceration for the statutory sex offense charge.
Defendant appeals.
The dispositive issue on appeal is whether certain previously
undisclosed portions of the DSS file should have been provided to
defendant. Defendant argues that the undisclosed portions of the
file contained information favorable and material to his case. We
agree.
“[S]uppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence ismaterial 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). “Impeachment evidence
. . . as well as exculpatory evidence, falls within the
Brady
rule.”
United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d
481, 490 (1985).
See also Giglio v. United States, 405 U.S. 150,
154, 31 L. Ed. 2d 104, 108 (1972). In determining whether evidence
in the possession of the State should be disclosed to defendant,
“[a] judge is required to order an
in camera inspection and make
findings of fact concerning the evidence at issue only if there is
a possibility that such evidence might be material to guilt or
punishment and favorable to the defense.”
State v. Phillips, 328
N.C. 1, 18, 399 S.E.2d 293, 301 (1991). “But just because
defendant asks for an
in camera inspection does not automatically
entitle him to one. Defendant still must demonstrate that the
evidence sought to be disclosed might be material and favorable to
his defense.”
State v. Thompson, 139 N.C. App. 299, 307, 533
S.E.2d 834, 840 (2000).
“[A]lthough asking defendant to
affirmatively establish that a piece of evidence not in his
possession is material might be a circular impossibility, [this
Court] at least require[s] him to have a substantial basis for
believing such evidence is material.”
Id. at 307, 533 S.E.2d at
840. “[I]f the judge, after the
in camera examination, rules
against the defendant on his motion, the judge should order the
sealed statement placed in the record for appellate review.”
State
v. Hardy, 293 N.C. 105, 128, 235 S.E.2d 828, 842 (1977). In
State v. McGill, 141 N.C. App. 98, 101-02, 539 S.E.2d 351,
355 (2000) this Court concluded:
On appeal, this Court is required to examine
the sealed records to determine if they
contain information that is “both favorable to
the accused and material to [either his] guilt
or punishment.”
If the sealed records contain
evidence which is both “favorable” and
“material,” defendant is constitutionally
entitled to disclosure of this evidence.
(quoting
Pennsylvania v. Ritchie, 480 U.S. 39, 57, 94 L. Ed. 2d 40,
57 (1987)) (other citations omitted). “'Favorable' evidence
includes evidence which tends to exculpate the accused, as well as
'any evidence adversely affecting the credibility of the
government's witnesses.'”
McGill, 141 N.C. App. at 102, 539 S.E.2d
at 355 (quoting
United States v. Trevino, 89 F.3d 187, 189 (4
th Cir.
1996)). Evidence is “material” where “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.”
Bagley, 473 U.S. at 682, 87 L. Ed. 2d
at 494. Furthermore, “[a] defendant is not entitled to a new trial
based on trial errors unless such errors were material and
prejudicial.”
State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631,
644
(1983)
. The violation of a defendant's constitutional rights
is prejudicial unless this Court “finds that it was harmless beyond
a reasonable doubt.” N.C. Gen. Stat. § 15A-1443(b) (2003).
In the instant case, we have reviewed the DSS file sealed by
the trial court in order to determine if information contained
within the file is favorable and material to defendant's case.
After reviewing the sealed documents, we conclude that there isfavorable and material evidence in the file that should have been
provided to defendant for review prior to trial.
The DSS file presented to the trial court for
in camera
inspection is composed of over 100 pages. The file contains medical
documents, DSS case file documents, and various medical
correspondences, as well as an indication that Jeremy,
(See footnote 2)
Kelly's
older brother, may have sexually abused her.
According to the DSS file, Jeremy is a mentally disturbed and
troubled teen. Contained within the file is an intake report (“the
intake report”), completed by Henderson County Child Protective
Services employee T. Roberts (“Roberts”). The intake report states
that on the afternoon of 15 November 2000, one of Kelly's family
members contacted DSS because she was concerned for Kelly's safety.
Roberts spoke with the family member on the phone and completed the
intake report, marking the report for “immediate response.” The
family member stated that she believed that Jeremy was a threat to
Kelly and that Kelly should not be left alone with him. The family
member told Roberts that Jeremy is often left alone with Kelly and
that she fears Jeremy will harm Kelly, even if unintentionally.
The family member reported that Lee,
(See footnote 3)
the children's biological
mother, “leaves [Kelly] with [Jeremy] alone.” The family member
also reported that “[Jeremy] and a [seventeen-year-old] friend were
doing wrestling holds on [Kelly] and she would cry for severalhours.” The family member further reported that she believed “[Lee]
left [Kelly] alone with [Jeremy] while she went to look for
[defendant] at a bar last Saturday night.”
On the evening of 15 November 2000, Social Worker Patty Dalton
(“Dalton”), met with Jeremy and Lee. A copy of Dalton's report of
the meeting is contained within the DSS file. During their meeting,
Jeremy told Dalton that he had been sent to Eckerd Camp, a reform
school, because he had taken a dagger to his previous school.
Jeremy stated that he had been physically aggressive to his sister
and mother in the past. He also stated that he had physically
fought with his mother, but said it had not happened “in a while.”
He also admitted that he had wrestled with Kelly and that Kelly had
cried because he was “too rough with her.”
The DSS file also contains information tending to show that
Kelly had previously lied regarding her injuries. The file contains
a report regarding Kelly's case that was produced by Social Worker
M. Ballard (“Ballard”). On 22 March 2001, Kelly reported to Ballard
that Barbara
(See footnote 4)
, Kelly's stepmother, had “whipped” Kelly “two times”
while her father watched. Kelly stated that she had been “whipped”
for “[m]essin' with the baby chickens.” However, Ballard's report
states that the next day, Kelly informed Ballard that “she had lied
when she said she had gotten marks from a whipping at [her father]
and [Barbara's] house.” Kelly stated that “[her father and Barbara]had never hit her with a belt [and that] she doesn't know how she
got these marks.”
The State stresses in its brief that the DSS file offers “no
new material evidence on this point,” because Kelly's credibility
was sufficiently challenged at trial by testimony from Jeremy and
Lee. However, we note that Jeremy and Lee testified only to Kelly's
truthfulness in her interactions with her family. Jeremy and Lee
did not testify to Kelly's truthfulness in her interactions with the
social workers investigating her alleged abuse, a point we find
particularly germane to defendant's trial for first-degree statutory
sex offense.
The information in the DSS file most favorable to defendant's
case is the comments made by Lee indicating that she may have caused
some of Kelly's injuries, and that Jeremy may have sexually abused
Kelly. On 5 June 2001, Lee met with Social Worker G. Massicotte
(“Massicotte”) to discuss Kelly's Child Medical Evaluation (“CME”).
A copy of Massicotte's report is contained within the DSS file.
Massicotte reported that “[Lee] stated . . . that the scar mentioned
in the [CME] could possibl[y] be the result of [Lee] scratching
[Kelly] with her finger nail while [Lee] was putting ointment on
[Kelly] in the vagina area where the scar is located.” Lee also
stated to Massicotte that “there was a remote possibility that
[Jeremy] could have done something to [Kelly].” Lee told Massicotte
that “[Jeremy] would have a yeast infection at the same time [Kelly]
would have a yeast infection and that they would both clear up at
the same time.” In sum, the DSS file indicates that Jeremy has a history of
physical violence, that he and Kelly had yeast infections at the
same time, and that Lee left Jeremy and Kelly in the house alone on
several occasions. The file indicates that Kelly, the State's
leading witness against defendant, told a social worker that she had
lied in one of her previous meetings with the social worker. The
file also indicates that Lee believes she could have caused at least
one of Kelly's injuries herself, and that it is possible that Jeremy
had sexually abused Kelly.
Because the information contained within the DSS file provides
an alternative explanation for Kelly's abuse, we conclude that the
information contained within the file is favorable to defendant's
case. Furthermore, because we also conclude that the information
is sufficient to undermine the confidence in the outcome of the
trial, we further conclude that the information is material, in that
had the information been available for presentation at trial, a
“reasonable probability” exists that “the result of the proceeding
would have been different.”
Bagley,
473 U.S. at 682, 87 L. Ed. 2d
at 494. Therefore, because the information contained within the
file was favorable and material to defendant's case, we hold that
defendant was constitutionally entitled to disclosure of the
contents of the file, and that it was prejudicial error for the
trial court to refuse to disclose the information to defendant.
Accordingly, we reverse defendant's convictions and remand the case
for a new trial. Prior to defendant's trial on remand, the trial
court should disclose to defendant the information contained within
the DSS file. Reversed and remanded.
Judges WYNN and McCULLOUGH concur.
Footnote: 1