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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. TORRIANO THOMPSON
Filed: 4 December 2007
1. Identification of Defendants--spontaneous in-court identification--motion to
The trial court did not err in a first-degree murder prosecution by denying defendant's
motion to suppress an identification made by a witness who immediately said That's the guy...
when defendant was brought into court. The trial court's conclusions were supported by its
findings: the witness had seen the shooter before the crime, she had ample opportunity to see him
at the crime, and no one had suggested to her that she should identify anyone in court.
2. Criminal Law--continuance denied--preparation for cross-examination
The trial court did not err in a first-degree murder prosecution by denying defendant's
motion for a continuance to prepare for cross-examination of a witness who identified defendant
as he was brought into the courtroom. Defendant had almost three years to prepare for the
possibility that this person, the only eyewitness, might identify him. Also, defendant vigorously
cross-examined the witness.
3. Criminal Law--continuance denied--preparation for cross-examination
The trial court did not err in a first-degree murder prosecution by denying a defendant's
motion for a continuance to prepare for the cross-examination of a witness who had participated
in the crime. The trial took place three years after the shooting and defense counsel conceded
that the witness list included this person. Moreover, the testimony was largely cumulative.
4. Evidence--mental health records sealed by trial court--reviewed on appeal
Mental health, substance abuse, or treatment records concerning a witness in a first-
degree murder prosecution which had been sealed by the trial court were reviewed on appeal and
found to contain no material evidence favorable for the defense.
5. Appeal and Error_preservation of issues_discovery--material not included in
record_report not in State's possession
Defendant did not preserve for appeal the issue of his right to discoverable material from
jail records and the results of a psychological evaluation conducted privately at the request of a
witness's attorney. The record does not include the jail records or a request for them, and the
psychological report concerning the witness was not in the State's possession.
Appeal by Defendant from judgment entered 21 April 2006 by
Judge J. Gentry Caudill in Mecklenburg County Superior Court.
Heard in the Court of Appeals 17 October 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General L. Michael Dodd, for the State.
Kathryn L. VandenBerg, for Defendant.
Defendant, Torriano Thompson, appeals from judgment entered on
his conviction of first degree murder and armed robbery. We find
In the early morning hours of 24 May 2003, law enforcement
officers from the Charlotte-Mecklenburg Police Department were
summoned to the Howard Johnson hotel on Tuckaseegee Road in
Charlotte, North Carolina (the Howard Johnson). There they found
Arthur Reyes (Reyes) lying on the floor of his room, having died
from gunshot wounds to his knee and chest. On 29 May 2003,
Defendant was arrested and charged with armed robbery and first
degree murder of Reyes. In April 2006, almost three years after
his arrest, Defendant was tried before a Mecklenburg County jury.
The State's trial evidence tended to show, in pertinent part,
the following: In May 2003 Reyes was employed in the construction
industry. On Friday 23 May 2003, Reyes received his salary in cash
and checked into Room 147 at the Howard Johnson. Pankaj Patel
(Patel), the owner of the Howard Johnson, testified that he noticed
a number of visitors to Reyes' room, including Virgil Young
(Young), a man whom Patel had previously banned from the hotel.
Around midnight on 23 May, Patel and his assistant, Aakush Joshi
(Joshi), left the hotel to run some errands. On their return,
Patel and Joshi heard gunshots and saw Reyes lying on the floor ofRoom 147. Patel immediately called 911, and law enforcement
officers arrived shortly thereafter. Joshi corroborated Patel's
testimony, and added that the Howard Johnson was frequented by drug
users and prostitutes, and that he had seen an African-American man
leaving Room 147 just after the gunshots.
The most important testimony came from three of the State's
witnesses: Paula Greene (Greene), Shari Queen (Queen), and Catrina
Coates Clarty (Clarty). Greene provided the only eyewitness
testimony about the shooting. She testified that on 23 May 2003
she was staying in Room 106 of the Howard Johnson. At that time
Greene was a prostitute and frequent user of crack cocaine, with a
criminal record that included drug charges. When shown a
photograph of Russell Calfee, Greene identified him as a man who
was known to give drug users and prostitutes rides in his car in
exchange for drugs or money.
On 23 May Calfee gave Greene a ride to the Guest House hotel,
located next to the Howard Johnson. The Guest House, like the
Howard Johnson, was frequented by drug users and prostitutes. At
the Guest House, Greene visited a woman named Jody. Several others
were visiting Jody, including Queen, another drug user and
prostitute. Queen told the group at Jody's room that she'd been
smoking crack with Reyes, and that he had a lot of money. Queen
tried to get someone to help her rob Reyes.
Greene did not want to participate in the robbery. Instead
she returned to the Howard Johnson, hoping to negotiate a sex-for-
money transaction with Reyes before Queen did, in order to stealher trick. Sometime after midnight, Greene went to Reyes' room,
where she and Reyes decided to smoke crack and have sex. A little
while later, they heard someone knock on the door and ask to come
in. Reyes did not open the door because Greene recognized Queen's
voice and threatened to leave if Reyes let Queen in the room.
However, when they heard a second knock a few minutes later, Reyes
opened the door.
Greene testified that as soon as the door was open, the
Defendant burst into the room holding a gun and shouting at Reyes
to Give me your G--d--- money! Greene urged Reyes to comply with
Defendant's demand. When Reyes did not heed Greene's advice, the
Defendant shot Reyes several times, and Greene saw Reyes fall on
the ground. The Defendant took Reyes' wallet, which Greene
described as having a Harley Davidson . logo and an attached chain,
and then ran out of the room.
Queen's testimony placed Defendant in Reyes' room at the time
Reyes was shot, with a plan to rob Reyes. Queen testified that in
2003 she was a drug addict and prostitute. She first met Defendant
in Jody's room a few days before Reyes was shot. On 23 May 2003
Queen spent time at Jody's with Defendant and his cousin Eric Sloan
(Sloan), before going to the Howard Johnson to engage in
prostitution. At the Howard Johnson, Queen introduced herself to
Reyes and visited with him in his room for several hours. Reyes
told Queen that he wanted crack cocaine and sex, and Queen promised
to provide both. She called drug dealers of her acquaintance, and
a man she knew as Duck came to Room 147 and sold Reyes a smallamount of crack cocaine. Queen and Reyes smoked it, and agreed to
postpone their sexual activity. A few minutes later, Young joined
them and the three smoked crack cocaine and talked. Queen called
another drug dealer she knew as D'Lo, who sold Reyes a larger
quantity of crack cocaine. Queen testified that she and Young
noticed that Reyes had a lot of money.
After several hours, Queen excused herself and returned to
Jody's room at the Guest House. Jody was entertaining guests that
night, including Greene, Calfee, Defendant, and Sloan. Queen told
the assembled friends about Reyes, stressing how much money he
appeared to have and tried to recruit someone to help her rob him.
Jody was disinclined to help, as she and Reyes were friends. As
previously discussed, Greene took the opportunity to sneak away and
arrange a paid date with Reyes before Queen did. Queen judged
Calfee to be insufficiently stalwart for a robbery. However, when
Defendant agreed to help Queen steal Reyes' money, she accepted his
offer. Sloan drove Calfee's car back to the Howard Johnson,
accompanied by Defendant, Queen, and Calfee. Queen testified that
she and Defendant went to Reyes' room in the early morning hours of
24 May, with the intention of robbing Reyes. Their plan was for
Queen to knock on the door and gain admittance to Reyes' room.
When Reyes opened the door, Queen would leave. Defendant would
then pretend to be a drug dealer and when Reyes took out money to
pay for drugs, Defendant would grab the money and leave.
At the Howard Johnson, Queen and Defendant disembarked and
went to Reyes' room. Queen corroborated Greene's testimony thatthe first time she knocked Reyes refused to open the door. When
she knocked again and Reyes opened the door to admit her, Queen
immediately turned and went back to the car. A few minutes after
she got back to Calfee's car, Defendant returned, holding a black
wallet with a chain. Defendant told Sloan I had to shoot him.
They returned to Jody's room at the Guest House, and Queen and
Calfee received $60.00 and $40.00, respectively, for their part in
Queen was questioned several times by law enforcement
officers, gave recorded statements, and identified photographs of
Young, Defendant, Greene, and the drug dealers she knew as Duck and
D'Lo. After her third interview, Queen was arrested and charged
with first degree murder, armed robbery, and attaining the status
of a habitual felon. Shortly before trial, Queen accepted a plea
arrangement in which the State agreed to drop the charges of first
degree murder and attaining the status of a habitual felon, in
exchange for Queen's truthful testimony at Defendant's trial and
her plea of guilty to one count of armed robbery and one count of
common law robbery. On cross-examination, Queen admitted that: she
was a long-time drug user and prostitute; she had an extensive
criminal record; she initially lied to the police about her role in
the shooting; she had been diagnosed with serious psychological and
emotional problems; and she was motivated to testify in part to
shorten her own prison sentence.
Catrina Coates Clarty testified that she and Defendant dated
for about a year and had broken up several months before Reyes wasshot but remained good friends. On 24 or 25 May 2003 Defendant
called Clarty and said he needed to talk to her. When they met the
next day, Defendant told Clarty that he had shot Reyes. Clarty's
recitation of what Defendant told her generally corroborated the
testimony of other witnesses. Defendant told Clarty that Queen had
described Reyes as an easy target for robbery; that Defendant,
Queen, and others drove from the Guest House to the Howard Johnson;
and that after Queen knocked on Reyes' door and got him to open it,
Defendant went in and told Reyes to give up his money. Defendant
also admitted to Clarty that he had shot Reyes, although he
described the shooting as the accidental result of a tussle over
Clarty was upset by Defendant's confession and feared that she
could face criminal charges unless she shared the information with
law enforcement officers. A few days later, Clarty met with
Charlotte-Mecklenburg Police Department Homicide Detective Valencia
Rivera and gave a statement detailing Defendant's admissions to
her. Clarty also worked with law enforcement officers to lure
Defendant into meeting her at a prearranged location, where
Defendant was arrested without incident.
Other State's witnesses corroborated the testimony of Queen,
Greene, and Clarty. Calfee testified that he was socially
acquainted with both Defendant and Sloan, and that in May 2003 he
was a crack cocaine user who earned money for drugs by giving
people rides in his car. In the early morning hours of 24 May
2003, Calfee, Sloan, Defendant, Greene, and Queen visited Jody inher hotel room and then used Calfee's car to drive next door to the
Howard Johnson. Queen and Defendant got out of the car, while
Calfee stayed behind and smoked crack cocaine. Queen came back
first, followed by Defendant, who said I shot him in the leg as
he got in the car.
Sloan testified that he was a good friend of Defendant, and
that on 24 May 2003 Sloan drove Calfee's car from the Guest House
to the Howard Johnson. Sloan understood their purpose was to pick
up some money, but heard nothing about a robbery. Before leaving
Jody's room, Defendant obtained Sloan's gun which he still had
several hours later, when Sloan dropped Defendant off at his house.
Chantell Hill testified that in May 2003 she was Defendant's
girlfriend, and that she had seen him with a gun several times
during their relationship. Hill recalled that on the evening of 23
May 2003 Defendant went out with Calfee. She also identified cell
phone accounts corresponding to calls that may have been made by
Young testified that he had spent time in Reyes' room with
Queen, and that the three had been drinking and smoking crack
cocaine. He corroborated Queen's testimony that she had left
before he did. At around midnight, Reyes asked Young to go next
door to a gas station and buy more beer and cigarettes. However,
when he got back to the hotel, Young saw law enforcement officers
there, so he did not go to Reyes' room.
The State also presented testimony from law enforcement
officers who had investigated the case and taken statements fromState's witnesses. Their testimony generally corroborated that of
the other witnesses. Additional State's evidence will be discussed
as necessary to the issues on appeal.
The Defendant did not present evidence. Following the
presentation of evidence, the jury found the Defendant guilty of
first degree murder on the theory of felony murder, but found him
not guilty of murder on the theory of premeditation and
deliberation. He was also convicted of armed robbery. Defendant
was sentenced to life in prison without parole for first degree
murder, and judgment was arrested on his conviction of armed
robbery. From this judgment, Defendant timely appealed.
 Defendant argues first that the trial court erred by
allowing Paula Greene to identify Defendant as the shooter, on the
grounds that her identification was based on an impermissibly
suggestive procedure, lacked reliability, held a substantial risk
of mistaken identification, and had no independent origin. We
As the only eyewitness to Reyes' shooting, Greene was
questioned several times by law enforcement officers. Her
statements were recorded and provided to defense counsel prior to
trial. In one statement Greene said that, although she did not
know the name of the shooter, she had seen him a few times before
the shooting, and would recognize him if she saw him in person.
However, the State did not ask Greene to participate in any
pretrial identification procedures that included Defendant, and,pursuant to a sequestration order, Greene was excluded from the
courtroom until it was time for her to testify. Therefore, the
first time Greene saw Defendant after the shooting was when she
entered the courtroom to testify.
When Greene saw Defendant in court, she immediately said
That's him right there. That's the guy that shot [Reyes.]
Defendant moved to suppress her in-court identification on the
grounds that it was based on the impermissibly suggestive
circumstance of seeing Defendant in court, and did not have an
independent origin. After conducting a voir dire
trial court ruled that Greene's identification was admissible.
Defendant argues on appeal that Greene's identification of
Defendant was equivalent to a pretrial 'show-up' and violated his
due process rights. A show-up refers to the practice of showing
suspects singly to witnesses for purposes of identification[.]
State v. Turner
, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982).
Although show-ups have been criticized as an identification
procedure, they are not per se
violative of a defendant's due
process rights. Id.
Whether an identification procedure is unduly suggestive
depends on the totality of the circumstances[:]
A due process analysis requires a two-part
inquiry. First, the Court must determine
whether the identification procedures were
impermissibly suggestive. If so, the Court
must then determine whether the [suggestive]
procedures created a substantial likelihood of
State v. Rogers
, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002)
(quoting State v. Fowler
, 353 N.C. 599, 617, 548 S.E.2d 684, 698
(2001)) (citations omitted).
After determining whether a witness's identification should be
suppressed, the trial court is required by N.C. Gen. Stat. § 15A-
977(f) (2005) to enter an order stating its findings of fact and
conclusions of law. On appeal, [o]ur review of a denial of a
motion to suppress by the trial court is 'limited to determining
whether the trial judge's underlying findings of fact are supported
by competent evidence, in which event they are conclusively binding
on appeal, and whether those factual findings in turn support the
judge's ultimate conclusions of law.' State v. Barden
, 356 N.C.
316, 340, 572 S.E.2d 108, 125 (2002) (quoting State v. Cooke
N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
In the instant case, the trial court dictated a proposed order
during jury deliberations. The transcript includes the court's
proposed findings of fact, but the Record on Appeal does not
include a formal written order filed with the Clerk. However, this
does not necessarily invalidate the trial court's ruling:
In State v. Jacobs
, [(2005)] . . . this Court
determined that the trial court did not err
when it failed to enter written findings
because the trial court did provide its
rationale from the bench. The Jacobs
further relied on a prior decision from our
Supreme Court that determined [i]f there is
no material conflict in the evidence on voir
dire, it is not error to admit the challenged
evidence without making specific findings of
fact. . . . In that event, the necessary
findings are implied from the admission of the
challenged evidence. In this case, as in
, the trial court provided its rationalefrom the bench and there were no material
conflicts in the evidence.
State v. Shelly
, 181 N.C. App. 196, 204-05, 638 S.E.2d 516, 523
(2007) (quoting State v. Phillips
, 300 N.C. 678, 685, 268 S.E.2d
452, 457 (1980) and citing State v. Jacobs
, 174 N.C. App. 1, 7-8,
620 S.E.2d 204, 209 (2005), disc. review denied
, 361 N.C. 565, 640
S.E.2d 389 (2006)), disc. review denied
, 361 N.C. 367, 646 S.E.2d
. In the case sub judice
, there was no conflict in the
evidence, as Greene was the only voir dire
witness on the issue of
the admissibility of her identification. She testified, inter
, that she was able to see Defendant clearly in the small hotel
room, and that she had no doubt that he was the person who had shot
Reyes. Greene also said that, although she did not know
Defendant's name at the time of the shooting, she knew she had seen
him before in Charlotte.
The court stated its rationale when it dictated its proposed
findings of fact, including, in pertinent part, the following:
3. That just prior to the suppression motion
being made, the witness Greene was called into
the courtroom to be the next witness for the
State after the lunch recess.
4. That the State's witnesses were under a
sequestration order, and Paula Greene had not
been in the court prior to [that]. . . .
5. That the witness Greene, was sitting [in]
the back of the courtroom . . . when the
Defendant, who is in the custody of the
Sheriff, was brought into the courtroom.
6. As Defendant walked by Paula Greene, she
stated Oh my God. That's the guy who shot
7. That prior to Paula Greene seeing the
Defendant in the courtroom . . . no one had
suggested in any way that Paula Greene should
identify anyone in the court.
8. That . . . [in an] interview with law
enforcement officers, Ms. Greene said that she
had seen the person in the area before, but
did not know his name. And that information
was made available to the Defendant as
. . . .
12. That in the hearing before the undersigned
. . . Paula Greene identified the Defendant as
the man that came into the victim's room,
demanded money, shot the victim and then fled
from the room.
13. That Ms. Greene testified she had seen the
Defendant on prior occasions around the area
where the shooting occurred, but did not know
14. That Ms. Greene had good opportunity to
see and hear the person that shot the victim.
On a motion to suppress evidence, the trial court's findings
of fact are conclusive on appeal if supported by competent
evidence. State v. Campbell, 359 N.C. 644, 661, 617 S.E.2d 1, 12
(2005) (citations omitted). We conclude that the trial court's
findings, as announced in court and implied from its admission of
Greene's identification of Defendant, were supported by Greene's
testimony. Therefore, the scope of our inquiry is limited to the
superior court's conclusions of law, which 'are fully reviewable on
appeal.' State v. Sinapi, 359 N.C. 394, 398, 610 S.E.2d 362, 365
(2005) (quoting State v. Smith, 346 N.C. 794, 797, 488 S.E.2d 210,
212 (1997)). Based on its findings, the trial court dictated its
conclusions: 1. That the witness Paula Greene's in-court
identification of the Defendant is based on
her observations of the shooting at the time
that the victim was shot in May of 2003.
2. That Ms. Greene had ample opportunity to
see the shooter and reason to closely observe
3. That Ms. Greene had seen the shooter
before, and recognized him at the time of the
4. That no pretrial identification procedure
with Ms. Greene involving the Defendant or
Defendant's photograph, was conducted prior to
Paula Greene recognizing the Defendant in the
5. That no law enforcement officer,
prosecutor, or other representative of the
State, did anything to suggest Paula Greene
should identify the Defendant.
6. That Paula Greene's in-court identification
of the Defendant is based on having seen the
shooting of the victim in May of 2003. And is
not based on any improperly suggestive action
by any representative of the State.
We conclude that the trial court's conclusions were supported by
its findings of fact, and that the trial court did not err by
denying Defendant's suppression motion. This assignment of error
 Defendant made two continuance motions during trial, on
the grounds that he needed additional time to prepare for cross-
examination of two State's witnesses, Paula Greene and Eric Sloan.
In his next two arguments, Defendant asserts that the trial court
erred by denying his motions. We disagree. 'It is well settled that a motion for continuance is
addressed to the discretion of the trial judge and we will not
disturb that ruling absent an abuse of that discretion.' State v.
Collins, 160 N.C. App. 310, 319, 585 S.E.2d 481, 488 (2003), aff'd,
358 N.C. 135, 591 S.E.2d 518 (2004) (quoting State v. Wilfong, 101
N.C. App. 221, 223, 398 S.E.2d 668, 670 (1990)). On appeal,
Defendant argues that the denial of his continuance motions was a
violation of his due process rights under the state and federal
constitutions. However, Defendant made no constitutional argument
to the trial court regarding either Greene or Sloan.
Constitutional issues not raised and passed upon at trial will not
be considered for the first time on appeal. State v. Lloyd, 354
N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (citations omitted).
Accordingly, we review the trial court's rulings for abuse of
As discussed above, Greene entered the courtroom shortly
before she was scheduled to testify and identified Defendant as the
person whom she saw shoot Reyes on 24 May 2003. Upon learning of
Greene's positive identification of Defendant, defense counsel
asked the court to recess until after lunch, so he could conduct
legal research on the admissibility of Greene's identification.
Because the State did not conduct any pretrial identification
procedures giving Greene the chance to identify Defendant, neither
the State nor Defendant could be certain before trial that Greene
would identify Defendant in court as the shooter. On appeal,
Defendant contends that he needed additional time to prepare tocross-examine Greene about her identifying him as the shooter.
However, the record establishes the following:
Defendant was informed that Greene was the
only eyewitness to the shooting.
Defendant was informed that Greene told law
enforcement officers that she had seen the
shooter before, and that she would be able to
identify him if she saw him again.
The trial was held almost three years after
Defendant had almost three years to prepare for the possibility
that Greene, the only eyewitness, might identify him as the
shooter. We conclude that this was ample time to prepare for
cross-examination. We also note that Defendant vigorously cross-
examined Greene at trial. On cross-examination, Greene admitted
that in May 2003 she was a drug user and prostitute with a criminal
record, that she'd smoked crack cocaine before the shooting, that
the shooting happened very quickly, and that she was frightened
during the incident. We conclude that the trial court did not
abuse its discretion by denying Defendant's motion for a
continuance of two or three hours to conduct further legal
research. This assignment of error is overruled.
 We next consider Defendant's request for a continuance
before Sloan testified. It is undisputed that Defendant and Sloan
had been close friends for many years, and that Sloan continued to
reside in Charlotte after the shooting. Shortly before trial, the
State offered Sloan immunity in exchange for his truthful testimony
at trial, and Sloan gave a short statement. Defense counsel
conceded in court that I was aware, obviously, that Mr. Sloan wason [the State's] witness list. He is supposedly somebody that was
present, and was driving the car, and all those types of things.
However, Defendant asked the court for a continuance in order to
see if there is any investigation that we need to do, before Mr.
Sloan is on the stand and testifies. We note again that the trial
took place almost three years after the shooting. We conclude that
Defendant had ample time to anticipate Sloan's testimony or to
conduct any necessary investigation.
Moreover, Sloan's testimony was largely cumulative. Sloan
testified that: he, Defendant, and Queen drove to the Howard
Johnson; although they were there to get some money, he had not
heard anyone talk about robbery; Defendant had a gun when they went
to the Howard Johnson; Queen and Defendant got out of the car at
the Howard Johnson and Queen returned first, followed by Defendant;
and that Defendant did not do or say anything unusual upon his
return. Notably, Sloan did not testify to Defendant's
participation in any criminal activity other than drug use. We
conclude that the trial court did not abuse its discretion by
denying Defendant's motion to continue the case. This assignment of
error is overruled.
 Finally, Defendant asks this Court to review sealed
mental health records to determine whether they include favorable
and material evidence for the defense.
Defendant has a constitutional right to the disclosure of
exculpatory or favorable evidence. State v. Soyars
, 332 N.C. 47,63, 418 S.E.2d 480, 490 (1992) (citing United States v. Bagley
U.S. 667, 676, 87 L. Ed. 2d 481, 490 (1985) and Brady v. Maryland
373 U.S. 83, 10 L. Ed. 2d 215 (1963)). Consequently, [t]he
prosecution is required to turn over to a defendant favorable
evidence that is material to the guilt or punishment of the
Evidence is considered 'material' if there is a
'reasonable probability' of a different result had the evidence
been disclosed. State v. Berry
, 356 N.C. 490, 517, 573 S.E.2d
132, 149 (2002)(citations omitted).
Impeachment evidence . . . falls within the Brady
, 473 U.S. at 676, 87 L. Ed. 2d at 490. Moreover, such
impeachment 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[.]' State v.
, 157 N.C. App. 217, 220-21, 578 S.E.2d 628, 630 (2003)
(quoting State v. Williams
, 330 N.C. 711, 719, 412 S.E.2d 359, 364
(1992)) (internal citation omitted). 'The State, however, 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.' Lynn
, 157 N.C. App. at 221-
22, 578 S.E.2d at 632 (quoting State v. Chavis
, 141 N.C. App. 553,561, 540 S.E.2d 404, 411 (2000)) (internal quotation marks and
As regards potentially exculpatory information contained in
personal treatment records, [a] defendant's right to exculpatory
evidence often must be balanced against the privacy rights of
witnesses. In such situations, 'a defendant's due process rights
are adequately protected by an in camera
review of the files of the
government agency, after which the trial court must order the
disclosure of any information discovered which is material to the
defendant's guilt or innocence.' Lynn
, 157 N.C. App. at 223-24,
578 S.E.2d at 633 (quoting State v. Johnson
, 145 N.C. App. 51, 55,
549 S.E.2d 574, 577 (2001)) (citation omitted
On appeal the appellate court is required to examine the
sealed records to determine whether they contain information that
is favorable and material to an accused's guilt or punishment.
State v. Thaggard
, 168 N.C. App. 263, 280, 608 S.E.2d 774, 785
(2005) (citing Pennsylvania v. Ritchie
, 480 U.S. 39, 57, 94 L. Ed.
2d 40, 57 (1987)).
In the instant case, Defendant filed pretrial motions seeking
review of mental health, substance abuse, or treatment
records for Queen in the possession of either the Charlotte-
Mecklenburg County jail or of Exodus House, a substance abuse
treatment center. Defendant also sought review of the results of
a private psychological examination conducted at the request of
Queen's counsel. On 15 March 2006 Judge Timothy L. Patti ordered
both the Mecklenburg County Jail and the director of Exodus Houseto provide copies of Queen's treatment records for the court's
review. Judge Patti entered an order on 13 April 2006 stating that
the court had conducted an in camera
review of most of those
records, and that discoverable materials would be released to the
Defendant for use at trial. The order stated further that:
[A] psychological evaluation of [Queen]
represented by Attorney Susan Weigand was done
at Attorney Weigand's request and the
psychological report is not in the possession
of the State of North Carolina . . . the Court
will not . . . [give] the Defendant the
psychological evaluation of [Queen.]
Certain records from Exodus House that were not reviewed
before trial were therefore reviewed by Judge Caudill, who presided
over the trial. Excerpts from these Exodus House records were
given to Defendant. After the trial, the court entered an order
stating that it had sealed the Exodus House records in four
envelopes: three envelopes containing all the records provided to
the court, and a fourth envelope containing the materials that the
court had deemed discoverable and had given Defendant. These four
envelopes are the only records requested by defense counsel on
appeal, and are the only records included in the Record on Appeal.
We have reviewed these records and conclude that they contain no
material favorable evidence. This assignment of error is
 On appeal, Defendant also discusses his right to
discoverable material from the jail records and from the results of
a psychological evaluation conducted privately at the request of
Queen's attorney. We conclude that Defendant has not preservedeither of these issues for appellate review. Regarding the jail
records, the record includes neither the jail records nor any
request for same. Therefore, we are unable to review this issue.
Additionally, the basis asserted by Defendant for access to the
psychological report arranged by Queen's attorney was his right to
disclosure by the State of favorable evidence in its possession.
We agree with the trial court that this record was not in the
For the reasons discussed above, we conclude that the
Defendant had a fair trial, free of reversible error.
Judges CALABRIA and STEPHENS concur.
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