{ "id": 9439841, "name": "STATE OF NORTH CAROLINA v. DAVID McGILL, JR.", "name_abbreviation": "State v. McGill", "decision_date": "2000-12-19", "docket_number": "No. COA99-1454", "first_page": "98", "last_page": "104", "citations": [ { "type": "official", "cite": "141 N.C. App. 98" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "473 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205331 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "682", "parenthetical": "opinion of Blackmun, J" }, { "page": "494", "parenthetical": "opinion of Blackmun, J" } ], "opinion_index": 0, "case_paths": [ "/us/473/0667-01" ] }, { "cite": "365 S.E.2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "197", "parenthetical": "evidence of previous false accusation admissible to impeach credibility of witness" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520418 ], "year": 1988, "pin_cites": [ { "page": "96-97", "parenthetical": "evidence of previous false accusation admissible to impeach credibility of witness" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0093-01" ] }, { "cite": "57 F.3d 1305", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7414808 ], "year": 1995, "pin_cites": [ { "page": "1313" } ], "opinion_index": 0, "case_paths": [ "/f3d/57/1305-01" ] }, { "cite": "89 F.3d 187", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9041287 ], "year": 1996, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/f3d/89/0187-01" ] }, { "cite": "352 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685095, 684969, 685009, 684917, 685082 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0152-05", "/nc/352/0152-04", "/nc/352/0152-03", "/nc/352/0152-02", "/nc/352/0152-01" ] }, { "cite": "527 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092887 ], "year": 2000, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0256-01" ] }, { "cite": "235 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "842" }, { "page": "842" } ], "opinion_index": 0 }, { "cite": "293 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561617 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "128" }, { "page": "127-28" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0105-01" ] }, { "cite": "480 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131144 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "58" }, { "page": "58" }, { "page": "57" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/us/480/0039-01" ] } ], "analysis": { "cardinality": 679, "char_count": 14763, "ocr_confidence": 0.763, "pagerank": { "raw": 2.2015232252291627e-07, "percentile": 0.775212570308153 }, "sha256": "ba58e8d634c073765b79dde0b7168263103ae95e02b0b7d0b6be2d59a397b428", "simhash": "1:926dbe31b1e69c57", "word_count": 2388 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and EDMUNDS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID McGILL, JR." ], "opinions": [ { "text": "GREENE, Judge.\nDavid Eugene McGill, Jr. (Defendant) appeals from convictions of four counts of first-degree sexual offense upon a minor child (G.H.) and of two counts of indecent liberties with G.H.\nPre-trial\nOn 18 May 1998, Defendant filed motions requesting the right to inspect records of G.H. from the Cherokee County (CCDSS) and Gaston County (GCDSS) Departments of Social Services for exculpatory information. Defendant believed these records would \u201cshow that the State\u2019s [p]rosecuting [witness, [G.H.], filed formal complaints against... Defendant in said Counties], and Defendant believes such records will show exculpatory material contained therein.\u201d On 21 May 1998, the trial court, after conducting an in camera inspection of the file of CCDSS, identified four pages of materials from the file as \u201cpossibly exculpatory\u201d and ordered them to be given to Defendant and ordered a copy of the entire file be sealed and deposited for further in camera review, should it be necessary. The four pages given to Defendant contained allegations of abuse and neglect made in December 1996 against Lynn Hampton (Hampton), G.H.\u2019s mother, and Defendant, Hampton\u2019s boyfriend. At the time these allegations were made, Hampton stated G.H. \u201cwas bad to set fires.\u201d Also contained in the four pages given to Defendant was an interview with the elementary school principal of G.H. and his younger brother R.H., in which the principal stated \u201che feels like [G.H. and R.H.] are prone to exag\u00e9rate [sic] and make things bigger than they are.\u201d\nOn 19 October 1998, prior to jury selection, the trial court stated it had reviewed the records of GCDSS and \u201cfound nothing exculpatory in them. It\u2019s all inculpatory.\u201d The trial court then sealed the records of GCDSS for further in camera inspection if necessary.\nState\u2019s evidence\nG.H. testified that in 1997 and the early part of 1998, when he was nine years old, G.H., R.H., and Hampton lived with Defendant in Murphy, North Carolina. In November 1997, Defendant awakened G.H. at approximately 12:00 a.m. and made G.H. \u201ccome in the living room and sit on his lap.\u201d Defendant made G.H. sit there and watch a pornographic movie as he \u201ctouched [G.H.\u2019s] privates . . . and made [G.H.] take [Defendant\u2019s] pants off.\u201d G.H. was in the living room with Defendant for approximately one hour.\nIn January 1998, Defendant awakened G.H. from his sleep at around 2:30 a.m. and made G.H. watch the same video he had seen in November. Shortly after the video ended, Defendant made G.H. take off Defendant\u2019s pants and then Defendant went into the bathroom. Defendant made G.H. enter Defendant\u2019s bedroom and Defendant removed G.H.\u2019s clothes. G.H. testified Defendant made him \u201csuck [Defendant\u2019s] peter\u201d and made G.H. kiss him. G.H. stated \u201cthis whole thing\u201d lasted \u201c[a]bout five hours,\u201d while Defendant \u201cstuck his tongue in[to G.H.\u2019s] butt,\u201d bit G.H.\u2019s penis, and put [Defendant\u2019s] penis into G.H.\u2019s \u201cbutt.\u201d On cross-examination, G.H. stated he wanted to live with his grandmother, even during the time period he was living with Defendant.\nR.H. testified that in November 1997, G.H. was crying and G.H. told him Defendant made him watch a pornographic movie and made G.H. pull Defendant\u2019s pants off. R.H. recalled that during the \u201csecond time,\u201d which he believed occurred in November 1997, G.H. went into Defendant\u2019s bedroom and Defendant closed the door. The next morning, G.H. told R.H. Defendant \u201cmolested him in the behind.\u201d On cross-examination, R.H. testified he wanted to live with his grandmother because Defendant \u201cwould be mean to [him]\u201d and Defendant would tell him to do his homework and chores. If R.H. or G.H. did not do their homework or chores, they \u201cwould get a whipping.\u201d R.H. denied ever watching pornographic videos at his grandmother\u2019s house.\nHampton testified that a week after the November 1997 incident, G.H. told her Defendant \u201cgot [G.H.] up in the middle of the night and had [G.H.] come and watch [television] with [Defendant] . . . and [Defendant] had [G.H.] take [Defendant\u2019s] pants off.\u201d G.H. told Hampton Defendant \u201cpulled [G.H.] down toward[] [Defendant\u2019s] penis.\u201d In January 1998, when she arrived home from work during the early morning hours, Hampton found Defendant who was naked under the covers and G.H. in the bed together.\nOn cross-examination, Hampton testified when she and Defendant, along with R.H. and G.H., lived in Gastonia, before their move to Murphy in 1996, she and Defendant were investigated concerning allegations about sexual contact with G.H. and R.H. Hampton recalled making a statement about G.H. \u201cwatching dirty movies at [his grandmother\u2019s] house and looking through a peephole and watching\u201d his uncle and another man engaging in sexual acts. After finding G.H. in the bed with Defendant in January 1998, Hampton never saw any \u201cblood or feces\u201d in G.H.\u2019s underwear and did not inspect the sheets in Defendant\u2019s bedroom. In addition, Hampton did not notice any discomfort in G.H. subsequent to the incident in January of 1998.\nChanda Enand (Enand), a physician\u2019s assistant at Carolina Medical Center in Charlotte, North Carolina, examined G.H. on 30 April 1998 after the reported sexual abuse. Enand testified G.H.\u2019s physical exam was \u201cnormal,\u201d however, the overall assessment, \u201cincluding [an] interview and physical exam [was] consistent with probable sexual abuse.\u201d Enand revealed \u201c[s]ixty or seventy percent of the children who are sexually abused\u201d have normal exams.\nDefendant\u2019s evidence\nDefendant testified he did not sexually assault G.H. nor did he make G.H. watch a pornographic video. In addition, Debra Sears (Sears), the Child Protective Services Supervisor for CCDSS, testified Hampton and Defendant had previously been investigated concerning allegations of sexual abuse and \u201cnothing was found.\u201d\nClosing arguments\nIn closing arguments, Defendant argued testimony G.H. and R.H. watched pornographic videos and G.H. and R.H. saw their uncle and another man engaging in sexual acts provided \u201cthe source of the information where some child ten years old could get. . . these types of allegations.\u201d The State, however, argued G.H.\u2019s exposure to pornography did not provide a basis for his allegations. The State contended \u201cwhat happened to [G.H.] that night was . . . awful.... Do you think [G.H.] saw that on a pornographic video?\u201d\nThe dispositive issue is whether the records from GCDSS concerning prior allegations of sexual abuse by G.H. contain information that is favorable to Defendant and material to his guilt or punishment.\nDefendant argues the trial court erred in refusing to give him access to the records of GCDSS. He asks this Court to review the records to determine whether they contain any exculpatory information.\nA defendant who is charged with sexual abuse of a minor has a constitutional right to have the records of the child abuse agency that is charged with investigating cases of suspected child abuse, as they pertain to the prosecuting witness, turned over to the trial court for an in camera review to determine whether the records contain information favorable to the accused and material to guilt or punishment. Pennsylvania v. Ritchie, 480 U.S. 39, 58, 94 L. Ed. 2d 40, 58 (1987). If the trial court conducts an in camera inspection but denies the defendant\u2019s request for the evidence, the evidence should be sealed and \u201cplaced in the record for appellate review.\u201d State v. Hardy, 293 N.C. 105, 128, 235 S.E.2d 828, 842 (1977). On appeal, this Court is required to examine the sealed records to determine if they contain information that is \u201cboth favorable to the accused and material to [either his] guilt or punishment.\u201d Ritchie, 480 U.S. at 57, 94 L. Ed. 2d at 57; see also Hardy, 293 N.C. at 127-28, 235 S.E.2d at 842; State v. Jarrett, 137 N.C. App. 256, 267, 527 S.E.2d 693, 700, disc. review denied, 352 N.C. 152, - S.E.2d - (2000). If the sealed records contain evidence which is both \u201cfavorable\u201d and \u201cmaterial,\u201d defendant is constitutionally entitled to disclosure of this evidence. Id. at 60, 97 L. Ed. 2d at 59.\nEvidence favorable to defendant\n\u201cFavorable\u201d evidence includes evidence which tends to exculpate the accused, as well as \u201cany evidence adversely affecting the credibility of the government\u2019s witnesses.\u201d U.S. v. Trevino, 89 F.3d 187, 189 (4th Cir. 1996); see also Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995).\nWe have reviewed the records of GCDSS which were sealed by the trial court to determine if they contain information favorable to Defendant. Prior to the incidents in this case, there are two other allegations Defendant abused G.H. and R.H., neither of which were substantiated by GCDSS. The allegation made in 1996 is revealed in the four pages the trial court ordered be made available to Defendant; and the November 1994 allegation of neglect and improper discipline is contained in the records of the undisclosed files of GCDSS. In the report on the November 1994 allegation, R.H., five years old at the time, gives an account of what happened, stating Defendant \u201cskinned his weenie back and hit it [seven times].\u201d When the social worker asked him what \u201cskinned\u201d means, he stated \u201che doesn\u2019t know, his grandma told him what to say. . . . [N]o one has touched his privates . . . [and] he didn\u2019t know what his privates were until [the social worker] pointed to them.\u201d G.H., six years old at the time, stated his grandma told him the social worker was coming and that \u201cno one ever touched his privates. [Defendant] never touches him or [R.H.], not even for a bath.\u201d In addition, there is information contained in the sealed documents that G.H.\u2019s and R.H.\u2019s grandmother was trying to obtain custody of G.H. and R.H. and Hampton believed the grandmother fabricated allegations of abuse in order to obtain custody. Evidence contained in the files of GCDSS tends to show that false accusations were made against Defendant in 1994 and thus could properly be used to impeach the credibility of key witnesses for the State. State v. Anthony, 89 N.C. App. 93, 96-97, 365 S.E.2d 195, 197 (1988) (evidence of previous false accusation admissible to impeach credibility of witness). The Defendant was accordingly denied evidence favorable to him.\nMateriality\nWe must next determine if the favorable evidence is material either to Defendant\u2019s guilt or punishment. \u201c[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 \u2018reasonable probability\u2019 is a probability sufficient to undermine confidence in the outcome.\u201d United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494 (1985) (opinion of Blackmun, J).\nIn this case, G.H. and R.H. were the only witnesses to give an account of the events that happened in November 1997 and January 1998. The medical exam performed in April of 1998, almost four months after the alleged sexual assault occurred, was normal and Hampton testified she did not notice any discomfort in G.H. nor any blood or feces in his underwear. There was evidence presented that G.H. may have witnessed his uncle and another man having sex and evidence G.H. had been exposed to pornographic videos outside of Defendant\u2019s home. This evidence tends to rebut the State\u2019s theory that G.H. was too young to have fabricated the abuse by Defendant. Thus, there is a reasonable probability that had the records of GCDSS been disclosed to Defendant, the result of the trial would have been different. Accordingly, because this evidence is both favorable and material, Defendant should have been given access to this information and the trial court erred in denying that access.\nPrejudicial error\nThe failure of the trial court to turn over evidence to Defendant that was both favorable and material to Defendant does not guarantee Defendant a new trial, unless the failure was prejudicial to Defendant. State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). The violation of a defendant\u2019s constitutional rights is prejudicial unless this Court \u201cfinds that it was harmless beyond a reasonable doubt.\u201d N.C.G.S. \u00a7 15A-1443(b) (1999).\nIn this case, because we have determined evidence contained in the records of GCDSS was both favorable and material, Defendant\u2019s constitutional right to have the evidence was violated. The State has the burden of showing the error was harmless beyond a reasonable doubt. Id. The State has made no argument on this issue and thus has failed to meet its burden. Accordingly, Defendant is entitled to a new trial.\nWe have carefully reviewed Defendant\u2019s other assignments of error and determine they are unlikely to arise upon retrial and, accordingly, are not addressed.\nNew trial.\nJudges MARTIN and EDMUNDS concur.\n. R.H.\u2019s statement could have been inquired into by Defendant on cross-examination of R.H. to attack R.H.\u2019s character for truthfulness or untruthfulness. See N.C.G.S. \u00a7 8C-1, Rule 608(b) (1999).\n. G.H.\u2019s statement to a social worker in 1994 may have been inquired into on cross-examination by Defendant. See N.C.G.S. \u00a7 8C-1, Rule 611(b) (1999).\n. This statement is relevant in cross-examining Hampton as to whether she believed the allegations were fabricated in this case and also is relevant to cross-examining G.H. concerning any influence on his testimony.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Teresa L. Harris, for the State.", "McKinney & Tallant, P.A., by Zeyland G. McKinney, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID McGILL, JR.\nNo. COA99-1454\n(Filed 19 December 2000)\nDiscovery\u2014 child abuse \u2014 social services records\nThere was prejudicial error in a prosecution for first-degree sexual offense and indecent liberties where defendant was denied access to social services records concerning prior allegations of abuse. Upon review of the sealed records, the Court of Appeals determined that defendant was denied evidence favorable to him which could have been used to impeach the credibility of key witnesses for the State; that the evidence was material because there is a reasonable probability that the result would have been different had the records been disclosed; and that there was prejudice because a defendant charged with sexual abuse of a minor has a constitutional right to have the records of the child abuse agency pertaining to the prosecuting witness reviewed, with disclosure of favorable and material evidence, and the State here did not argue that the error was harmless and thus failed to meet its burden of showing that the constitutional error was harmless beyond a reasonable doubt.\nAppeal by defendant from judgments dated 23 October 1998 by Judge Forrest A. Ferrell in Cherokee County Superior Court. Heard in the Court of Appeals 17 October 2000.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Teresa L. Harris, for the State.\nMcKinney & Tallant, P.A., by Zeyland G. McKinney, Jr., for defendant-appellant." }, "file_name": "0098-01", "first_page_order": 128, "last_page_order": 134 }