{
  "id": 9185770,
  "name": "STATE OF NORTH CAROLINA v. MICHAEL SCOTT LYNN",
  "name_abbreviation": "State v. Lynn",
  "decision_date": "2003-04-15",
  "docket_number": "No. COA02-382",
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    "judges": [
      "Judges McGEE and HUDSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MICHAEL SCOTT LYNN"
    ],
    "opinions": [
      {
        "text": "LEVINSON, Judge.\nDefendant, Michael Scott Lynn, appeals his convictions of conspiracy to commit first degree murder, attempted first degree murder, and assault with a deadly weapon with intent to kill. For the reasons that follow, we affirm.\nThe evidence tended to show, in relevant part, the following: In the fall of 1997, defendant was hired as a cook at the Garner, North Carolina, Waffle House restaurant. Sylvia Groves (Sylvia) was a supervisor at the restaurant. She was married to the victim in this case, David Groves (Groves). Sylvia introduced Groves to the defendant on at least one occasion, when Groves ate at the restaurant. After defendant was hired at the Waffle House, he and Sylvia became friends, and later began a romantic and sexual relationship. After about six months, Sylvia and defendant began to discuss \u201cshooting Dave [Groves] to get [him] out of the way[.]\u201d Sylvia testified that these conversations began \u201cas a little joke\u201d but then the two \u201cplanned to shoot him so he would not be there because [she] could not . . . leave [Groves].\u201d\nOn 7 May 1998, defendant called in sick at work. Sylvia went to defendant\u2019s home and picked him up. At trial, defendant\u2019s mother testified that defendant returned home in about an hour. However, Sylvia testified that she and the defendant drove to her house, where defendant waited outside. Sylvia further testified that when they arrived at her house, she went in, retrieved a gun from the bedroom that she and Groves shared, and took it outside to defendant. The defendant waited until she signaled that Groves was asleep. Then he snuck into the house and shot Groves twice while he lay in bed. Groves awoke, shouted that defendant had shot him, and called 911. Sylvia testified that she gave false statements to the police on the night of the shooting, denying that she knew the assailant, whom she described as wearing red checked pants. Nonetheless, Sylvia was arrested that evening, and later pled guilty to conspiracy to commit murder, attempted first degree murder, and assault with a deadly weapon with the intent to kill inflicting serious injury.\nGroves testified that on the night of 7 May 1998, while he was in bed, the defendant came into his bedroom and shot him several times. He saw the defendant clearly because \u201cthe light hit him right across the face,\u201d and Groves saw \u201cthe profile that was so distinctive[.]\u201d Groves recognized the defendant immediately, because he had met the defendant several times before the shooting. He ran out of the bedroom, shouting to Sylvia that \u201cher cook\u201d had shot him. When an ambulance arrived, Groves was taken to the hospital, where he was treated and released. On cross-examination, Groves was questioned about the description of the defendant he had given law enforcement officers the night of the shooting, and denied telling officers that his assailant had worn \u201ccheckered pants.\u201d\nGreg and Brenda Kehle, the Groves\u2019 next door neighbors, testified that Sylvia called them after the shooting. Greg Kehle immediately went to the Groves\u2019 trailer to help. Before the ambulance arrived, Groves told Kehle that the defendant, whom Kehle and Groves had met several times, was the person who shot him. Other evidence indicated that the defendant\u2019s fingerprints were found on Groves\u2019 truck the day after the shooting.\nDefendant has presented three arguments on appeal, two of which concern Sylvia\u2019s medical records. The defendant argues first that the trial court committed reversible error when it denied his pretrial motion to require that the State learn the names of any mental health professionals who had treated Sylvia, so that defendant could subpoena their records for an in camera inspection by the trial court. The transcript of pretrial proceedings indicates that the defendant had filed a written motion, requesting that the court order the State to conduct an inquiry to determine who, if anyone, had previously treated Sylvia for emotional or psychological problems. However, the motion is not a part of the record. This omission violates N.C.R. App. P. 9(3)(i), which requires that the record on appeal include \u201ccopies of all. . . papers filed . . . which are necessary for an understanding of all errors assigned[.]\u201d Our review of this issue is, therefore, based upon the statements of counsel and of the trial court as they appear in the transcript of pretrial proceedings.\nIn the pretrial hearing, defendant asked that the trial court order the State to determine the identities of any mental health professionals \u201cwho [were] treating her for whatever her psychological problems were[.]\u201d He alleges that the court\u2019s denial of this motion denied his due process right to material exculpatory evidence. We disagree.\nAs a general rule, a criminal defendant is entitled to potentially exculpatory evidence:\n\u2018Suppression 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.\u2019. . . The duty to disclose encompasses impeachment evidence as well as exculpatory evidence. Evidence is material \u2018if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.\u2019\nState v. Holadia, 149 N.C. App. 248, 256-57, 561 S.E.2d 514, 520-21 (quoting Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218 (1963), and United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 490 (1985)), disc. review denied, 355 N.C. 497, 562 S.E.2d 432 (2002). \u201c \u2018A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u2019 \u201d State v. Thompson, 139 N.C. App. 299, 306, 533 S.E.2d 834, 840 (2000) (quoting Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494). Therefore, in determining whether the defendant\u2019s lack of access to particular evidence violated his right to due process, \u201cthe focus should be on the effect of the nondisclosure on the outcome of the trial, not on the impact of the undisclosed evidence on the defendant\u2019s ability to prepare for trial.\u201d State v. Hunt, 339 N.C. 622, 657, 457 S.E.2d 276, 296 (1994).\n\u201c \u2018Impeachment evidence, ... as well as exculpatory evidence, falls within the Brady rule.\u2019 \u201d State v. Soyars, 332 N.C. 47, 63, 418 S.E.2d 480, 490 (1992) (quoting Bagley, 473 U.S. at 676, 87 L. Ed. 2d at 490). See also State v. McGill, 141 N.C. App. 98, 102-03, 539 S.E.2d 351, 355-56 (2000) (\u201c \u2018[f]avorabie\u2019 evidence includes . . . \u2018any evidence adversely affecting the credibility of the government\u2019s witnesses\u2019 \u201d) (new trial required where defendant denied access to files \u201ctend[ing] to show that [previous] false accusations were made against [defendant]\u201d) (quoting United States v. Trevino, 89 F.3d 187, 189 (4th Cir. 1996)).\nMoreover, 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 \u201cinstances of. . . mental instability are not directly probative of truthfulness, they may bear upon credibility in other ways, such as to \u2018cast doubt upon the capacity of a witness to observe, recollect, and recount[.]\u2019 \u201d State v. Williams, 330 N.C. 711, 719, 412 S.E.2d 359, 364 (1992) (quoting 3 Federal Evidence \u00a7 305, at 236). See State v. Newman, 308 N.C. 231, 254, 302 S.E.2d 174, 187 (1983) (\u201cagreeing] with defendant\u2019s contention that he was entitled to discredit the prosecuting witness\u2019 testimony by attempting to show by cross-examination that she suffered from a mental impairment which affected her powers of observation, memory or narration\u201d) (citing 1 H. Brandis on North Carolina Evidence, Witnesses, \u00a7 44 (2d. Rev. 1982)). See also, e.g., United States v. Golyansky, 291 F.3d 1245, 1248 (10th Cir. 2002) (\u201cpotential Brady/Giglio information\u201d held to include information regarding a \u201cwitness\u2019 serious mental health issues\u201d triggering prosecutor\u2019s \u201caffirmative duty to disclose the information\u201d); East v. Johnson, 123 F.3d 235, 238 (5th Cir. 1997) (new trial ordered where state failed to disclose that witness \u201cexperienced bizarre sexual hallucinations and believed that unidentified individuals were attempting to kill her[,] . . . was incapable of distinguishing between reality and the fantasies caused by her hallucinations [,... and] was mentally incompetent to stand trial on a pending burglary charge\u201d).\nHowever, failure to disclose evidence relating to a witness\u2019s mental health is not reversible error where there is no likelihood that the outcome of the trial was affected. See United States v. Cole, 293 F.3d 153, 157 (4th Cir. 2002), cert. denied, - U.S. \u2014, 154 L. Ed. 2d 296 (2002) (no Brady violation in prosecutor\u2019s belated disclosure of impeachment evidence of mental problems where \u201cdisclosed materials did not indicate that [witness\u2019s] disorders had any bearing on his ability to recall events and tell the truth\u201d); United States v. Burns, 668 F.2d 855, 860 (5th Cir. 1982) (where psychologist \u201ctestified that [witness] was fully in touch with reality, [and] that his personality problems did not affect his ability to tell the truth\u201d the State was under no duty to conduct further investigation into witness\u2019s mental health).\nIn State v. Chavis, 141 N.C. App. 553, 556, 540 S.E.2d 404, 408 (2000), the defendant sought discovery of the \u201cpsychiatric history of [the prosecuting witness] ... to impeach the witness\u2019s ability to perceive, retain, or narrate.\u201d The trial court ruled that the prosecutor had \u201cno duty to go out and find impeaching information with regard[] to its witnesses[,]\u201d and this Court affirmed:\nA defendant is constitutionally entitled to all exculpatory evidence, including impeachment evidence, in the possession of the State. The State, however, is under a duty to disclose only those matters in its possession and \u2018is not required to conduct an independent investigation\u2019 to locate evidence favorable to a defendant. In this case, Defendant presented no evidence the State actually had [the witness\u2019] medical and psychiatric history in its possession or that such history would have been favorable to Defendant. Accordingly, the State was under no obligation to obtain and disclose this information to Defendant.\nChavis, 141 N.C. App. at 561, 540 S.E.2d at 411 (quoting State v. Smith, 337 N.C. 658, 664, 447 S.E.2d 376, 379 (1994), and citing Soyars, 332 N.C. at 63, 418 S.E.2d at 490). Similarly, in Smith, 337 N.C. at 663, 447 S.E.2d at 379, the defendant moved for \u201cdisclosure of impeaching information as to whether [the] witness suffered from any mental defect or history of substance abuse which might affect her ability to recollect or recount the events occurring on the evening of [the offense].\u201d The defendant contended that \u201chis specific requests for discovery triggered the State\u2019s duty to determine if any such impeachment evidence existed and, if so, to disclose the information to the defense.\u201d The North Carolina Supreme Court held that:\nthe information requested exceeds the scope of Brady and the requirements of N.C.G.S. \u00a7 15A-903. The State is not required to conduct an independent investigation to determine possible deficiencies suggested by defendant in [the] State\u2019s evidence. . . . [Defendant's motion was nothing more than a fishing expedition for impeachment evidence and the trial court properly disallowed the motion.\nSmith, 337 N.C. at 663-64, 447 S.E.2d at 379.\nIn the instant case, defendant\u2019s motion does not suggest that Sylvia\u2019s ability to observe and testify to events was impaired by virtue of a mental defect, or by any medication used to treat a mental illness. Nor did defendant allege that information about Sylvia\u2019s mental health was in the possession of the State, or of persons acting on the State\u2019s behalf. At the pretrial hearing, the defendant alleged only that other witnesses would testify Sylvia acted \u201coddly\u201d before the attempt on her husbands\u2019 life, and that Sylvia wrote letters to defendant indicating that she had consulted a psychiatrist and had taken some unidentified prescription medication.\nMoreover, the denial of defendant\u2019s motion did not prevent him from exploring the issue at trial. Sylvia testified that although she was not under a doctor\u2019s care at the time of the shooting, a year earlier she had consulted a psychiatrist who prescribed an antidepressant. She took the medication briefly, before deciding that it did not help her. She also took anti-anxiety medication and sleeping pills on an occasional basis. Sylvia testified that after her arrest, she saw a psychiatrist while in jail, because she was \u201cdazed\u201d and \u201ccried all the time\u201d after the \u201cshock\u201d of the incident and her incarceration. The psychiatrist prescribed antidepressants, but Sylvia again experienced unpleasant side effects, and stopped taking them. Defendant cross-examined Sylvia about her treatment for emotional problems, the medications that had been prescribed, and letters to defendant in which she described her reactions to the drugs. Groves also testified that Sylvia had received psychological counseling about a year before the shooting, and had taken medication for \u201cnerves.\u201d Further, Phil Braswell, a private investigator hired by defendant, testified that when he interviewed Sylvia in jail, she had told him that prior to her arrest she was taking three different medications. We conclude that defendant was sufficiently able to develop this issue at trial. See Newman, 308 N.C. at 254, 302 S.E.2d at 187 (holding trial court did not err by limiting cross-examination where defendant able to \u201cconduct a lengthy and in-depth cross-examination into the past mental condition of the prosecuting witness\u201d and \u201cthe jury had ample opportunity to observe the prosecuting witness\u2019 demeanor and hear her responses to the questions posed so as to form an opinion as to whether her powers of observation, memory and narration were then so impaired that she was not a credible witness\u201d).\nWe conclude that the trial court did not err by denying defendant\u2019s pretrial motion to require the State to investigate in order to learn the identities of any mental health professionals with whom Sylvia had previously sought treatment. We hold that the denial of his motion did not violate defendant\u2019s right to due process. This assignment of error is overruled.\nAlthough the trial court denied defendant\u2019s pretrial motion for Sylvia\u2019s psychiatric treatment records, at some point certain records were forwarded from the jail to the trial court. Defendant\u2019s second argument is that the trial court erred by not providing him with these records. He asserts that the trial court \u201cshould have allowed the defendant access to Sylvia Groves\u2019 medical records because the trial court\u2019s in camera review was tantamount to no review at all.\u201d We disagree.\nThe defendant\u2019s right to exculpatory evidence often must be balanced against the privacy rights of witnesses. State v. Johnson, 145 N.C. App. 51, 55, 549 S.E.2d 574, 577 (2001) (\u201cgovernment entity has a statutorily protected right to maintain confidential records containing sensitive information such as child abuse\u201d). In such situations, \u201ca defendant\u2019s 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\u2019s guilt or innocence.\u201d Id. (citing Pennsylvania v. Ritchie, 480 U.S. 39, 57, 94 L. Ed. 2d 40, 57 (1987)).\nIn the case sub judice, the trial court received a sealed copy of certain records forwarded from the jail where Sylvia was confined pending trial. The trial court examined these records in camera and ruled as follows:\n[U]pon inspection of these records I find nothing in the records that reveals any exculpatory information that would be of any benefit to the defendant. . . . Let the record further reflect that based on what I\u2019ve read I\u2019ve found nothing to be exculpatory, but I will also admit that there are some words in here that I could not make out what the word was. It was written in medical terms, medical language, medical abbreviations, and I could not determine or could not make out what the word was. Essentially I just couldn\u2019t read it.\nDefendant argues on appeal that \u201c[b]ecause the court admitted that the records ... were incomprehensible, the court failed to review the records[.]\u201d We disagree.\nWe first note that defendant failed to preserve this issue for appellate review. N.C.R. App. P. 10(b)(1) (\u201cto preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired . . . [and must] obtain a ruling upon the party\u2019s request, objection or motion\u201d). After announcing its ruling, quoted above, the trial court immediately asked if there was \u201canything further\u201d from either party. Defense counsel offered no response. The trial court\u2019s ruling appears to state clearly that certain individual medical terms were hard to decipher, and not that the records overall were hard to understand. It was defendant\u2019s responsibility to object, or to seek clarification.\nIn addition, this Court has undertaken an independent review of the medical records, and concludes that the trial court correctly ruled that they did not contain exculpatory evidence. This assignment of error is overruled.\nFinally, defendant argues that the trial court committed reversible error by excluding certain cross-examination testimony of Agent Johnson, regarding statements purportedly made by Groves to Officer Perry shortly after the shooting. We conclude that the trial court did not err by excluding this cross-examination testimony.\nAt trial, Groves testified that he had several opportunities to view his assailant, whom he immediately recognized, and that he had provided a description of the shooter shortly after the shooting. However, Groves denied telling a law enforcement officer that \u201cthe man that shot me was wearing checkered pants.\u201d Subsequently, the State called Agent Johnson of the City County Bureau of Identification for Wake County, who testified concerning his collection of crime scene evidence on the night of the shooting. On cross-examination, Johnson denied speaking with Groves, who had already been taken to the hospital when Johnson arrived at the crime scene. He expressly denied having any first-hand knowledge of statements Groves may have made to other law enforcement officers. Johnson testified on cross-examination that when he prepared a report of the incident, he included statements allegedly made by Groves to Officer Perry, another non-testifying law enforcement officer, in which Groves described to Perry what his assailant was wearing. The defendant sought to cross-examine Johnson regarding this description of the shooter\u2019s clothing, and the trial court sustained the prosecutor\u2019s objection to this cross-examination. Defendant then made an offer of proof, which established that, if allowed to testify, Johnson would have stated that Perry informed him that Groves had said the shooter wore \u201csome type of red colored checked pants.\u201d Defendant argues that this cross-examination testimony was admissible as a \u2018prior inconsistent statement\u2019 of Groves, and that its exclusion was reversible error.\n\u201cPrior statements of a witness which are inconsistent with his present testimony are not admissible as substantive evidence because of their hearsay nature. Even so, such prior inconsistent statements are admissible for the purpose of impeachment[.]\u201d State v. Bishop, 346 N.C. 365, 387, 488 S.E.2d 769, 780 (1997) (quoting State v. Lane, 301 N.C. 382, 386, 271 S.E.2d 273, 276 (1980)).\n\u201cWhen a prior inconsistent statement by a witness relates to material facts in the witness\u2019 testimony, the prior statement may be proved by extrinsic evidence.\u201d State v. Jones, 347 N.C. 193, 205, 491 S.E.2d 641, 648 (1997) (citing 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 161 (4th ed. 1993) (hereinafter 1 Broun on Evidence')'). Such extrinsic evidence may include testimony from another witness to whom the inconsistent statement was made. State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996) (allowing cross-examination of officer regarding witness\u2019s prior inconsistent statement to officer). However, in the case sub judice, defendant did not seek to impeach Groves with testimony from Officer Perry, to whom Groves allegedly made the statement. Rather, he tried to introduce cross-examination testimony of Johnson, repeating what Perry told him that Groves had said. This is similar to the situation presented in State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994). In Ward, a witness for the State denied making certain statements regarding the number of gunshots he heard. The defendant attempted to impeach the witness by cross-examining the medical examiner about what a sheriff\u2019s deputy had told the medical examiner that the witness said to the deputy about the number of shots fired. The North Carolina Supreme Court ruled that the trial court properly excluded such cross-examination:\n[T]he making of the [inconsistent] statements must be proved by direct evidence and not by hearsay, and a witness may not be impeached by the inconsistent statements of someone else. . . . \u2018Proof of a prior statement by a witness who heard it at second hand would clearly be inadmissible.\u2019 . . . Because the statement defendant alleges the witness made to the deputy relates to material facts in the testimony, namely, the number of gunshots heard on the night of the killing, it may be proved by others \u2014 the deputy, for example, or a bystander who overheard the witness make the statement to the deputy. However, defendant sought to prove the prior inconsistent statement by a witness who heard second hand from the deputy [what the] neighbor told the deputy ... such second hand proof is clearly inadmissible, and the trial court did not err in excluding it.\nWard at 98, 449 S.E.2d at 727-28 (citing 1 Broun on Evidence \u00a7 159, at 523-28 and \u00a7 161, at 531) (emphasis added). We conclude that, as in Ward, the trial court did not err by excluding this evidence.\nDefendant also argues that the cross-examination testimony was admissible because it was based upon notes in Officer Johnson\u2019s report, which he contends was admissible under N.C.G.S. \u00a7 8C-1, Rule 803(8) (2001), the hearsay exception for public records and reports (\u201cmatters observed pursuant to duty, imposed by law as to which matters there was a duty to report\u201d). However, defendant did not seek to admit the testimony under this theory at trial, and never sought to admit the officer\u2019s report into evidence. Defendant did not preserve this argument for appellate review. N.C.R. App. P. 10(b)(1).\nFinally, even assuming, arguendo, that the statement was admissible, defendant cannot show prejudice by its exclusion. Sylvia and Groves both testified unequivocally that defendant shot Groves. Kehle corroborated Groves\u2019 having identified defendant immediately after the shooting. Sylvia testified that she was the one who offered the description of defendant\u2019s \u2018checkered pants.\u2019 Defendant\u2019s fingerprints were found on a truck in Groves\u2019 driveway. Under N.C.G.S. \u00a7 15A-1443 (2001), the defendant is prejudiced by non-constitutional errors only if \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d Moreover, the \u201cburden of showing such prejudice under this subsection is upon the defendant.\u201d We conclude that there is no reasonable possibility that the outcome of the trial would have been different if Agent Johnson had testified that Officer Perry told him that Groves had described the defendant as wearing checkered pants. This assignment of error is overruled.\nFor the reasons discussed above, we conclude that the defendant received a fair trial, free from prejudicial error. His conviction is, therefore,\nAffirmed.\nJudges McGEE and HUDSON concur.",
        "type": "majority",
        "author": "LEVINSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.",
      "Kurtz and Blum, P.L.L.C., by Seth A. Blum, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL SCOTT LYNN\nNo. COA02-382\n(Filed 15 April 2003)\n1. Discovery\u2014 medical records \u2014 State\u2019s witness \u2014 request that State investigate\nAn attempted murder defendant\u2019s right to due process was not violated by the denial of his motion to require the State to investigate to learn the identities of any mental health professionals from whom an accomplice (and State\u2019s witness) had sought treatment. The motion did not suggest that the witness\u2019s ability to observe and to testify to events was impaired by a mental defect or by any medication used to treat a mental illness; defendant did not allege that information about the witness\u2019s mental health was in the possession of the State; and the denial of the motion did not prevent defendant from exploring the issue at trial.\n2. Discovery\u2014 sealed medical records \u2014 in camera review \u2014 no exculpatory evidence\nThe trial court correctly ruled that the sealed medical records of a witness did not contain exculpatory evidence, even though the court said that certain medical terms were hard to understand. The court did not say that the records were incomprehensible, as defendant contended, and defendant did not preserve that issue for appeal. Moreover, the Court of Appeals conducted an independent review of the records.\n3. Evidence\u2014 hearsay \u2014 statements to nontestifying officer\u2014 related by another officer\nInconsistent statements from an attempted murder victim were properly excluded where they were made to an officer who did not testify and elicited at trial during the cross-examination of an SBI agent. Inconsistent statements must be proven by direct evidence. Moreover, defendant did not move at trial to admit the officer\u2019s notes under the public records and reports exception to the hearsay rule, and there was no reasonable possibility of a different result if the statement had been admitted.\nAppeal by defendant from judgment entered 27 January 1999 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 30 October 2002.\nAttorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.\nKurtz and Blum, P.L.L.C., by Seth A. Blum, for the defendant."
  },
  "file_name": "0217-01",
  "first_page_order": 249,
  "last_page_order": 259
}