STATE OF NORTH CAROLINA            IN THE GENERAL COURT OF JUSTICE

COUNTY OF UNION                                SUPERIOR COURT DIVISION

                                                      FILE NOS.:

 

 

STATE OF NORTH CAROLINA            )

                                                      )        MOTION FOR PRODUCTION OF

vs.                                                   )        REPORT, UNDERLYING DATA

                                                      )        AND INFORMATION BY

MICHAEL RODNEY MCKEE,               )        APPOINTED EXPERTS

                                         Defendant  )

 

         NOW COMES THE STATE OF NORTH CAROLINA, by and through the undersigned Assistant District Attorney, and moves this Court to Order the production of a report by any defense expert the defendant intends to call as a witness, either at the guilt or sentencing phases, in the above captioned cases; as well as any notes, letters, tests, test results, memorandum, and interview notes used by the expert in formulating his/her opinion, pursuant to N.C.G.S. 15A-905.

 

         In support of said Motion, the State shows the Court the following:

 

1. The defendant is charged with [list charges]

 

2. That the State has complied, and continues to comply with, its statutory and constitutional discovery obligations; and,

 

3. The State has requested reciprocal discovery from the defendant pursuant to N.C.G.S. 15A-905 and 907; and,

 

4. The State believes that the defendant intends to call one or more of these expert witnesses to testify on his behalf at the guilt and/or sentencing phases of the above captioned cases; and,

 

5. If this appointed expert has examined or does examine the defendant, the evidence, the crime scene, etc., and never prepares a written report, the State’s ability to cross examine the expert would be fundamentally and unfairly restricted; and,

 

6. Additionally, if this appointed expert is not ordered to bring copies of all notes, letters, test results, memorandum, notes of interviews with the defendant and/or other parties either directly or indirectly consulted by the expert witness or whose information was provided to the expert witness and considered by him or her in reaching any opinion, then the State’s ability to cross examine the expert would be fundamentally and unfairly restricted.

 

7. In State v. Bacon, 337 N.C. 66 (1994) the North Carolina Supreme Court upheld the trial court’s order that the defendant produce a report by a defense expert if the defendant intends to call the expert witness either at the guilty phase or at the sentencing phase.  The Court addressed the issues raised above by the State and stated: “The trial court merely addressed the district attorney’s concern that the expert would examine the defendant and never prepare a written report, thus hindering the State’s ability to cross examine the expert.  By stating in its order that defense counsel must prepare a report if the expert’s examination was to be used at trial, the trial court was encouraging fairness to both sides in the preparation of their case.” Ibid., at 84-85; and,

 

8. Similarly, in State v. Lee, 335 N.C. 244 (1994) the North Carolina Supreme Court directly addressed the issue of a mental health expert being required to prepare a report, noting that: “N.C.G.S. 15A-905(b) provides for the inspection and copying by the State of reports of mental examinations which relate to the testimony of a witness.  It does not mention the authority of the court to require that a written report be prepared, but we believe that within the meaning of the statute is the requirement that the State be provided in advance of the witness’ testimony [emphasis added] with a meaningful report which the State can use in preparation for trial.” Ibid., at 291; and,

 

9. And again, in State v. Warren, 347 N.C. 309 (1997), the Supreme Court upheld a trial court’s order to allow discovery of a defense mental health expert’s reports and notes at trial even though that expert did not testify.  The State sought to use the material to cross examine another defense expert.  This second testifying expert reviewed, but did not rely on, this material in formulating his opinion; and,

 

10.  N.C.G.S. 8C-1, Rule 705, allows the adverse party in cross-examination of an expert witness to require the expert witness to disclose the underlying facts or data of his or her opinion or inference.  In order for the State to be able to fairly and competently cross-examine a defense expert, the State must be allowed to examine said information and should not be required to rely on the expert’s memory or recollection of such information; and,

 

11. If the State is not provided with the underlying tests, results, documents, and bases for the defendant expert’s opinion, then the State will be forced to seek a recess or continuance in order to consult the State’s experts on the testing validity and to prepare the cross-examination of the defense expert, none of which will serve the fundamental judicial goals of fairness and economy; and,

 

12. If the defendant is not ordered to require his expert to bring such information with him or her at the time the expert testifies, or to produce such information prior to testifying, the State will be unfairly restricted in its cross-examination of the expert.  SEE State v. McCarver, 341 N.C. 364 (1995) cert. denied 517 U.S. 110 (1996), holding that the State is entitled to the defendant’s answers to psychiatric tests as part of statutory discovery.  SEE State v. Atkins, 349 N.C. 62 (1998) as it also relates to the issues discussed.

 

WHEREFORE, the State moves the Court to order the defendant, pursuant ot the above authorities and N.C.G.S. 15A-905:

 

1. To provide to the State a written report by any defense expert appointed by the Court if the defendant intends to call the expert at either guilt or above captioned cases; and,

 

2. To inform the Court and the State as soon as the defendant knows that he intends to call any such defense expert; and,

 

 

3. To provide to the State either prior to calling the expert witness to the stand, or at the end of said witness’ testimony, all notes, letters, tests, test results, memorandum, notes of interviews with the defendant and/or other parties either directly or indirectly consulted by the defense expert in reaching his/her opinion or inference; and,

 

4. To provide to the State, at least the Wednesday of the week prior to trial, copies of the following tests administered by any mental health professional on the defendant and the defendant’s answers used as a basis for an expert’s opinion of the defendant’s mental state:

 

a.     The MMPI (Minnesota Multiphasic Personality Inventory) I and

II; and,

b.    The Rorschach Test (including the inkblots as well as the

      defendant’s responses); and,

c.     The Thematic Apperception Test (including the pictures as well as the defendant’s responses); and,

d.    The Fill in the Blank Test (including the defendant’s answers); and,

e.     Wechsler Adult Intelligence Scale (WAIS or WAIS-R) (including the questins as well as the answers); and,

f.      Any other test or tests used by the Expert to base his opinion of the defendant’s mental state.

 

This the ____ day of __________________, 200__.

 

                                            

                                             ___________________________

                                                               Timothy R. Rodgers

                                                               Assistant District Attorney

                                                               20^th Prosecutorial District

                                                               P.O. 1065

                                             Monroe, North Carolina 28111

                                             (704)-289-3340