State v. Foushee, 234 N.C. App. 71 (May. 20, 2014)

The trial court erred by dismissing charges after finding that the State violated the discovery statutes by failing to obtain and preserve a pawn shop surveillance video of the alleged transaction at issue. On 7 August 2012, defense counsel notified that State that there was reason to believe another person had been at the pawn shop on the date of the alleged offense and inquired if the State had obtained a surveillance video from the pawn shop. On 18 February 2013, trial counsel made another inquiry about the video. The prosecutor then spoke with an investigator who went to the pawn shop and learned that the video had been destroyed six months ago. Before the trial court, the defendant successfully argued that the State was “aware of evidence that could be exculpatory and acted with negligence to allow it to be destroyed.” On appeal, the court rejected this argument, noting that there was no evidence that the video was ever in the State’s possession and under the discovery statutes, the State need only disclose matters in its possession; it need not conduct an independent investigation to locate evidence favorable to a defendant.