MOTION TO VD-DESTROYED EVIDENCE

STATE OF NORTH CAROLINA                       IN THE GENERAL COURT OF JUSTICE

                                                                         SUPERIOR COURT DIVISION

_________ COUNTY

 

STATE OF NORTH CAROLINA,                             

                                                                                         

vs.                                                                                      MOTION TO DISMISS

                                                                                    BASED ON LOSS AND DESTRUCTION

___________________,                                                OF EXCULPATORY EVIDENCE

                            Defendant.                                              

________________________________________________

              NOW COMES the Defendant, _____________, by and through his undersigned counsel, ___________, Assistant Capital Defender, and hereby moves this Honorable Court, pursuant to the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I §§ 19 and 23 of the North Carolina Constitution, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny, Arizona v. Youngblood, 488 U.S., 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) and its progeny, for an Order dismissing all of the charges against the Defendant for the failure of the North Carolina State Bureau of Investigation and/or the ________County Sheriff’s Department in losing and/or destroying evidence that could have been used to establish the Defendant’s innocence.  In support of the foregoing Motion, the Defendant would show unto the Court as follows:

Procedural Background

  1. The Defendant is an indigent charged first degree murder and one count of Robbery with a Dangerous Weapon. 
  1. The Defendant, _____________, is mentally retarded and has been mentally retarded since birth.  Defendant's I.Q. (intelligence quotient) has been placed in the mid 50’s or lower throughout all of his childhood and adult life. Defendant’s I.Q., upon information and belief has never been above 57.
  1. On or about July 9, 1993, someone beat and killed _________________________.
  1. Upon information and belief, the homicide of __________________________ was investigated by SBI Special Agents __________ and _________, along with __________ County Sheriff’s Department Detectives ________________ and ______________.
  1. Upon information and belief, from July 9, 1993 until July 16, 1993, law enforcement had no leads or suspects as to who killed ___________.
  1. Then on July 16, 1993, SA _______ and Detective ________________ took the Defendant, from his place of work at the ___________ to the ________ County Sheriff’s Department in where SA ______ and SA _______ allegedly obtained a statement from defendant, a mentally retarded individual, which purports to implicate him in the murder of ___________.
  1. Upon information and belief, there is no physical evidence that links defendant to the murder of _________ or her residence.
  1. Upon information and belief, the only evidence that purports to link defendant to the murder of ______________ is his alleged confession obtained by SA ______ and SA _______, with the assistance of Detectives ________ and _____________.
  1. SA _______ and _______ County law enforcement zeroed in on defendant because of descriptions given to them by various people within the community.  Upon information and belief, no witness ever identified defendant as having anything to do with the murder of _________.  Law enforcement developed defendant as a suspect based on physical descriptions of an “individual.”
  1. Because of his mental retardation, defendant was found to be incompetent to stand trial for the murder of ___________ and has spent ten years at Dorothea Dix Mental Hospital as being incompetent to stand trial.  In 2003, defendant was declared competent to stand trial and the State re-indicted defendant for the murder of __________________ as well as the charge of Robbery with a Dangerous Weapon.
  1. Although there is an alleged “confession” in this case, several experts, including Dr. _______, former Chief of Forensic Psychiatry and Dorothea Dix Hospital, have testified at a previous hearing that not only is the Defendant incapable of understanding and knowingly and voluntarily waiving his Miranda rights, but also that the “confession” alleged to be defendant's could not have been given by defendant due to his limited intellectual abilities.

The Loss & Destruction of Exculpatory Evidence

  1. During the investigation into the murder of _______________ on July 9, 1993, the ______County Sheriff’s Department and the NC State Bureau of Investigation collected various pieces of physical evidence.
  1. Upon information and belief, the items of evidence collected included a “walking stick” found under the bed of the deceased, which, upon information and belief, the state will allege was the murder weapon in this case.  Upon information and belief, the physical evidence was remanded to the exclusive care, custody, and control of the _________ County Sheriff’s Department.
  1. Upon information and belief, the physical evidence, including the “walking stick,” was sent to the NC SBI lab for analysis at the request of Detectives ________ and _______, which would indicate that the _______ County Sheriff’s Department, and specifically Detectives ___________ and _______, had the care, custody, and control of the physical evidence.
  1. Upon information and belief, the requested analysis of the evidence was performed by the NC SBI lab and the evidence was returned to the exclusive care, custody, and control of the _______ County Sheriff’s Department.
  1. Upon information and belief, the evidence collected from the crime scene and the autopsy and analyzed (by the SBI) in this case included the following:
    1. Brown paper bag containing orange scissors and box containing plastic sandwich bags from bed in bedroom;
    2. Envelope containing twelve (12) latent lifts from:
      1. Inside top window storm door;
      2. Glass top of dresser at foot of bed;
      3. Glass top of dresser at foot of bed;
      4. Glass top of dresser at foot of bed;
      5. Glass top of dresser at foot of bed (two lifts);
      6. Outside of upper panel of storm door;
      7. Phone hand set from living room (two lifts);
      8. Inside upper window storm door
    1. Brown/tan expandable suitcase from closet off bedroom;
    2. Brown paper bag containing “walking stick” from under the bed in the bedroom;
    3. Brown paper bag containing section of tongue and groove flooring from the closet in the bedroom (possible shoe track on boards);
    4. Envelope containing inked impressions of the victim from the autopsy; and
    5. Sexual assault evidence kit from autopsy.
  1. Upon information and belief, evidence was also obtained from the Defendant, consisting of the following
    1. Fingerprint cards with defendant's fingerprints;
    2. 1 pair of tennis shoes, white and red in color, size 9;
    3. 1 pair of pajamas (just top), blue in color, small size;
    4. 1 pair of bleached blue jeans, size 29/30 mens.
  1. Upon information and belief, the items of clothing taken from the Defendant were taken from his residence on or about the time of his arrest (which occurred on July 16, 1993).  Interestingly, in the discovery provided to the defense, there are no documents showing that a search of the Defendant’s residence took place and no documents showing what items were seized from the Defendant and where or when such seizure took place.
  1. While the evidence collected from the crime scene was documented in an SBI report, upon information and belief, the evidence allegedly collected from defendant has not been documented in any form other than the Request for Examination of Physical Evidence, which was sent with the evidence to the SBI laboratory.
  1. Upon information, the evidence listed was seized in July 1993, analyzed by the SBI lab, and returned to the exclusive care, custody, and control of the _______ County Sheriff’s Department.
  1. When the Defendant was re-indicted for the alleged crimes, in 2003, undersigned defense counsel requested to examine all of the physical evidence, which was collected in this case.
  1. After the request to examine the physical evidence, the undersigned counsel was informed by the prosecutor that much, perhaps all, of the physical evidence in the case was missing and lost.
  1. Upon information and belief, the aforementioned physical evidence was in the exclusive care, custody, and control of the _______ County Sheriff’s Department when it was lost.
  1. Upon information and belief, the nature of the evidence, after being analyzed by the NC State Bureau of Investigation laboratory, was of such a nature as to be exculpatory to the Defendant.  In other words, the evidence pointed away from ________ as being the perpetrator of the crimes with which he is charged.

The Finger and Palm Prints

  1. Specifically, of the twelve (12) latent lifts from the crime scene and from the “walking stick” seized from the crime scene, a total of three (3) latent palm prints were found to be “of value for identification purposes.”
  1. According to the NCSBI laboratory, when the three (3) latent palm prints were compared to the “known inked impressions” of Defendant no identifications could be made.

The Testing of Defendant’s Clothes for the Presence of Blood

  1. Further, the tennis shoes, the pajama top, and the blue jeans seized from Defendant were sent to the NCSBI laboratory to be tested for the presence of blood.  The items were tested and the tests failed to reveal the presence of any blood.

The Hairs Recovered from the Alleged Murder Weapon

  1. Further, it was asserted by law enforcement that there were “hairs” recovered from the walking stick, alleged to be the murder weapon in this case.  The hairs were tested by the NCSBI laboratory.
  1. On February 8, 1994, a report was generated by the NCSBI laboratory indicating that some of the hairs were pigmented and others were unpigmented.  The NCSBI lab indicated that the numerous hairs exhibited Caucasian racial characteristics.  Yet, the report goes on to state that some of the hairs were consistent with hairs taken from the victim, defendant who was African-American.
  1. Handwritten on the Februry 8, 1994 report is the following:   “Another/Correct copy will be disseminated”.  In addition, the word “Caucasian” is circled.
  1. On February 22, 1994, a second NC SBI lab report was issued regarding the hairs taken from the walking stick.  The second NC SBI lab report is almost identical to the February 8, 1994 lab report, however, in the second lab report, the word “Negroid” has been substituted for the word “Caucasian.”
  1. Further, while both reports mention the presence of both pigmented and un-pigmented hairs, with the pigmented hairs being found to be consistent with the head hairs of the victim, both reports state that “No opinion can be rendered as to the individual origin of the un-pigmented hairs.”

The Testimony of Special Agent __________ at the April 19, 2005 Hearing

  1. On April 19, 2005, a hearing was held concerning the admissibility of the alleged statement, allegedly made by Defendant on July 16, 1993.  At that hearing, under oath, Special Agent _______, the lead agent in this case for the NC SBI, testified that there is no physical evidence linking the Defendant, the crimes with which he is charged.

The Evidence Collected and Held by the Anson County Sheriff’s Department

Was Exculpatory Evidence Pursuant to Brady v. Maryland

  1. Based upon the analysis of the evidence collected in this case, which, upon information and belief, is no longer in existence, the evidence pointed away from defemdamt as the perpetrator of the crimes charged.  As such, the evidence collected in this case was exculpatory evidence, as that term has been defined by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny.  As that evidence, the analysis of that evidence, and the results of said analysis were exculpatory, that evidence should have been turned over to the defense in this case and/or preserved so that the defense could examine, test, and use that evidence at trial if it chose to do so.
  1. In other words, the State has lost and/or destroyed evidence that could help the Defendant at trial to show his innocence.  Upon information and belief, said evidence, which indicated the Defendant did not commit the crimes with which he is charged, was lost and/or destroyed while it was in the exclusive care, custody, and control of the _______ County Sheriff’s Department, and while it was accessible to _______ County Sheriff’s Department Detectives ____________ and ___________________.

Detectives _________ and _______ and

Their Federal RICO Charges & Convictions

  1. Detectives _____________ and ____________ were detectives from the _________ County Sheriff’s Department that investigated the death of ______________ on behalf of the _________ County Sheriff’s Department.
  1. Upon information and belief, Detectives ____________ and ___________ were the lead detectives investigating the victim's murder on behalf of the _________ County Sheriff’s Department and/or played significant roles in the investigation of victim's homicide, including the handing of evidence collected in connection with this case.
  1. In fact, Detectives ________________ and _________ were the detectives listed on the Request for Examination of Physical Evidence forms as being the officer requesting that the NC SBI lab test the evidence collected in connection with this case.
  1. Upon information and belief, Detectives ___________ and ______ as detectives with the ______ County Sheriff’s Department, had access to the evidence locker/storage facility of the _______ County Sheriff’s Department.
  1. On January 8, 1997, both Detective __________ and ____________were indicted in the US District Court for the Western District of North Carolina for charges including, among other things, Racketeering and conspiracy to commit Racketeering. 
  1. On August 26, 1998, Detective ____________ pleaded guilty to one count of Racketeering and one count of Conspiracy to Racketeer.  The judgment and indictment in the case against Detective ___________ is hereby attached to this motion as Defendant’s Exhibit ‘A’.
  1. On August 26, 1998, Detective ____________ pleaded guilty to Racketeering.  The judgment and indictment in the case against Detective ___________ is hereby attached to this motion as Defendant’s Exhibit ‘B’.
  1. One of the charges of racketeering dates back to January 1994, only six months after the arrest of the Defendant.
  1. Among some of the factual allegations leveled against Detectives ___________ and _______were the facts that the two detectives concealed and attempted to conceal their illegal activities by:
    1. providing false, misleading, and incomplete information to the _______ County, North Carolina District Attorney’s office;
    1. creating false, misleading, and incomplete reports, records; and other documentation; and
    1. by using ________ County Sheriff’s Department stationery and other forms to perpetuate and conceal their illegal activities.

Argument

  1. Pursuant to Arizona v. Youngblood, 488 U.S., 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), when law enforcement, acting in bad faith, destroys or fails to preserve evidence which is potentially exculpatory, a violation of due process under the 14th Amendment to the United States Constitution occurs.
  1. Further, Arizona v. Youngblood sets forth that the test for whether law enforcement acted in bad faith “turns on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.  Youngblood, 488 U.S. at 56 n.*.
  1. The holding that bad faith of law enforcement turns on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed is the standard by which cases involving due process violations as a result of destroyed exculpatory evidence have been decided.  United States v. Brown, 119 Fed. Appx. 494, 2005 U.S. App. LEXIS 436 (4th Cir. V.A., 2005), United States v. Caldwell, 1999 U.S. App. LEXIS 29886 (4th Cir. N.C., 1999).
  1. All of the documents given to the defense in discovery, which concern the physical evidence in question, in as far as the handling, request for testing, and disposition of said evidence, indicate that both Detective Hutchinson and Poplin had the responsibility for the handling of such evidence.
  1. On the Request for Examination of Evidence, which includes the physical evidence enumerated above, the “Requesting Officer” are noted to be Det. __________. and Lt. __________and the “Requesting Agency” is noted as __________ County Sheriff’s Department.  A copy of the Request for Examination of Physical Evidence is attached to this Motion as “Defendant’s Exhibit ‘C’”.
  1. The NC SBI Laboratory Report dated July 30, 1993, which references 10 different items of evidence, states that “Items #1 through #6, #8, #10, photographs and negatives are enclosed and being returned to the addressee via United Parcel Service.”  For purposes of clarification, the item numbers refer to the following pieces of evidence:
    1. Item # 1 – One (1) pair of orange scissors and one box of sandwich bags;
    2. Item # 2 – Twelve (12) latent lifts;
    3. Item # 3 – One (1) tan suitcase;
    4. Item # 4 – One (1) walking stick;
    5. Item # 5 – Eight (8) sections of tounge and groove flooring;
    6. Item # 6 – Known inked impressions bearing the victim's name;
    7. Item # 8 – Known inked impressions bearing the name ___________;
    8. Item # 10 – Known inked impressions bearing the defendant's name..

The NC SBI Laboratory Report dated July 30, 1993 is attached to this Motion as “Defendant’s Exhibit ‘D’”.

  1. The NC SBI Laboratory Report dated July 30, 1993 is significant because the addressee to which evidence items #1 through # 6, #8 and #10 were returned was Detective _________ of the ________ County Sheriff’s Department.
  1. Upon information and belief, the items of evidence enumerated in the NC SBI Laboratory Report dated July 30, 1993 have been lost and/or destroyed.
  1. The NC SBI Laboratory Report dated February 8, 1994, references four different items of evidence as follows:

a.              Item # 4A:   Hairs from a walking stick;

b.              Item # 7i:   Pubic hair combings from victim;

c.              Item # 7j:   Pubic hairs from victim;

d.              Item # 7K:   Head hairs from victim.

  1. The NC SBI Laboratory Report dated February 8, 1994 is attached to this Motion as “Defendant’s Exhibit ‘E’”.
  1. The NC SBI Laboratory Report dated February 8, 1994 is significant because it appears that the evidence was returned to the addressee of the report, Detective ____________. of the _________County Sheriff’s Department, along with the lab report indicating the result of the tests on the evidence.
  1. The NC SBI Laboratory Report dated July 29, 1993, and attached to this Motion as “Defendant’s Exhibit ‘F’”, is significant because it enumerates physical evidence, which was obtained in the investigation of the death of victim.  The evidence was sent to the NC SBI Laboratory for testing and was subsequently returned to Detective _____________ of the _________ County Sheriff’s Department, along with the lab report indicating the results of the testing.
  1. The NC SBI Laboratory Report, dated February 22, 1994, and attached to this Motion as “Defendant’s Exhibit ‘G’”, is significant because it enumerates physical evidence, which was obtained in the investigation of the death of victim.  The evidence was sent to the NC SBI Laboratory for testing and was subsequently returned to Detective ____________ of the __________ County Sheriff’s Department, along with the lab report indicating the results of the testing.
  1. In each of the lab reports, the results of the testing indicated that there was no physical evidence linking defendant to the crime scene and no physical evidence from the crime scene found on or about victim.
  1. Therefore, each of the lab reports, which were sent to Detective ___________., of the _______ County Sheriff’s Department, along with the physical evidence, plainly indicated that there was no link through physical evidence between defendant and the murder of victim.
  1. Thus, each of the lab reports, which were sent to Detective ____________, of the _______ County Sheriff’s Department, plainly indicated the exculpatory nature of the physical evidence as it related to the charges against defendant.
  1. The lab reports indicating the exculpatory nature of the evidence, and the physical evidence itself, were returned to the ________ County Sheriff’s Department directly to Detective ___________.  Thus, Detective _________ and the _______ County Sheriff’s Department knew of the exculpatory nature of the physical evidence and either lost or destroyed that exculpatory evidence in violation of the basic right to due process to which Floyd Brown is entitled.

WHEREFORE, the Defendant respectfully prays unto this Honorable Court for the following relief:

1.              That the charges against defendant be dismissed with prejudice for the violation of his due process rights, guaranteed to him under the 14th Amendment to the United States Constitution, through the loss and/or destruction of exculpatory evidence;

  1.               That, in the alternative, should this case be tried and reach the jury, the Court give the following special instruction to the jury:

Evidence has been received which tends to show that physical evidence collected in the investigation of this case was in the exclusive possession, care, custody, and control of the _________ County Sheriff’s Department and has been lost and/or destroyed even though the ___________ County Sheriff’s Department was aware that the evidence could show the Defendant, did not commit the crimes of murder and robbery with a dangerous weapon.  Based upon the loss and/or destruction of this evidence, you should infer that the lost and/or destroyed evidence would have been damaging to the prosecution’s case and would have indicated that the Defendant was not guilty of the crimes with which he is charged.

 

  1.                 That should the defense elect to call either former Detective _________ and/or former Detective _________ to the stand that they be declared hostile witnesses and that defense counsel be allowed to examine them through the use of leading questions and cross-examination; and
  1.               For such other and further relief to which the Defendant may be entitled and which the Court may deem just and proper.

This the _______ day of ___________, 20___.

                                          By:___________________________

                                          Attorney for Defendant

                                                                     Certificate of Service

 

              This shall certify that a copy of the foregoing Motion To Dismiss Based on Loss and Destruction of Exculpatory Evidence was this day served upon the District Attorney by the following method:

___X__              depositing a copy hereof in a postpaid wrapper in a post office or official depository under the exclusive care, custody, and control of the United States Postal Service, properly addressed to Office of the District Attorney;

_____              by personally serving the Office of the District Attorney via hand delivery;

_____              by transmitting a copy via facsimile transmittal to the Office of the District Attorney; and/or

_____              by depositing a copy in the box for the Office of the District Attorney maintained by the Clerk of Superior Court.

              This the ________ day of __________, 20______.

                                                                      By:___________________________

                                                                     Attorney for Defendant