In this capital case, the prosecution’s failure to disclose material evidence violated the defendant’s due process rights. At trial the defendant unsuccessfully raised an alibi defense and was convicted. The case was before the Court after the defendant’s unsuccessful post-conviction Brady claim. Three pieces of evidence were at issue. First, regarding State’s witness Scott, the prosecution withheld police records showing that two of Scott’s fellow inmates had made statements that cast doubt on Scott’s credibility. One inmate reported hearing Scott say that he wanted to make sure the defendant got “the needle cause he jacked over me.” The other inmate told investigators that he had witnessed the murder. However, he recanted the next day, explaining that “Scott had told him what to say” and had suggested that lying about having witnessed the murder “would help him get out of jail.” Second, regarding State’s witness Brown, the prosecution failed to disclose that, contrary to its assertions at trial that Brown, who was serving a 15-year sentence, “hasn’t asked for a thing,” Brown had twice sought a deal to reduce his existing sentence in exchange for his testimony. And third, the prosecution failed to turn over medical records on Randy Hutchinson. According to Scott, on the night of the murder, Hutchinson had run into the street to flag down the victim, pulled the victim out of his car, shoved him into the cargo space, and crawled into the cargo space himself. But Hutchinson’s medical records revealed that, nine days before the murder, Hutchinson had undergone knee surgery to repair a ruptured patellar tendon. An expert witness testified at the state collateral-review hearing that Hutchinson’s surgically repaired knee could not have withstood running, bending, or lifting substantial weight. The State presented an expert witness who disagreed regarding Hutchinson’s physical fitness. Concluding that the state court erred by denying the defendant’s Brady claim, the Court stated: “Beyond doubt, the newly revealed evidence suffices to undermine confidence in [the defendant’s] conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than [the defendant’s] alibi.” It continued: “Even if the jury—armed with all of this new evidence—could have voted to convict [the defendant], we have no confidence that it would have done so.” (quotations omitted). It further found that in reaching the opposite conclusion, the state post-conviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively, emphasized reasons a juror might disregard new evidence while ignoring reasons she might not, and failed even to mention the statements of the two inmates impeaching Scott.

Defendant filed an MAR challenging his 1993 convictions and death sentence for burglary, rape, armed robbery, and two counts of first-degree murder. The MAR alleged that the state failed to disclose material and exculpatory evidence in violation of Brady. At his original trial, the state’s primary evidence against the defendant included his fingerprint on a knife found next to one victim’s body, a partial DNA match between the defendant and a semen sample recovered from one of the victims, and testimony from a witness that the defendant spent a large amount of money on drugs shortly after the victims were robbed and murdered. The defendant made several discovery requests prior to trial in 1993, but the evidence at issue in this MAR was not produced. Part of the additional evidence was voluntarily provided to postconviction counsel in 2011, while other evidence was located by defense counsel in the attic of Whiteville City Hall. The undisclosed evidence fell into four categories: (i) forensic testing on additional hair, fiber, fingerprint, and blood samples that were not a match to the defendant; (ii) a prior interview with the testifying witness in which she said the defendant had only a small amount of money on him around the time of the crimes; (iii) reports about glass particles found in the defendant’s shoes that did not match the broken window glass at the crime scene, and additional cash found in the victim’s purse; and (iv) investigative materials on two undisclosed alternate suspects.

The trial court denied the MAR, finding that the defendant failed to show prejudice, and the defendant appealed. On review, the state Supreme Court considered how the undisclosed evidence could have been used to either negate or cast doubt upon the principal evidence offered by the state, and was “sufficiently disturbed by the extent of the withheld evidence in this case, and by the materiality of that evidence, that it undermines our confidence in the jury’s verdict.” The trial court’s denial of the MAR was therefore reversed, and the case was remanded with instructions to grant the MAR and order a new trial.

Justice Newby dissented, and would have held that the defendant failed to demonstrate a reasonable probability that the jury would have reached a different result even if the additional evidence had been made available at trial.

The defendant was found guilty by a Cleveland County jury of impaired driving and resisting a public officer and was found responsible for possession of open container. He appealed, challenging the denial of his motion to dismiss, the denial of his mid-trial motion to suppress, an evidentiary ruling, and alleging constitutional violations for lost evidence. The Court of Appeals unanimously affirmed.

(1) The defendant claimed there was insufficient evidence that he operated the vehicle while impaired. As to operation, the defendant was found asleep behind the wheel with the car running in the middle of the road and had a bottle of vodka between his legs. No passengers were present, and the defendant asked the officer if he could move the car, revving the engine several times. He also used the driver side door to exit the vehicle. This was sufficient to establish operation. “An individual who is asleep behind the wheel of a car with the engine running is in actual physical control of the car, thus driving the car within the meaning of the statute.”  As to impairment, while the defendant’s blood alcohol content was only 0.07, the defendant’s blood revealed the presence of marijuana, amphetamine and methamphetamine. In addition to the blood test, the defendant “failed” horizontal and vertical gaze nystagmus tests, refused a breath test, had a strong odor of alcohol, was “confused and disoriented,” and exhibited other signs of impairment. This was sufficient evidence of impairment.

The defendant also claimed there was insufficient evidence to support his conviction for resisting a public officer. Specifically, he argued that he was merely confused and in pain at the time of his interactions with the officers, and that this was the cause of his “negative interactions” with the officers. The court rejected this argument, noting: “The conduct proscribed under [N.C. Gen. Stat. §] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in discharge of his duties.” Here, the defendant committed multiple acts that obstructed the officer’s duties. The defendant would not roll down his window when asked by the officer, he repeatedly tried to start his car after being commanded to stop, he refused a breath test at least 10 times, and repeatedly put his hands in his pockets during the nystagmus testing after being instructed not to do so. He also refused to get into the patrol car once arrested and refused to voluntarily allow his blood to be drawn after a search warrant for it was obtained. In the court’s words:

Through these actions and his inactions, Defendant directly opposed the officers in their efforts to discharge their investigative duties of identifying him, speaking with him, and performing field sobriety tests. Thus, Defendant resisted the officers within the meaning of the statute.

The motion to dismiss for insufficient evidence of resisting a public officer was therefore properly denied.

The defendant also claimed his motion to dismiss for insufficiency as to the possession of open container of alcohol should have been granted. He pointed out that the bottle found in his car was not missing much alcohol and the officer admitted to emptying the bottle on the side of the road. Rejecting this argument, the court observed:

[T]he amount of alcohol missing from the container is irrelevant for purposes of this offense, because a contained is opened ‘[i]f the seal on [the] container of alcoholic beverages has been broken.’ Additionally, the fact that [the officer] poured out the contents of the container goes to the weight of the evidence, not its sufficiency.

The trial court therefore did not err in denying the motion for insufficient evidence for this offense.

(2) As to the suppression motion, the issue was preserved despite the motion being untimely because the court considered and ruled on the motion. The defendant argued that the forcible blood draw violated his rights to be free to unreasonable force. He did not challenge the validity of the search warrant authorizing the blood draw. Claims of excessive force are evaluated under the Fourth Amendment reasonableness standard. Graham v. Conner, 490 U.S. 386 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 22 (citations omitted). Here, the officer had a valid warrant (obtained after the defendant’s repeated refusals to provide a breath sample), and the blood draw was performed by medical professionals at a hospital. Any acts of force by police to obtain the blood sample were the result of the defendant’s own resistance. The court observed:

Defendant had no right to resist the execution of a search warrant, and in fact, his actions rose to the level of criminal conduct under N.C. Gen. Stat. § 14-223, for resisting a public officer. . . Defendant ‘cannot resist a lawful warrant and be rewarded with the exclusion of the evidence.’

The force used to effectuate the blood draw was reasonable under the circumstances and did not violate the Fourth Amendment.

The defendant also argued that his motion to suppress should have been granted for failure of the State to show that his blood was drawn by a qualified professional. G.S. 20-139.1(c) provides that doctor, registered nurse, EMT, or other qualified person shall take the blood sample. “An officer’s trial testimony regarding the qualifications of the person who withdrew the blood is sufficient evidence of the person’s qualifications.” Here, the officer testified that a nurse drew the blood, although he could not identify her by name and no other proof of her qualifications was admitted.  This was sufficient evidence that the blood was drawn by qualified person, and this argument was rejected.

(3) The trial court admitted into evidence the bottle found between the defendant’s legs at the time of arrest. According to the defendant, this was an abuse of discretion because the officers admitted to destroying the content of the bottle (by pouring it out) before trial. The defendant argued this was prejudicial and required a new trial. Because the defendant offered no authority that admission of the bottle into evidence was error, this argument was treated as abandoned and not considered.

(4) During the arrest, the stopping officer forgot to turn on his body camera and only began recording the investigation mid-way through. The officer also failed to record interactions with the defendant during processing after arrest in violation of department policy. The trial court found no constitutional violation. The defendant complained on appeal that the “intentional suppression” of this camera footage violated his Sixth and Fourteenth Amendment rights and sought dismissal or a new trial. However, the defendant only argued the Fourteenth Amendment Brady violation on appeal. His Sixth Amendment argument was therefore abandoned and waived.

As to the alleged Brady violation, the defendant did not seek dismissal in the trial court. “We are therefore precluded from reviewing the denial of any such motion, and Defendant’s request that this Court ‘dismiss the prosecution against him’ is itself dismissed.” However, the defendant’s argument at suppression that the failure to record the blood draw violated due process and warranted suppression was preserved. Under Brady v. Maryland, 373 U.S. 83 (1963), suppression of material evidence relevant to guilt or punishment violates due process, regardless of the government’s good or bad faith. Here though, there was no evidence that the State suppressed anything—the video footage was simply not created. Brady rights apply to materials within the possession of the State. “Defendant essentially asks this Court to extend Brady’s holding to include evidence not collected by an officer, which we decline to do.” There was also no indication that the video footage would have been helpful to the defendant. The court therefore rejected this claim. “Although the officers’ failure to record the interaction violated departmental policy, such violation did not amount to a denial of Defendant’s due process rights under Brady in this case.”

In this assault on a government officer case, no Brady violation occurred when recordings from police body cameras were reviewed by the defendant’s original trial counsel and then destroyed pursuant to the police department’s evidence retention schedule. The defendant’s original trial counsel reviewed the video recordings but opted not to obtain copies or use the footage at the defendant’s district court trial. The defendant was convicted and appealed for trial de novo to superior court. In the meantime, the original recordings were destroyed in accordance with the police department’s evidence retention schedule. The defendant’s new trial counsel moved for a continuance to allow time for counsel to prepare a motion to dismiss, arguing that such a remedy was warranted because the recordings had been destroyed and thus were unavailable for use by the defense. The trial court denied the motion. The defendant was convicted and appealed. The court stated: “Defense counsel’s decision not to make or preserve copies of the videos — regardless of counsel’s reason for declining to do so — cannot serve as a basis for arguing a Brady violation was committed by the State.” 

In this misdemeanor DWI case the trial court did not err by denying the defendant’s motions to examine the Intoximeter source code. The court rejected the defendant’s argument that the source code was Brady evidence, reasoning that he failed to show that it was favorable and material. The court noted that the jury found the defendant guilty under both prongs of the DWI statute. The court also rejected the defendant’s argument that under Crawford and the confrontation clause he was entitled to the source code.