In this drug trafficking case, the trial court did not err by denying the defendant’s motion to dismiss all charges due to the State’s failure to preserve and disclose a blank audio recording of a conversation between an accomplice and the defendant. After the accomplice Stanley was discovered with more than 2 pounds of methamphetamine in his vehicle, he told officers that the defendant paid him and a passenger to pick up the drugs in Atlanta. Stanley agreed to help officers establish that the defendant was involved by arranging a control delivery of artificial methamphetamine. With Lt. Moody present, Stanley used a cell phone to call the defendant to arrange a pick up at a specified location. The defendant’s associates were arrested when they arrived at the site and testified as witnesses for the State against the defendant. During trial, defense counsel asked Moody on cross-examination if he attempted to record the telephone conversations between Stanley and the defendant. Moody said that he tried to do so with appropriate equipment but realized later that he had failed to record the call. Defense counsel told the trial court that no information had been provided in discovery about Moody’s attempt to record the call. After questioning Moody outside of the presence of the jury, the defendant filed a motion for sanctions seeking dismissal of the charges for a willful violation of the discovery statutes and his constitutional rights. The trial court denied the motion. The defendant was convicted and appealed. The defendant argued that the State violated his Brady rights by not preserving and disclosing the blank audio recording of the conversation. The court disagreed. The defendant had the opportunity to question Stanley about the phone call, cross-examine Moody about destruction of the blank recording, and argue the significance of the blank recording to the jury. Although the blank recording could have been potentially useful, the defendant failed to show bad faith by Moody. Moreover, while the evidence may have had the potential to be favorable, the defendant failed to show that it was material. In this respect, the court rejected the notion that the blank recording implicated Stanley’s credibility.

(1) The trial court erred by entering a pretrial order dismissing, under G.S. 15A-954(a)(4), murder, child abuse, and sexual assault charges against the defendant. The statute allows a trial court to dismiss charges if it finds that the defendant's constitutional rights have been flagrantly violated causing irreparable prejudice so that there is no remedy but to dismiss the prosecution. The court held that the trial court erred by finding that the State violated the defendant’s Brady rights with respect to: a polygraph test of a woman connected to the incident; a SBI report regarding testing for the presence of blood on the victim’s underwear and sleepwear; and information about crime lab practices and procedures. It reasoned, in part, that the State was not constitutionally required to disclose the evidence prior to the defendant’s plea. Additionally, because the defendant’s guilty plea was subsequently vacated and the defendant had the evidence by the time of the pretrial motion, he received it in time to make use of it at trial. The court also found that the trial court erred by concluding that the prosecutor intentionally presented false evidence at the plea hearing by stating that there was blood on the victim’s underwear. The court determined that whether such blood existed was not material under the circumstances, which included, in part, substantial independent evidence that the victim was bleeding and the fact that no one else involved was so injured. Also, because the defendant’s guilty plea was vacated, he already received any relief that would be ordered in the event of a violation. Next, the court held that the trial court erred by concluding that the State improperly used a threat of the death penalty to coerce a plea while withholding critical information to which the defendant was entitled and thus flagrantly violating the defendant’s constitutional rights. The court reasoned that the State was entitled to pursue the case capitally and no Brady violation occurred. (2) The trial court erred by concluding that the State’s case should be dismissed because of statutory discovery violations. With regard to the trial court’s conclusion that the State’s disclosure was deficient with respect to the SBI lab report, the court rejected the notion that the law requires either an affirmative explanation of the extent and import of each test and test result. It reasoned: this “would amount to requiring the creation of an otherwise nonexistent narrative explaining the nature, extent, and import of what the analyst did.” Instead it concluded that the State need only provide information that the analyst generated during the course of his or her work, as was done in this case. With regard to polygraph evidence, the court concluded that it was not discoverable.