Howard v. City of Durham
| Decision Date | 02 November 2021 |
| Docket Number | 1:17cv477 |
| Parties | DARRYL HOWARD Plaintiff, v. CITY OF DURHAM, et. al, Defendants. |
| Court | U.S. District Court — Middle District of North Carolina |
This case arises out of the conviction and incarceration of Plaintiff Darryl Howard for the 1991 murders of Doris and Nishonda Washington, which conviction was subsequently overturned in 2016 based on the discovery of exculpatory DNA evidence and the State of North Carolina's election to dismiss all criminal charges against Howard. Howard alleges that Defendants Darrell Dowdy and Milton Smith (“Defendants”) fabricated and suppressed evidence to obtain his conviction.[1] Before the court are multiple motions in limine filed by the parties in anticipation of trial. For the reasons set forth below, the motions will be granted in part and denied in part.
The background of this case is extensively set out in this court's prior summary judgment order. Howard v. City of Durham, 487 F.Supp.3d 377 (M.D. N.C. 2020). Relevant facts will be discussed as pertinent to each pending motion. In short, in the early hours of November 27, 1991 Doris Washington and her 13-year-old daughter, Nishonda, were found dead in their Durham, North Carolina apartment after the local fire department responded to reports of a fire. Doris died of blunt force injuries; Nishonda was strangulated. Medical evidence suggested both had some form of prior sexual activity. Defendant Dowdy conducted the investigation by the Durham Police Department (“DPD”), and eventually Howard was charged with the murders and arson. In 1994, DNA evidence ruled Howard out as a contributor to any sexual activity involving the victims, and he was released from custody pending trial. Howard was tried for the crimes in March 1995, and following testimony by multiple witnesses including Howard himself, he was convicted and sentenced to 80 years of imprisonment. But in 2009, Howard took advantage of a new state law and sought and obtained retesting of the semen/sperm taken from the victims, which linked the DNA contributed to Doris Washington to a Jermeck Jones and eventually led to a December 2016 state court ruling granting Howard a new trial. The State thereafter dismissed all charges, and this lawsuit followed. On April 30, 2021, the governor issued Howard a “Pardon of Innocence.”
The case is set for trial in November 2021, and the parties initially filed 29 motions in limine, including multiple cross motions and totaling over 3, 800 pages of materials. The court directed the parties to meet and confer to resolve or narrow their evidentiary disputes because they had not previously attempted to do so. (Doc. 242.) The parties responded, noting resolution of some motions. (Doc. 246.) A hearing was held on July 23, 2021, on the remaining motions, and the court ruled orally on several motions and took others under advisement. The court further directed the parties to file supplemental material, which has now been filed.[2] (Docs. 250-257.) This order memorializes the court's decisions at the July 23 hearing and provides further rulings on the remaining motions.
The parties have filed multiple motions that relate to evidence of Howard's innocence. Specifically, Defendants move to exclude any reference to Howard's “factual innocence, ” including those contained in the December 2016 Order of North Carolina Superior Court Judge Orlando Hudson granting Howard a new trial after a hearing on the DNA (Doc. 161), and the April 2021 Pardon of Innocence issued to Howard by North Carolina Governor Roy Cooper (Doc. 210). Howard seeks to admit a summary of Judge Hudson's Order and the full Pardon of Innocence. (Doc. 186.)
While DNA test results at the time of Howard's 1995 trial excluded him as having contributed any bodily fluids suggesting any sexual activity with Nishonda Washington, [3] it was not until 2014 when DNA identified a particular individual, Jermeck Jones, as having contact with Doris Washington. This prompted Howard's motion for a new trial pursuant to N.C. Gen. Stat. § 15A-270 and, following a hearing in state court, resulted in the December 2016 Order granting Howard a new trial. The Order is 25 pages long and single-spaced. Among its many factual findings is a statement that Howard is “factually innocent” of the murders of Doris and Nishonda Washington. (Doc. 87-3 at 25.) Howard has advised the court that he does not seek to admit the entire text of the December 2016 Order or its finding that Howard is “factually innocent, ” and that the parties intend to offer a proposed summary of the Order that can be provided to the jury. (Doc. 246 at 6.) To this extent, Defendants' motion to exclude any reference to a purported finding of factual innocence by Judge Hudson appears to be moot. But because Judge Hudson's statement of “factual innocence” is dicta and purports to resolve what is otherwise a contested issue in this case, Howard himself or through his witnesses shall not mention this finding in Judge Hudson's December 2016 Order absent a further ruling of this court.[4]
The determination of the admissibility of Governor Cooper's Pardon of Innocence requires that this federal court wade into issues of North Carolina constitutional law with little guidance from North Carolina state courts. Howard proffers two arguments for admitting the pardon. First, he argues that it is relevant evidence needed to “complete the procedural story” of his criminal case and counter the fact of his initial conviction. (Doc. 189 at 3.) Second, he contends that the pardon is evidence of innocence that can prove “circumstantially that details in a falsified statement came from police” and thus is relevant to whether Dowdy fabricated evidence as well as to the issue of damages.[5] (Doc. 189 at 3-4.) Defendants counter that the pardon runs afoul of the North Carolina Constitution, is hearsay, and should be excluded pursuant to Rule 403 of the Federal Rules of Evidence as its probative value is substantially outweighed by the danger of unfair prejudice and misleading the jury. (Doc. 211.)
Turning first to Defendants' assertion that the pardon “does not comply with the North Carolina Constitution” (Doc. 211 at 3), such an argument is unpersuasive. The North Carolina Constitution provides in relevant part: “The Governor may grant reprieves, commutations, and pardons, after conviction.” N.C. Const. art. III, § 5(6). Defendants rely on the “after conviction” requirement to contend that, because Howard's conviction was vacated by Judge Hudson in 2016, there was no such “conviction” for which Howard could be pardoned in 2021. Thus, Defendants argue, Howard's pardon in 2021 was not “after conviction” as required by the constitution. (Doc. 211 at 3-8.) Howard argues that Defendants' claim is contrary to existing state judicial interpretation and practice.
As a federal court construing North Carolina law, this court applies the jurisprudence of North Carolina's highest court, the Supreme Court of North Carolina. See Private Mortg. Inv. Servs., Inc. v. Hotel & Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002); State ex rel. Martin v. Preston, 325 N.C. 438, 449 (1989) (). When that court has not spoken directly on an issue, this court must “predict how that court would rule if presented with the issue.” Id. The decisions of the North Carolina Court of Appeals are the “next best indicia” of what North Carolina's law is, though its decisions “may be disregarded if the federal court is convinced by other persuasive data that the highest court of the state would decide otherwise.” Id. (quoting Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th Cir. 1992)). In predicting how the highest court of a state would address an issue, this court “should not create or expand a [s]tate's public policy.” Time Warner Ent.-Advance/Newhouse P'ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration and quotation omitted).
There is little case law interpreting the governor's pardon power. Both parties point to the nearly 150-year-old case of State v. Alexander, 76 N.C. 231 (1877), to support their claims. There, the defendant had been tried, found guilty by a jury, and sentenced by the state trial court to five years' imprisonment. Id. at 23132. The defendant then appealed to the North Carolina Supreme Court, which at the time resulted in his conviction and sentence being vacated during the pendency of the appeal by operation of law. Id. The question became, as is the case here, whether the governor could properly use the pardon power to pardon an individual whose conviction had been vacated - i.e., whether the “after conviction” clause in the state constitution prohibited pardons where convictions were vacated.
The Alexander court found the governor's use of his pardon power to be “after conviction, ” even though the defendant's conviction had been vacated because the defendant had been tried and convicted by a jury prior to the issuance of the pardon. Id. at 233. The court observed that “nothing can be a conviction but the verdict of the jury.” Id. It then reasoned that the “after conviction” clause was included in the state constitution to prevent the governor from issuing preemptory pardons before a defendant was publicly tried. The practice at the time the state constitution was written, the court noted, was to “exerc...
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