Howard v. City of Durham

Citation487 F.Supp.3d 377
Decision Date16 September 2020
Docket Number1:17cv477
CourtU.S. District Court — Middle District of North Carolina
Parties Darryl HOWARD, Plaintiff, v. CITY OF DURHAM, Darrell Dowdy, in his individual capacity; Michele Soucie, in her official and individual capacities; Scott Pennica, in his official and individual capacities; Milton Smith, in his individual capacity, Defendants.

Burton Craige, Bradley J. Bannon, Patterson Harkavy LLP, Raleigh, NC, Amelia B. Green, Anna B. Hoffmann, Barry Scheck, Emma K. Freudenberger, Mary K. McCarthy, Meghna S. Philip, Nick J. Brustin, Neufeld Scheck & Brustin, LLP, New York, NY, Narendra K. Ghosh, Patterson Harkavy, LLP, Chapel Hill, NC, for Plaintiff.

Kimberly Martin Rehberg, John Pritchard Roseboro, City of Durham City Attorney's Office, Durham, NC, Reginald B. Gillespie, Jr., Michael A. Ostrander, Wilson & Ratledge, PLLC, Raleigh, NC, for Defendant City of Durham.

Eric P. Stevens, Poyner Spruill, LLP, Raleigh, NC, Henry W. Sappenfield, Joel Miller Craig, Michele L. Livingstone, Kennon Craver Belo Craig & McKee, PLLC, Durham, NC, J. Nicholas Ellis, Poyner Spruill LLP, Rocky Mount, NC, for Defendants Darrell Dowdy, Michele Soucie, Scott Pennica, Milton Smith.

Henry W. Sappenfield, Joel Miller Craig, Michele L. Livingstone, Kennon Craver Belo Craig & McKee, PLLC, Durham, NC, for Defendant E.E. Sarvis.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This lawsuit arises out of the conviction and incarceration of Plaintiff Darryl Howard for the 1991 murders of Doris and Nishonda Washington and the subsequent burning of their apartment. In 2016, Howard was granted a new trial based on the discovery of exculpatory DNA evidence and released from prison. The State of North Carolina subsequently dismissed all criminal charges against him.

Howard alleges that Defendants City of Durham, Darrell Dowdy -- an investigator with the Durham Police Department ("DPD") -- and Milton Smith -- a member of the Durham Fire Department -- fabricated and suppressed evidence to obtain his conviction. He also alleges that, following his conviction, two other members of the DPD -- Michele Soucie and Scott Pennica -- purposefully withheld exculpatory evidence in violation of a state court order, resulting in his unnecessary continued incarceration. Before the court are motions for summary judgment by Defendants Dowdy (Doc. 79), Smith (Doc. 75), Pennica and Soucie (Doc. 77), and City of Durham (Doc. 81). Howard filed a consolidated response (Doc. 87), and Defendants filed reply briefs (Docs. 100, 101, 104, 105). City of Durham also moves for judgment on the pleadings as to Howard's state constitutional claims against it. (Doc. 73.) Howard filed a response (Doc. 90), and the City filed a reply (Doc. 103). Following oral argument on the motions conducted via video-conference, the parties filed supplemental briefing. (Docs. 115, 118.) For the reasons set forth below, Defendants’ motions will be granted in part and denied in part.

I. BACKGROUND
A. Facts

The facts presented, taken in the light most favorable to Howard as the non-moving party, show the following1 :

1. The Murders and Investigation

Doris Washington and her 13-year-old daughter, Nishonda, were murdered in the early morning of November 27, 1991, in their apartment in the Few Gardens public housing development in Durham, North Carolina. (Doc. 88-5; Doc. 87-8 at 5.)2 The Durham Fire Department was initially called to the scene because Doris's apartment had been set on fire. The firemen found Doris's and Nishonda's bodies while responding to the fire. (Doc. 87-8 at 5.) Both were naked, lying face down on a bed, and showed signs of strangulation. (Id. at 5, 7.)

Defendant Dowdy, a detective in the DPD, was assigned as the lead investigator in the murders and, as a result, conducted most of the interviews with witnesses, which he recorded in his investigative report. (Doc. 72-1 at 351:16-352:2; Doc. 87-8.)

The morning after the murders, Plaintiff Howard was arrested in Few Gardens for trespassing and driving without a license. (Doc. 87-8 at 7.) According to the DPD report, in the course of his arrest he had a conversation with the officer about the deaths of Doris and Nishonda, as Howard knew Doris personally. (Id. at 7-8.) Howard was brought in to DPD and questioned specifically about the murders. (Id.; Doc. 87-13 at 526:7-25.) The DPD reports indicate that during the booking process, Howard, unprompted by officers, said he could not understand why Doris had killed her daughter and then herself. (Doc. 87-8 at 8.) Howard denied any involvement and was allowed to leave that day. (Doc. 88-3 at 257:21-25, 265:5-8.) Dowdy spent the rest of that afternoon in the Few Gardens development interviewing residents. (Doc. 87-8 at 9.)

That same morning after the murders, autopsies of Doris and Nishonda Washington were completed. (Doc. 87-17; Doc. 87-18.) The pathologist concluded that Doris had died of blunt force injury to the abdomen (Doc. 87-17 at 2) and Nishonda had died of ligature strangulation (Doc. 87-18 at 2). Doris also had a ligature mark around her neck and showed signs of strangulation. (Doc. 87-17 at 10.) Sperm was found in Nishonda's anus. (Doc. 87-18 at 6.) Doris had a laceration in her vagina (Doc. 87-17 at 3), but the autopsy showed no presence of sperm (id. at 9). Both Doris and Nishonda had been killed before the fire started. (Doc. 87-17 at 10; Doc. 87-18 at 6.)

Three days later, at 1:40 a.m. on November 30, 1991, Dowdy interviewed Roneka Jackson. Jackson had been arrested earlier in the night on unrelated charges and had volunteered information about the Washington murders. (Doc. 87-8 at 11.) In a taped interview, Jackson, who was 17 years old at the time, told Dowdy that at about 10:00 p.m. on the night of the murders she overheard Howard get into an argument with Doris Washington over the fact that Doris was allowing Howard's girlfriend to prostitute herself at Doris's apartment. (Id. at 12-13, 18.) According to Jackson, Howard claimed that his girlfriend was in Doris's apartment and after Doris refused to allow Howard in, Howard said he would come back and kill Doris and her daughter, Nishonda.3 (Id. at 12, 13, 18.) Jackson said she knew the girlfriend but not her name and never saw her leave Doris's apartment that night. (Id. at 12, 18.) Later that night, Jackson said, she saw Howard and his brother Bruce "come out the house" where Doris Washington lived carrying a television and VCR. (Id. at 13-14.) About ten or fifteen minutes later, Jackson saw smoke coming from the apartment. (Id. at 19-20.)

On December 1, another DPD officer received a tip from an informant suggesting that Doris and Nishonda had been murdered because Doris owed $8,000 to drug dealers from New York or Philadelphia. (Doc. 88-39 at 2.) The tip stated that Doris was using her apartment to stash drugs for these dealers who later found some of the drugs missing when they came to pick them up, hence Doris's $8,000 debt. (Id. at 2-3.) The tipster said that when the drug dealers came to collect their money, "they first raped [Doris] before strangling her." (Id. at 3.) Nishonda, the tipster surmised, may have "unknowingly walked in" on the scene and was killed as a result. (Id. ) One of Dowdy's superiors, E.E. Sarvis, informed Dowdy on the margins of the tip sheet that there might be "something to this" because he did not believe the sexual assaults were public knowledge at the time. (Id. at 2.) Dowdy, however, did not recall following up on the information contained in this tip, even though it had been flagged by a superior. (Doc. 87-2 at 216:1-217:25.) He instead believed that the tip did not contain relevant information because he did not know the informant who provided the tip and could not "tangibly tie [that] person to the case." (Id. at 220:15-25.)

On December 3, 1991, Dowdy interviewed Kelvin Best.4 Dowdy reported that Best told him that, on the night of the murders, he had seen Howard and his brother Kenny come around the back of Doris's apartment building carrying a television and VCR. (Doc. 87-8 at 24.) Two days later, Dowdy interviewed Dwight Moody Moss,5 who was with Best that night. (Id. ) Dowdy's report states that Moss provided a signed statement that around 4:00 p.m. on the afternoon of the murders, he observed Howard and Doris arguing. (Id. at 25.) Dowdy reported that Moss heard Howard yell at Doris, "I am going to kill you bitch." (Id. ) That night, just prior to midnight, Moss reported seeing Howard, his brother Kenny, and an unidentified woman go to Doris's apartment; the woman knocked on Doris's front door and went in while Howard and his brother went around the back. (Id. at 25-26.) Moss saw the woman leave Doris's apartment 30 to 40 minutes later and then saw Howard and Kenny "come around from the back of Doris’ building." (Id. at 26.) Howard appeared to be carrying a television and Kenny a VCR. (Id. ) Shortly thereafter, Moss saw smoke coming from the back of Doris's apartment. (Id. )

In early January 1992, Dowdy spoke to Gwendolyn Roper Taylor. According to Dowdy's report, Taylor said that Howard had told her in a club that he had "killed the bitch and her daughter to [sic]," in reference to Doris and Nishonda. (Id. at 27.) Taylor also told Dowdy that she did not want to testify in court about it. (Id. at 27-28.)

In February 1992, three months after the murders, Dowdy requested, and the DPD Chief of Police, Trevor Hampton, approved and wrote, a request to the Governor of North Carolina to offer a $10,000 reward for information regarding the murders. (Id. at 28; Doc. 88-28.) In requesting the reward, the DPD told the Governor there were no leads in the murders, even though Dowdy suspected Howard as the culprit. (Doc. 88-28; Doc. 87-2 at 106:14-21.)6 The Governor granted the request, and the reward was posted in the Few Gardens complex on March 19, 1992. (Doc. 87-8 at 28; Doc. 88-27.)

On June 2, 1992, Dowdy interviewed Eric Lamont Shaw. Dowdy reported that Shaw...

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