State v. Allen
| Decision Date | 04 September 2012 |
| Docket Number | No. COA11–744.,COA11–744. |
| Parties | STATE of North Carolina v. Derrick ALLEN. |
| Court | North Carolina Court of Appeals |
Appeal by the State from order entered 10 December 2010 by Judge Orlando F. Hudson, Jr., in Durham County Superior Court. Heard in the Court of Appeals 22 February 2012.
Attorney General Roy Cooper, by Senior Deputy Attorney General William P. Hart, Sr., Assistant Attorney General Daniel P. O'Brien, and Assistant Attorney General Derrick C. Mertz, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel K. Shatz, for Defendant–Appellee.
The State appeals from an order granting Defendant Derrick Allen's motion to dismiss with prejudice the first degree murder, felony child abuse and first degree statutory sex offense charges that had been lodged against him. On appeal, the State contends that the trial court erred by: (1) making certain findings of fact which lacked adequate evidentiary support; (2) concluding that Defendant's constitutional rights had been violated and that dismissal was the appropriate remedy for these violations pursuant to N.C. Gen.Stat. § 15A–954(a)(4); and (3) concluding that the State had violated applicable discovery requirements and that dismissal was the appropriate remedy for these violations pursuant to N.C. Gen.Stat. § 15A–910. After careful consideration of the State's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be reversed.
I. Factual Background
In February 1998, Defendant lived with his girlfriend, Diane Jones, and Ms. Jones' two-year old daughter, Ava. On the morning of 9 February 1998, Ms. Jones left for work, leaving Defendant and Kia Ward to care for Ava. About 30 minutes after Ms. Ward's departure, Defendant telephoned 911 and indicated that Ava was unresponsive. A short time later, emergency medical personnel arrived and attended to Ava, who had no pulse and had what appeared to be a small amount of blood on the inside left leg of her sleepsuit. According to Defendant, Ava had complained of leg pain and became unresponsive following her removal from the bathtub.
Ava was taken to a nearby emergency room, where attempts to revive her proved unsuccessful. An examination of Ava's body by the attending physician revealed a “fresh noticeable tear in [Ava's vagina with] ... some blood [being] found inside the vagina and on the clothes [Ava] wore to the hospital.” An emergency room nurse reported that, after Ava had been pronounced dead, Defendant had been looking at Ava's vaginal area.
A subsequent autopsy revealed abrasions or lacerations to Ava's vaginal orifice, including a “focal hemorrhage[,]” coupled with subdural and subarachnoid hemorrhaging of the brain, moderate cerebral edema, epidural and subarachnoid hemorrhaging of the spinal column, and bilateral retinal hemorrhaging. The medical examiner concluded that Ava's death resulted from shaken baby syndrome.
On that same date, Defendant was arrested and charged with first degree sexual offense. On 16 February and 2 March 1998, the Durham County grand jury returned bills of indictment charging Defendant with first degree sex offense, felony child abuse, and first degree murder.
Investigator Grant Gilliam of the Durham Police Department submitted a number of items to the SBI for examination. Special Agent Jennifer Elwell of the SBI analyzed these items for the presence of blood and stated that testing performed on stains found on a single pair of Ava's “training pants,” or underwear, and two of Ava's “sleeper[s,]” was positive, or “[i]n other words, [that the] sample exhibited chemical properties consistent with what [she] would see in a bloodstain.” 2 In addition, Special Agent Elwell conducted a Takayama test, which she described as a “confirmatory blood test,” on the sleepers and underwear which yielded “negative” results. As a result, Special Agent Elwell placed a “-” adjacent to the word “Takayama” in her lab notes with respect to each tested item.
According to Special Agent Elwell, when one performed a Takayama test, “[y]ou were looking specifically for a crystal kind of formation that would occur” and, “[i]f the crystals didn't appear, then you would say that the test was negative” or, in some instances, inconclusive. A negative Takayama test result “only means that [the analyst] was not able to see a crystal formation ... with this test.” Although Special Agent Elwell's laboratory notes contained the “-” notation, her report made no reference to the Takayama results and merely stated that the sleepers and the underwear “gave chemical indications for the presence of blood.” When asked to justify the wording of her report, Special Agent Elwell testified that, “[w]hen [the] Takayama worked, it was very good[;]” that, “if the Takayama test did not work, that did not mean that blood wasn't present on [the] sample[;]” and that, in instances involving negative Takayama results, the SBI's practice was to simply report the last valid test result without further comment. Special Agent Elwell did not perform DNA analysis on the sleepers and underwear on the grounds that DNA evidence was useful in cases involving “some sort of a transfer between a victim and a suspect;” that there was no reason to believe that such a transfer had occurred in this instance; and that “we cannot put a ... time stamp on a bloodstain.”
On 10 February 1998, Ms. Ward gave investigating officers a written statement. According to her statement, Ms. Ward awoke at around 10:00 a.m. and cared for Ava until Defendant woke up about an hour later. Ms. Ward said that Defendant became frustrated with Ava for wetting her clothes, took her into the bathroom, bathed her, and spanked her. After Defendant dressed Ava, the two of them returned to the bathroom, at which point Ms. Ward “could hear [Defendant] fussing about [Ava using] the bathroom on herself.” As Defendant left the bathroom with Ava on his shoulder, Ms. Ward noticed that Ava was “shaking—almost like she was having a seizure....” When Ms. Ward asked what was wrong, Defendant responded that “[Ava] was on [his] back ... [while he] was giving her a piggy-back ride, and she fell.”
After subsequently hearing a noise, Ms. Ward went into Ava's room, where she observed Defendant sitting in the floor, changing Ava's underwear, and “mumbl[ing] something—like they [are] dirty or ... tight.” When Defendant asked Ms. Ward if she had noticed that Ava had been limping, Ms. Ward responded in the affirmative. At that point, Defendant picked Ava up, took her into Ms. Jones' room, and placed her on the bed. Ms. Ward left the home at around 2:00 p.m.
On 28 February 1998, Investigator Gilliam requested that Special Agent Mike Wilson of the SBI conduct a polygraph examination of Ms. Ward in which he asked her the following questions: At the ensuing polygraph examination, Special Agent Wilson had the following exchange with Ms. Ward: “Based upon the results of this examination, [Special Agent Wilson concluded] that [Ms. Ward] was not deceptive regarding these questions.”
On the same day, Investigator Gilliam questioned Ms. Ward, who stated that she had smelled marijuana “coming from the back room that morning before [Defendant] came out to where [Ava] and [Ms. Ward] were.” Although Ms. Ward admitted that she smoked marijuana, she declined Defendant's invitation to “hit this” because she “wanted to be clear when [her] grandmother ... got there” and denied having consumed any marijuana on either the day before or the day of Ava's death. In addition, although Ms. Ward acknowledged having had sexual intercourse with Defendant two summers earlier, she had not had any such contact with Defendant since that time and had “kind of been like enemies” with Defendant in more recent times.
On 2 April 1998, the State filed a notice that it intended to prosecute Defendant capitally. On 6 July 1998, a Rule 24 conference was conducted before Judge Henry Hight, who determined that the State was entitled to seek the death penalty against Defendant.
Defendant's trial counsel filed numerous pre-trial motions, including a motion to preserve evidence, a motion for discovery, a motion for the production of prior written statements by State's witnesses, a motion for the production of statements by witnesses that the State did not intend to call at trial, a motion for the production of exculpatory evidence, a motion that written reports be provided by the State's experts, and a motion to produce data, tests, procedures, and diagrams. On 4 March 1999, a hearing concerning pending pretrial motions was held before Judge David Q. LaBarre. At the conclusion of that hearing, Assistant District Attorney Freda Black made notes to the effect that Judge LaBarre had “allowed” the motion for the production of exculpatory evidence and that the State had an “ongoing obligation” to disclose such evidence. In addition, Ms. Black noted that the State did not have (1) “any statement of any witness or from any source, exculpating the [D]efendant or otherwise indicating a lessened role of the [D]efendant in [the] case[;]” (2) “any evidence of any mental or emotional illness or drug or alcohol use by any of the prosecution witnesses at the time of [the] offense or any time thereafter[;]” and (3) the “names and addresses of any individuals who were considered at any time during the case as possible...
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