State v. Howard

• Citation: 247 N.C.App. 193,783 S.E.2d 786
• Decision Date: 19 April 2016
• Docket Number: No. COA14–1021.,COA14–1021.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Darryl Anthony HOWARD.

247 N.C.App. 193

783 S.E.2d 786

STATE of North Carolina

v.Darryl Anthony HOWARD.

No. COA14–1021.

Court of Appeals of North Carolina.

April 19, 2016.

Attorney General, Roy Cooper, by Assistant Attorney General, Mary Carla Babb, for the State.

Womble Carlyle Sandridge & Rice, LLP, Charlotte, by James P. Cooney III, and Innocence Project, by Barry Scheck and Seema Saifee (both admitted pro hac vice), for defendant.

CALABRIA, Judge.

The State appeals from the trial court's order granting defendant's motion for appropriate relief ("MAR") on the basis of newly discovered evidence pursuant to N.C. Gen.Stat. § 15A–1415(b)(3), "favorable" post-conviction DNA results pursuant to N.C. Gen.Stat. § 15A–270(c), and violations of the U.S. Constitution. For the reasons that follow, we vacate the trial court's order and remand for an evidentiary hearing.

I. Background

The factual genesis of this case was the 27 November 1991 murders of Doris Washington ("Doris") and her thirteen-year-old daughter, Nishonda Washington ("Nishonda"). Approximately one year after the murders, Darryl Anthony Howard ("defendant") was arrested and indicted on two counts of first degree murder and one count of first degree arson. At defendant's trial in March 1995, both first degree murder charges were reduced to second degree murder. The jury found defendant guilty of both murders and the associated arson. Defendant received an eighty-year sentence, which he appealed. This Court concluded that his trial was free from error. See State v. Howard, 122 N.C.App. 754, 476 S.E.2d 147 (1996), No. COA95–1156, WL 34899110, at *1, disc. review denied, 347 N.C. 272, 493 S.E.2d 755 (1997). The evidence presented by the State at defendant's 1995 trial established the following facts.

Shortly after 1:00 a.m. on 27 November 1991, the Durham Fire Department responded to a call regarding an apartment fire in Few Gardens, a Durham public housing community. Shortly after Durham Firefighter Robert Wesley McLaughlin, Jr. ascended to the smoke-filled apartment's second floor, he discovered the nude bodies of Doris and Nishonda lying face down on a bed in the front bedroom. The fire had been intentionally set in a closet located in the rear upstairs bedroom.

Eric Campin ("Campin"), a crime scene technician with the Durham Police Department ("DPD"), arrived at the crime scene around 7:00 a.m. During his investigation, Campin observed a console TV sitting on the apartment's lower level floor. The TV had been pulled away from the wall, and cable or VCR wires lay on the floor beside it. After Campin observed a dust pattern on top of the TV, which in his experience was an indication of theft, he surmised that a VCR or similar appliance was missing.

Doris and Nishonda's autopsies were performed at approximately 10:30 a.m. on 27 November 1991. Dr. Robert L. Thompson, a forensic pathologist, testified regarding the results, which revealed that Nishonda died from ligature strangulation. While certain evidence suggested that Doris was also strangled, it was determined that she had died from a "blunt force injury to [her] abdomen which caused extensive internal bleeding." Both Nishonda and Doris died before the apartment caught fire.

Sexual assault kits ("rape kits") were collected from Doris and Nishonda, a routine occurrence when a victim "has obviously [been sexually assaulted] or [there is] a possibility of having been sexually assaulted." Dr. Thompson discovered "a moderate number of well [-] preserved" sperm heads in Nishonda's anal cavity, and subsequent testing of Nishonda's rape kit also detected sperm on her vaginal smears. DNA analysis excluded defendant as a source of the sperm found in Nishonda's vagina and anus. Doris' vagina was torn (one-half inch laceration) and contained a small amount of blood-tinged fluid, but no sperm was detected in any of her body cavities or in her rape kit. Dr. Thompson determined that Doris' vagina was torn around the time of her death and that "something had to be placed inside [it] ... some pressure put on it to cause that tear." He also determined that Doris had ingested cocaine "fairly recent[ly]" prior to her death.

Roneka Jackson ("Jackson"), a Few Gardens resident who knew Doris, Nishonda, and defendant, testified that Doris used and sometimes sold cocaine. According to Jackson, during the afternoon of 26 November 1991, defendant went to Doris' apartment in search of his girlfriend, but Doris would not let him inside. An argument ensued, and before defendant left, he said to Doris, "I am going to kill you and your daughter." Around 10:00 p.m. that evening, Jackson saw defendant and his brother, Bruce, walking out of Doris' back door carrying a television. After setting the television in his car, defendant placed a three or four minute phone call from a public telephone and then drove away with his brother. Jackson then noticed smoke coming from a back window of Doris' apartment; fire trucks arrived approximately fifteen minutes later.

Rhonda Davis ("Davis") was at Doris' apartment getting high on cocaine from approximately 10:30 a.m. to 10:30 p.m. on 26 November 1991. To the best of Davis' knowledge, Doris did not sell cocaine but she did allow a group of dealers from Miami and another from New York¹ to sell drugs from her apartment. After Nishonda went to bed around 10:30 p.m., Davis and Doris left the apartment for a short while and split up. Hoping to buy some cocaine, Davis returned to Doris' apartment around midnight and knocked on the back door. After approximately five minutes, defendant appeared at the window and told Davis that he and Doris were "busy." Davis then "heard some dishes rattling in the sink or something." After walking around to the front door, Davis "heard somebody going up the steps." Davis then left.

Few Gardens resident Terry Suggs ("Suggs") saw smoke coming from Doris' apartment sometime after midnight on 27 November 1991.

A few minutes before seeing the smoke, Suggs saw defendant and a female walking through the gap between Doris' apartment building and the adjacent building.

Around midnight on 27 November 1991, Kevin Best ("Best") and Dwight Moss ("Moss") were standing across from Doris' apartment. According to Best, defendant and another male—who Moss claimed was defendant's brother, Kenny—exited the back door of Doris' apartment carrying a television and a VCR. "[N]o more than [ten] minutes" later, Best saw smoke coming from Doris' apartment window.

Moss had heard that Doris sold drugs for a person he referred to as "the New York Boy." According to Moss, defendant "hung around" with the New York Boys and was "kind of with them." During his testimony, Moss stated that he saw defendant and Doris arguing about money and drugs during the afternoon of 26 November 1991. Defendant told Doris that she had "messed up the money" and "messed up the drugs," yelled "I'll kill you," and then walked away. Around 11:10 p.m., Moss saw defendant and another male² "coming around from the backside of" Doris' apartment. The men were carrying what looked like a television and a VCR.

Angela Oliver ("Oliver"), who knew defendant but did not know Doris, testified for the State and was designated a hostile witness by the trial court. Oliver testified that she was interviewed by Detective Darryl Dowdy of the DPD ("Detective Dowdy"). On 10 October 1992, nearly a year after the murders, Detective Dowdy—the lead investigator on the case—received a tip that Oliver wanted to talk and he interviewed her the same day. During her trial testimony, Oliver stated that she told the truth to Detective Dowdy in the interview, that the interview was tape recorded, and that a transcript of the tape was prepared. The interview transcript was admitted into evidence and Oliver's tape-recorded statement was played in court.

During the interview, Oliver stated that she and defendant went to Doris' apartment between 5:00 and 6:00 p.m. "to get [defendant's] money or drugs," but Doris did not have either one. Defendant told Doris that if she did not have his money or his drugs when he returned, he would "kill her mother––––ing ass." Sometime later, between 10:00 p.m. and 1:00 a.m., defendant, his brother, Harvey, and Oliver returned to Doris' apartment. Doris still did not have the money or drugs, so defendant "started jumping on her" and pushing her against the wall. Defendant then asked Oliver to go outside because he did not want her to "be around what he [was] fixing to do." Before Oliver exited the apartment, she saw defendant taking Doris upstairs. According to Oliver, "the next thing I kn[e]w, there was a lot of noise. [Doris] was hollering and screaming[,]" saying something about Nishonda being in the apartment. Eventually, the upstairs lights went on and "it got quiet." At that time, defendant's brother entered the apartment. After defendant set a fire in the apartment, he told his brother that "he had to burn them up. He didn't want to leave no evidence." Before they left, defendant's brother removed something from the apartment wrapped in a sheet and sold it on the street.

When defendant and his brother, Harvey, were taken into custody in November 1992³ , Durham Fire Marshall Milton Smith ("Smith")—who had investigated the fire and murder scene at Doris' apartment—arrived at the Durham Magistrate's Office to complete the booking process. While Smith was collecting information from Harvey, defendant told Smith that his brother, Kenny, not Harvey, was with him at Few Gardens when the fire occurred. Smith then asked defendant, "So, it was your brother Kenneth when you did this thing," to which defendant responded, "Yes, it was me and Kenny." Defendant then leaned over to Smith and added, "You are a smart mother––––er, ain't you?"

Gwyndelyn Taylor ("Taylor"), who testified that she knew both defendant and Doris, saw defendant at a Durham nightclub sometime between 27 November and 31 December 1991. While there, Taylor overheard someone ask defendant if he...