HOWARD v. CITY OF DURHAM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DARRYL ANTHONY HOWARD, )

)

Plaintiff, )

)

v. ) 1:17cv477

)

DARRELL DOWDY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This is a wrongful conviction case that, after a nearly four-

week jury trial in November 2021, resulted in a $6 million verdict

for the Plaintiff, Darryl Howard. Before the court is Dowdy’s

renewed motion for judgment as a matter of law pursuant to Federal

Rule of Civil Procedure 50(b) (Doc. 339), which is fully briefed.

For the reasons set forth below, Dowdy’s motion will be denied.

I. BACKGROUND

On 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 from a blunt force strike to the abdomen;

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, a jury convicted Howard and sentenced him to 80 years of

imprisonment. But in 2009, Howard took advantage of a new state

law and sought and obtained retesting of the semen and sperm taken

from the victims, which linked the DNA contributed to Doris

Washington to an individual named Jermeck Jones; based on this,

Howard obtained a December 2016 state court ruling granting him a

new trial. The State thereafter dismissed all charges, and this

lawsuit followed. On April 30, 2021, North Carolina Governor Roy

Cooper issued Howard a Pardon of Innocence.

Trial commenced on November 8, 2021, and concluded on December

1, 2021, when the jury returned a verdict in favor of Howard and

awarded him $6,000,000.00 in compensatory damages. (Doc. 327.)

Howard presented 13 witnesses, either in person or by deposition.

Three bases for liability were submitted to the jury, all pursuant

to 28 U.S.C. § 1983: whether Dowdy fabricated two pieces of

evidence in the criminal trial -- a taped statement from a witness

named Angela Oliver1 and evidence regarding Dowdy’s investigation

1 Angela Oliver went by various names during the Washington homicide

investigation and Howard’s 1995 criminal trial, including: Angela

Southerland, Theresa Simpson, and Angela Rogers. (Doc. 72-1 at 283:4-

11, 305:23-306:13.)

into whether Nishonda Washington was sexually assaulted; whether

Dowdy suppressed evidence by failing to disclose that a state

witness in the criminal trial, Roneka Jackson, was a confidential

informant for the DPD and was associated with the New York Boys

gang; and whether Dowdy engaged in a bad faith failure to

investigate the source of the semen found in Nishonda Washington

in order to cover up his fabrication of evidence with respect to

Angela Oliver.

At the close of evidence, Dowdy moved for judgment as a matter

of law on all three issues, arguing principally that Howard had

failed to carry his burden in proving his suppression or inadequate

investigation claims and had failed to show that the alleged

fabrication of Angela Oliver’s statement could have been a but-

for or proximate cause of Howard’s conviction. (Doc. 324; Doc.

334 at 248:10-249:1.) The court reserved ruling. (Doc. 334 at

271:13-24.)

The jury was charged on November 30, 2021, and deliberated

until the following day. In returning its verdict, the jury found

that Dowdy had denied Howard’s constitutional right to due process

by fabricating evidence and by engaging in a bad faith failure to

investigate. (Doc. 327.) However, the jury found that Dowdy had

not suppressed evidence of the state witness’s status as a

confidential informant with connections to a local gang. (Id.)

On the same day, the court ruled on Dowdy’s motion for judgment as

a matter of law. (Doc. 329.) The court denied Dowdy’s motion as

to suppression, finding it moot in light of the jury’s verdict.

The court further denied Dowdy’s motion as to Howard’s fabrication

and bad faith failure to investigate claims after determining there

was sufficient evidence from which a jury could have reached the

verdict it returned. (Doc 336 at 11:8-14.) The court entered

judgment on December 7, 2021 (Doc. 330), which it amended on

December 9 (Doc. 331).2

II. ANALYSIS

Dowdy renews his motion for judgment as a matter of law based

on two arguments. First, he contends that Howard failed to proffer

sufficient evidence from which the jury could have concluded that

the fabrication of Angela Oliver’s testimony at Howard’s criminal

trial was a but-for and proximate cause of his conviction in 1995.

(Doc. 340 at 6.) Second, he asserts that there is insufficient

evidence to support Howard’s bad faith failure to investigate

claim. (Id. at 16.)

A. Standard of Review

“To challenge the sufficiency of the evidence in a civil jury

trial . . . a party must comply with Federal Rule of Civil Procedure

50,” which “sets out two different stages for such a challenge.”

2 The difference between the two is the amended judgment enumerates the

jury’s monetary award of $6,000,000.00 rather than entering judgment in

favor of Howard “in accordance with the verdict” as in the initial

judgment.

Belk, Inc. v. Meyer Corp., 679 F.3d 146, 154 (4th Cir. 2012). Rule

50(a) “allows a party to challenge the sufficiency of the evidence

before a case is submitted to the jury,” whereas Rule 50(b) “sets

forth the requirements for challenging the sufficiency of the

evidence after the jury verdict and entry of judgment.” Id. at

155. Judgment as a matter of law is appropriate where a plaintiff

has been fully heard on an issue but has failed to produce

sufficient evidence for a jury to find for him. Fed. R. Civ. P.

50(a)-(b); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 149 (2000). The standard for judgment as a matter of law

mirrors the standard for granting summary judgment “such that ‘the

inquiry under each is the same.’” Reeves, 530 U.S. at 150 (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986)); see

Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644

(4th Cir. 2002) (“[a] Rule 50(b) motion for judgment as a matter

of law follows the same standard as a Rule 56 motion for summary

judgment). A motion under Rule 50(b) “tests the legal sufficiency

of a claim, that is, assesses whether the claim should succeed or

fail because the evidence developed at trial was insufficient as

a matter of law to sustain the claim.” Belk, Inc., 679 F.3d at

155. Because the Defendant moved for judgment as a matter of law

at the end of Howard’s evidence and then renewed the motion at the

end of all evidence, the court considers the record at each

appropriate time, though Dowdy’s briefing only addresses the trial

record as a whole, and the court is to “review the record as a

whole” but “must disregard all evidence favorable to the moving

party that the jury is not required to believe.” Reeves, 530 U.S.

at 151. All reasonable inferences must be drawn in favor of the

nonmoving party, and the court is not permitted to make credibility

determinations or weigh the evidence. Id. at 150. The limited

review of the evidence is required by “the importance of the jury’s

role in trials . . . enshrined in the Seventh Amendment.” Burgess

v. Goldstein, 997 F.3d 541, 554 (4th Cir. 2021).

B. Fabrication of Angela Oliver’s Testimony

Howard presented two bases for his § 1983 claim that Dowdy

denied his due process rights by fabricating evidence. First,

Howard claimed that Dowdy fabricated statements from Angela Oliver

by interrupting the tape recording of his 1994 interview of her in

order to improperly feed her inculpatory information so that she

would give false answers that implicated Howard in the Washington

murders. Second, Howard claimed that Dowdy fabricated evidence

regarding his investigation into whether Nishonda Washington was

sexually assaulted by falsely advising the prosecutor that he had

evidence that she had been staying with her boyfriend up until the

evening before her murder, which would tend to rule out sexual

assault as part of the crimes and explain the exculpatory DNA

evidence found in Nishonda’s rape kit.

At the outset, Howard correctly points out that Dowdy’s Rule

50 motion does not challenge the sufficiency of the evidence

presented in support of the second basis for Howard’s fabrication

claim –- that Dowdy fabricated his investigation into whether 13-

year-old Nishonda Washington was sexually assaulted in connection

with her murder. (Doc. 344 at 3.) The evidence at trial on this

issue tended to show that Dowdy advised the prosecutor, Michael

Nifong, that he had conducted an investigation into Nishonda’s

whereabouts before the murder and confirmed that she had returned

home the day of the murder, thus tending to suggest prior

consensual sexual conduct with an older boyfriend and tending to

rule out sexual assault in connection with her murder. Evidence

related to this claim is more fully discussed later in this

memorandum opinion in connection with Dowdy’s challenge to the

verdict on Howard’s bad faith failure to investigate.3 Because

this unchallenged ground provides an independent basis to support

the verdict, on this basis alone the Rule 50 motion is denied.

See, e.g., Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber

Co., 682 F.3d 292, 313-14 (4th Cir. 2012) (affirming district

court’s denial of Defendant’s Rule 50(b) and Rule 59 motions even

though the jury’s verdict was reversed on some claims, because the

3 While the bad faith failure to investigate ground required Howard to

prove that Dowdy acted with bad faith, this alternative basis for the

fabrication of evidence ground did not require any proof of bad faith.

See, e.g., Massey v. Ojaniit, 759 F.3d 343, 354 (4th Cir. 2014) (a § 1983

claim based on fabrication requires proof of a deliberate fabrication

of false evidence that resulted in the deprivation of a plaintiff’s

liberty).

verdict was still independently supported by other claims).

As for the first ground, Dowdy’s contention is also

unpersuasive. The evidence at trial was as follows. On October

10, 1992, DPD officers, other than Dowdy, arrested Angela Oliver

for prostitution. (Doc. 294-3 at 14:12-24.) After her arrest,

those officers informed Dowdy that Oliver claimed to have been

with Howard the night of the Washington murders. (Doc. 87-2 at

320:24-321:5.) The officers also told Dowdy that Oliver had

information that only an individual who witnessed the murders would

know. (Id. at 321:9-12.) At that point, Dowdy interviewed Oliver

and audio-recorded their conversation. (Id.; Doc. 87-8 at 30.)

The recording itself (which was in DPD possession) went missing

after the criminal trial, and the only evidence of its contents

comes from a transcription contained in Dowdy’s file. The

transcript reflects that Oliver informed Dowdy that she had seen

Howard arguing with Doris Washington about drugs and money the day

of the murders and she had seen Howard attack Doris at the time of

the murders while Howard’s brother, Harvey, was present in the

apartment. (Doc. 88-32 at 2-3, 6-7, 10.)

However, there were discrepancies that called the validity of

the transcription, and thus the taped interview, into question.

Oliver’s taped interview is approximately 10 minutes long; yet,

Dowdy’s contemporaneous notes reflect that the interview took

place over 46 minutes. (Doc. 309 at 25:5-10.) At Howard’s

criminal trial, Dowdy testified that he could not fully explain

this timing difference. Dowdy justified the time difference by

stating that he may have stopped the interview to “go[] back over

what [Oliver] was saying” or “to clarify some information she may

have been telling [him].” (Doc. 87-2 at 337:13-14, 338:1-2.) He

also stated he must have written down the wrong time or been

interrupted by other officers when he stopped the recordings.

(Doc. 72-1 at 385:16-386:8, 401:15-402:11.) Dowdy reiterated

these justifications to the civil jury in the present action.

(Doc. 309 at 8:11-9:25; 34:12-19.)

Oliver testified at Howard’s criminal trial. She was

combative, recalcitrant (she had to be arrested to be brought to

court as a material witness to testify), and evasive. She

testified that Dowdy stopped the tape multiple times because he

said she “wasn’t talking right or something.” (Doc. 289-2 at

308:8-11.) She told the criminal jury that she did not know

anything about the Washington murders, even though her recorded

statement reflected details which would only be known by a witness

to the crime. (Id. at 308:25-309:2.) She also eventually adopted

the taped recording as accurately reflecting the interview and, at

different times in her testimony, prevaricated between testifying

that the recording (and thus her statement) was truthful, truthful

in part, and something she “d[id]n’t want to talk about.” (Doc.

72-1 at 300-305.) Importantly, Oliver was the only witness who

claimed to be present in Doris’s apartment during the murders and

to have observed Howard’s alleged attack of Doris, including

knowing about the injury to Doris’s chest which caused her death

and which was not publicly known at the time of her interview.

Dowdy’s repeated and inconsistent explanations for the time

discrepancies in Oliver’s taped statement called into question the

veracity of the transcript of Oliver’s taped statement. (Doc. 87-

8 at 36.)

After years of attempting to locate Oliver after the criminal

trial, Howard finally located and deposed her in this case shortly

before trial, and portions of her videotaped deposition were played

to the jury during Howard’s direct case. Oliver’s testimony was

combative, evasive, and fraught with inconsistencies.4 But these

issues of credibility were for the jury to assess, and her

testimony is viewed at this stage in the light most favorable to

Howard.

When asked directly by Plaintiff’s counsel whether she had

ever witnessed any part of the Washington murders, Oliver

responded, “I never witnessed any murder in my life.” (Doc. 294-

3 at 10:13-16.) In fact, Oliver denied being present at the scene

of the Washington murders that night. (Id. at 10:19-23.) As to

4 For example, Oliver claimed to be unable to read but is recorded on

the tape and testified at the criminal trial that she was able to read

well. (Doc. 294-3 at 8:25-9:23.) She also adopted the taped interview

as accurate during the criminal trial (Doc. 72-1 at 300:14-25), though

in this case she renounced it.

her taped statement to the contrary, Howard’s counsel asked “[i]f

you did not witness the homicide, how did you learn the details

that you –- that are contained in [the transcribed statement] from

your interview [with] Darrell Dowdy?” (Id. at 17:15-18.) Oliver

responded, “He [Dowdy] must have let me know. I was locked up for

the solicitating. Solicitating ain’t going to carry that much

time. Why would I know or worry about a murder?” (Id. at 17:19-

22.)

Oliver was also asked directly about Dowdy stopping the tape

multiple times during their interview. When asked, “what was

Detective Dowdy doing?” she responded, “Trying to convince me that

I seen something that I didn’t see.” (Id. at 39:10-12.) And when

asked, “Is that when Detective Dowdy was providing you information

about the . . . crime?” (id. at 39:18-21), Oliver replied,

“Exactly. Because trust me, I don’t know nothing about this, man.

I was trying to tell you then, I’m telling you now.” (Id. at

39:22-24.) Thus, there was sufficient evidence from which a jury

could find fabrication by a preponderance.

It is true that the level of detail Oliver provided in her

lengthy oral and written statement contrasted with her apparent

inability to coherently express herself in her videotaped

deposition. While the jury may have wondered whether and how

Oliver could have been successfully coached with so much detail

given her obvious limitations, and while the evidence of the three

“clicks” (Doc. 72-1 at 402:1-11) on the tape reflective of stopping

were demonstrated to have occurred at the beginning of the

statement and not throughout, these were issues for the jury. The

jury could also consider the fact that the physical tape recording

of Oliver’s original statement, which was left in DPD custody

during trial, is missing.

Dowdy argues that Howard “failed to present evidence allowing

a jury to find that the alleged fabrication of Oliver’s statement

was the but-for or proximate cause of Plaintiff’s conviction.”

(Doc. 340 at 6.) Dowdy argues that this is so because there were

“several other witnesses who provided inculpatory testimony” that

the criminal jury considered, and Howard did not establish that

his convictions were a reasonably foreseeable result of Oliver’s

fabricated statement. (Id. at 9, 13.) Howard responds that the

jury “had ample bases to support its finding that Defendant Dowdy’s

fabrication of evidence caused Plaintiff’s wrongful conviction.”

(Doc. 344 at 2.)

In evaluating whether Howard produced sufficient evidence as

to the causation element, the court must determine if the jury

reasonably found in favor of Howard after concluding that “the

facts [shown] by [Howard] demonstrate that the loss of liberty,”

that is, Howard’s conviction for the Washington murders, “resulted

from [Dowdy’s] fabrication of evidence.” Washington v. Wilmore,

407 F.3d 274, 283 (4th Cir. 2005). Howard was required to show

“both but-for and proximate causation.” Evans v. Chalmers, 703

F.3d 636, 647 (4th Cir. 2012). For but-for causation, there must

be sufficient evidence that “the alleged wrongful act(s) caused

[Howard’s] loss of liberty.” Gilliam v. Sealey, 932 F.3d 216, 238

(4th Cir. 2019). For proximate cause, Howard was required to

produce sufficient evidence at trial from which the jury could

reasonably conclude “the conviction was a reasonably foreseeable

result of the initial act of fabrication.” Massey v. Ojaniit, 759

F.3d 343, 354 (4th Cir. 2014) (internal quotations omitted). In

construing the evidence in the light most favorable to Howard, the

court must draw all reasonable inferences in his favor. Burgess

v. Goldstein, 997 F.3d 541, 552 (4th Cir. 2021). Under these

standards, it is apparent that Howard sufficiently carried his

burden.

The jury heard from Michael Nifong, the lead prosecutor in

Howard’s criminal trial. Nifong testified, without objection,

that he could not “imagine that we could have obtained a conviction

without [Oliver’s] testimony.” (Doc. 319 at 171:11-15.) When

asked by Dowdy’s attorneys on cross examination whether he

remembered Oliver being brought to testify before the criminal

jury, Nifong responded, “yes . . . she was a very important

witness.” (Id. at 205:21-206:1.) Nifong further noted that Dowdy

had not reported having threatened or coerced Oliver to give her

statement and, if he had, Nifong “had a duty to report that to the

Court and to the defense counsel.” (Id. at 172:1-173:3.)

Critically, Nifong’s testimony came after Oliver’s video

deposition was played for the jury and in which she stated plainly

that the reason she knew details of the murder was because Dowdy

“must have let [her] know” as she “never witnessed any murder in

[her] life.” (Doc. 294-3 at 10:13-19; 17:15-22.) Dowdy himself

testified in Plaintiff’s case that before the criminal trial he

believed he could only obtain a successful conviction for the

Washington murders “[a]fter Angela [Oliver’s] statement to me.”

(Doc. 316 at 164:16-23.) Dowdy “did not think or believe [he] could

make -- have a conviction” without Oliver’s statement. (Id. at

164:24-165:3.) According to Dowdy, Oliver was the key to Howard’s

conviction, because she “verified the fact that she was there [at

the scene of the murders]” and verified the other information Dowdy

“already had.” (Id. at 165:4-6.) In contrast, the jury heard

from Oliver, who plainly testified that she was never at the scene

of the crimes the night of the murders, that she never witnessed

a murder, and that Dowdy fed her information in her statement.

(Doc. 294-3 at 10:13-19; 17:15-22.)

Dowdy contends that Howard fails to demonstrate causation,

pointing to other evidence the State presented at the criminal

trial which he argues was sufficient to support the guilty verdict.

However, much of the evidence was largely circumstantial. For

example, Dowdy notes Roneka Jackson testified that she heard Howard

threaten to kill Doris Washington the day of the murders and saw

him and his brother exit the apartment later that night. (Doc.

340 at 13.) He also highlights Rhonda Davis’s testimony that she

went to visit Doris at her apartment about 11:30 p.m. and Howard

answered the door to say, “we’re busy.” (Id. at 14; Doc. 72-1 at

199:17-23.) But this was 88 minutes before the fire department

was called. (Doc. 72-1 at 53:11-23.) Another witness, Terry Suggs,

testified that he saw Howard near the Washington apartment

approximately three to five minutes before he saw smoke from the

apartment fire. (Doc. 340 at 14; Doc. 72-1 at 212:3-14.) Kelvin

Best told the jury that he saw Howard and his brother exiting

Doris’s building that evening carrying a television. (Id.; Doc.

72-1 at 228:6-25.) Dwight Moss testified that he heard Howard

threaten to kill Doris earlier that day for “messing up” a drug

deal and that he saw Howard about 11:30 p.m. that evening leaving

the backside of Doris’s apartment; the fire department was called

to the scene at 12:58 a.m. (Id. at 14-15; Doc. 72-1 at 53:11-23,

242:17-243:18.) Gwendolyn Roper Taylor testified that she

overheard Howard at a drink house that he had killed the

Washingtons. (Id. at 15; Doc. 72-1 at 333:2-24); see generally,

Howard v. City of Durham, 487 F. Supp. 3d 377, 392-98 (M.D.N.C.

2020).

Each of these witnesses carried arguable credibility issues,

ranging from prior drug use and criminal histories to

inconsistencies in their stories, which were put before the

criminal jury. Id. Nevertheless, Dowdy relies on these witnesses

as well as Robbie Davis, who testified that he heard Howard state

that Doris was going to kill Nishonda for being away with an older

man (Doc. 72-1 at 273:1-24), and Durham Fire Chief Milton Smith,

who testified that Howard told him he and his brother Kenny “did

this thing” in reference to the murders, to argue that there was

insufficient causation evidence to allow Howard’s claim involving

Oliver’s statement to go to the jury. (Doc. 340 at 16.) According

to Dowdy, “the wealth of inculpatory evidence against [Howard]

described above plus Howard’s own admission that he was at the

scene of the crime near the time of the murders” forecloses the

conclusion that Oliver’s statement was the but-for cause of his

conviction. (Id.)

However, the jury in the criminal trial also heard from

Howard, who testified in his defense and denied being present or

involved in the murders. (Doc. 72-1 at 498:1-7; 536:5-17.)

Further, Howard called one of his girlfriends, Natasha Mayo, to

the stand, who generally corroborated Howard’s testimony that he

was not in the Washington apartment the night of the murders and

that he was not involved in the homicides or arson. (Id. at 480:1-

10.) In sum, the State put on eight witnesses who all presented

circumstantial inculpatory evidence, while Howard himself

testified he had no involvement in the homicides and put forth

another witness who corroborated his testimony. In addition, the

1994 jury had to evaluate Oliver’s recorded statement with her

testimony at trial. Oliver’s statement provided a layer of

credibility beyond that offered by the State’s other witnesses;

she knew details of the crime that were not publicly disclosed,

adding credence to the suggestion that she was at the scene of the

crimes and witnessed Howard commit them.

The civil jury could therefore rely on the two witnesses most

intimately involved with Howard’s criminal prosecution –- the lead

prosecutor on the case, Nifong, and Defendant Dowdy, the lead

detective, both of whom acknowledged in this case that they were

unlikely to have obtained a conviction without Oliver’s testimony.

While Dowdy now points to other inculpatory testimony by other

witnesses at Howard’s criminal trial, Oliver’s testimony not only

put Howard at the scene of the Washington murders, but detailed

how Howard committed those murders with information known only to

the medical examiner and not released to the public. She was the

only witness who purported to observe Howard inflict Doris

Washington’s blunt-force chest injury which caused her death and

to specifically place Howard, who otherwise was a frequent

trespasser onto the grounds of the Washingtons’ apartment complex

(and thus seen there commonly by all the witnesses who testified),

in the Washingtons’ apartment during the murders. A reasonable

jury could conclude that it was not only reasonably foreseeable

that Oliver’s fabricated statement proximately caused Howard’s

convictions for the Washington murders, but that the convictions

would not likely have resulted but for her testimony.

For these reasons, the court therefore finds that, after

viewing the evidence in the light most favorable to Howard, he has

produced sufficient evidence from which a reasonable jury could

conclude that Oliver’s statement was fabricated and the but-for

and proximate cause of his wrongful conviction.

C. Inadequate Investigation

In addition to his claim of fabrication, Howard alleged that

Dowdy failed to investigate the source of semen found in Nishonda

Washington in a bad faith effort to cover up his fabrication after

DNA excluded Howard as the contributor of the semen. Dowdy

responds, in contrast, that Howard failed to produce any evidence

that, after Oliver gave her statement, “Dowdy intentionally failed

to follow up on an existing lead that pointed to an alternative

suspect for the Washington murders.” (Doc. 340 at 18-19.)

In general, there is no independent constitutional right to

the investigation of a third party. Sattler v. Johnson, 857 F.2d

224, 227 (4th Cir. 1988). However, a claim for a due process

violation for failing to perform an adequate investigation exists

where an officer takes bad faith actions to shield his wrongful

acts, including fabricating testimony. Gilliam, 932 F.3d at 240-

41. Howard thus needed to produce sufficient evidence at trial

from which a reasonable jury could conclude that Dowdy’s failure

to investigate the source of the semen found in Nishonda was the

product of a bad faith attempt to shield his fabrication of

Oliver’s statement. Put another way, Howard claims that Dowdy’s

failure to investigate Nishonda’s murder as contemporaneous with

a sexual assault (anal rape of a 13-year-old) was purposeful

because Dowdy had “tunnel vision” to prosecute Howard and knew

that details indicating a sexual assault occurred as part of the

crimes would be inconsistent with Oliver’s transcribed, and

allegedly fabricated, statement blaming Howard for a murder that

did not involve any sexual assault.

Dowdy points to Gilliam v. Sealey to argue that Howard’s

evidence fails to sufficiently support the inadequate

investigation claim. (Doc. 349 at 6); 932 F.3d 216, 240-42 (4th

Cir. 2019), cert. denied, 140 S. Ct. 2641 (2020). Gilliam stemmed

from the wrongful conviction of two teenage boys who brought suit

against the law enforcement officers who investigated the

underlying crime, alleging the officers coerced confessions from

the boys and then failed to adequately investigate other suspects.

On September 24, 1983, the victim, Sabrina Buie, went missing.

Id. at 222. Two days later, her body was discovered in a field

with overwhelming evidence that she had been sexually assaulted.

Id. While processing the crime scene, law enforcement officers

discovered three beer cans, three match sticks, one cigarette butt,

and two wooden sticks coated with blood. Id.

Three days after discovery of Buie’s body, officers

fingerprinted and questioned Henry McCollum, a potential suspect,

at the police station. Id. At the conclusion of the questioning,

McCollum, an intellectually disabled 19-year-old, signed a

confession drafted by the interviewing detectives. Id. at 233.

The confession also implicated McCollum’s brother, Leon Brown, as

participating in the crime. Id. After signing the confession,

McCollum and Brown were arrested and charged with murder. Id.

Despite arguments that the confessions were coerced, a jury found

McCollum guilty of rape and first-degree murder and sentenced him

to death. Id. at 224. A separate jury found Brown guilty of rape

and sentenced him to life in prison. Id. at 225.

In 2009, roughly 17 years after his conviction, Brown sought

assistance from the North Carolina Innocence Inquiry Commission,

which accepted both Brown’s and McCollum’s cases. Id. During its

investigation, the Commission discovered DNA evidence on the

cigarettes located near Buie’s body which matched the DNA of Roscoe

Artis, a man known to law enforcement officers during the Buie

murder investigation. Id. Artis was convicted of rape and murder

in a crime “strikingly similar to Buie’s murder” when the body of

another woman was found just one month after Buie’s. Id. As is

the case here, the DNA tested from the scene of Buie’s murder did

not match McCollum or Brown, and the only DNA evidence that was

tested after the fact matched someone else –- Artis.

Documents recorded prior to McCollum and Brown’s first trials

listed Artis as a suspect in the Buie murder. Id. at 228. On

October 5, 1984, three days prior to McCollum and Brown’s first

trial, investigators submitted Artis’s fingerprints to the State

Bureau of Investigation to compare with those found on the beer

can at the Buie crime scene. Id. However, the investigators

canceled the fingerprint request on the same day, and the

comparison was never completed. Id. This, despite the fact that

an additional witness had come forward and informed the

investigators that she “witnessed Artis attacking Buie on the night

of the murder, and that she attempted to intervene[,] but Artis

frightened her away.” Id. Although the witness testified that

she provided this information to one of the investigators,

Detective Sealey, the detective’s contemporaneous investigation

notes did not reflect her testimony. Id.

Additionally, investigators interviewed L.P. Sinclair, a

friend of McCollum and Brown’s, who originally claimed he did not

know anything about Buie’s death. Id. However, when the State

Bureau of Investigation marked him as a suspect and ordered

analysis of his fingerprints, Sinclair changed his story and

testified that McCollum had confessed to him the day after Buie’s

murder. Id. Sinclair’s fingerprints were not analyzed after he

changed his testimony.

Relevant to the claims in this case, McCollum and Brown sued

the investigators, alleging violations of their right to due

process when the investigators failed to sufficiently investigate

Artis and Sinclair in connection with Buie’s rape and murder. Id.

at 240. McCollum and Brown argued that the investigators had

failed to test whether Artis’s or Sinclair’s fingerprints matched

the print found on the beer can at the crime scene. Id. In

affirming the district court’s denial of the defendants’ motion

for summary judgment, the Fourth Circuit noted that McCollum and

Brown’s claims were that the investigators’ “failure to

investigate was a result of their bad-faith suppression of

evidence.” Id. at 241. That claim could amount to a due process

violation if “the jury concluded that [the investigators’] actions

after [McCollum and Brown’s] arrests –- including failing to

adequately investigate Artis and the crime scene . . . –- were

done in bad faith in order to shield [the investigators’] wrongful

acts related to [McCollum and Brown’s] coerced or fabricated

confessions.” Id. In other words, had the investigators failed

to analyze Artis’s or Sinclair’s fingerprints in bad faith to

shield their coercion of McCollum or Brown’s confession, then

McCollum and Brown could establish a due process violation.

Dowdy argues that Howard “did not produce similar evidence

that, after Oliver gave her statement, Dowdy intentionally failed

to follow up on an existing lead that pointed to an alternative

suspect for the Washington murders.” (Doc. 340 at 18-19.)

However, Gilliam does not require “an existing lead” that points

to another suspect. All Gilliam requires is sufficient evidence

from which a jury could conclude that Dowdy failed to investigate

material evidence –- here, the whereabouts of Nishonda and her

boyfriend -- in an effort to shield his fabrication of Oliver’s

statement, and Howard has satisfied that requirement.

The autopsy of Nishonda Washington reveled sperm in her anus.

(Doc. 87-18 at 6.) In February 1993, DPD obtained samples of

Howard’s DNA to test against this sperm. (Doc. 87-8 at 46.) A

DNA test from March 1993 excluded Howard as the source of the

sperm. (Doc. 87-21.) Dowdy thus understood at that time, before

trial, that if the killer had had sex with Nishonda, Howard was

not the killer. (Doc. 87-2 at 183:24-184:4.) The question then

was whether the killer had sex with Nishonda before her death and,

if so, who he was.

Dowdy provided Nifong an answer to the first question –- that

Nishonda had been away from the Washington apartment with her

boyfriend for four or five days and returned the night before the

murders. (Doc. 72-1 at 423::8-19; Doc. 309 at 97:13-20.) Based

on this information, Nifong proceeded to trial and presented this

information to the criminal jury. (Doc. 319 at 158:3-25.) Dowdy’s

theory at the time was that the semen located in Nishonda’s anus

was her boyfriend’s (Doc. 309 at 97:21-98:1), which meant that the

killer did not have sex with Nishonda prior to the murders.

According to Dowdy’s representations to Nifong, the DNA testing of

the sperm in Nishonda did not exclude anyone from being the

murderer, because it came consensually from Nishonda’s

unidentified boyfriend. Dowdy admitted on the stand before the

civil jury that he testified in the criminal trial that the semen

found in Nishonda was consensual based on his “thought . . . that

she was with her boyfriend” prior to the murders. (Id. at 151:10-

24.) At Howard’s criminal trial, Dowdy testified definitively

that he did not suspect Nishonda had been sexually assaulted,

because she was with “her boyfriend” for “almost a week” prior to

the murders, and only returned mere hours prior to her murder.

(Doc. 72-1 at 422:25-423:19.)

However, Howard produced evidence which called into question

the validity of Dowdy’s investigation. For instance, Dowdy wrote

in his report that a witness, Ella Moore, informed him that

Nishonda had been away for four days and returned on Sunday –- two

days before the murders. (Doc. 87-8 at 9-10.) Despite this, Dowdy

consistently noted that Nishonda “returned the day of the

homicide.” (Doc. 309 at 99:23-25.) In fact, none of the witnesses

Dowdy listed in his report corroborated his timeline.5 Dowdy later

5 For instance, another witness Dowdy interviewed was Alice Gordon, who

stated that she had not seen Doris or Nishonda for a week prior to the

murders. (Doc. 309 at 164:7-165:16.) Gordon provided no information

as to when Nishonda came home, and the only witness who does provide

that information is Moore. (Id. at 165:15-20.)

suggested that he may have prepared notes of conversations with

neighbors following Nifong’s request shortly before Howard’s

criminal trial; however, those notes are missing. (Doc. 87-2 at

178:18-181:22.) Furthermore, he explained to the civil jury that

handwritten notes are not given to the prosecutor, so anything

relevant from those interviews would have to be in Dowdy’s report,

otherwise the prosecutor would not know of the information obtained

in those interviews. (Doc. 309 at 72:7-12.) But Dowdy never

submitted any handwritten notes to the prosecutor or otherwise

included them in his report because, he maintained, they failed to

turn up any new evidence. Therefore, the only evidence included

in Dowdy’s report indicated that Nishonda returned on Sunday, and

nowhere is there any evidence that she returned Tuesday evening.

Nevertheless, Dowdy told the prosecutor that Nishonda had returned

on Tuesday, and the prosecutor relied on that in his questioning

of Dowdy and his representations to the criminal jury at trial.

(Doc. 72-1 at 423:8-19; Doc. 309 at 106:5-20.) In the present

case, Dowdy relied only on his own testimony to support his

representation of Nishonda’s whereabouts.

The timing of Nishonda’s return was critically important. At

Howard’s criminal trial, the jury was told that the sperm found in

Nishonda’s rape kit had been deposited within approximately 24

hours of the autopsy, which took place at 10:00 a.m. the day after

the murders. (Doc. 72-1 at 80:17-25.) In the present case, the

jury heard testimony from two DNA experts, one from each side, who

both concluded that the sperm had most likely been deposited within

24 hours of the time the samples were taken at autopsy. (Doc. 306

at 127:11-21; 187:6-22.) If Nishonda had returned on Sunday, as

Dowdy’s report indicates, she would have returned two days prior

to the murders and, whether or not she was with a boyfriend, she

would have returned far outside the 24-hour window of likelihood

established by the sperm found at autopsy. Yet, Dowdy told the

prosecutor that he had investigated Nishonda’s whereabouts and

concluded she was with her boyfriend, returning only on the evening

of the murders even though his report reflected contradictory

evidence that she returned on Sunday, outside the likely window

established by the analysis of sperm at her autopsy.

Dowdy conceded that any potentially relevant information had

to be included in a police report. (Doc. 309 at 128:16-22.) He

acknowledged that evidence as to whether or not Nishonda had a

boyfriend would be relevant and would have been part of the police

file. (Id. at 128:23-129:2.) However, his file contains no

evidence about Nishonda’s boyfriend or her returning to the

Washington apartment within 24 hours of the autopsy as indicated

by the sperm. (Id. at 129:3-6.) When asked at trial why there

was no such evidence, Dowdy testified that “[t]here was a detective

who was actually assigned to follow up on the aspect of

[Nishonda’s] boyfriend. Detective A.J. Carter, in particular, did

the follow-up in reference to the boyfriend and the whereabouts of

Nishonda Washington.” (Id. at 129:8-16.) This was the first time

in the 26-year history of this case that Dowdy disclosed the

identity of a Detective Carter or otherwise indicated that Carter

was the one who investigated Nishonda’s whereabouts. In fact,

Howard presented to the jury Dowdy’s responses to interrogatories

seeking the names of all persons with knowledge of the case, and

of the 21 persons named, Carter is not one of them. To complicate

matters, Dowdy indicated that Carter is deceased and his files are

likely missing due to the passage of time. (Id. at 132:10-15.)

Dowdy’s representations led Nifong to elicit his testimony at

Howard’s criminal trial that he had determined Nishonda’s

whereabouts for the time prior to her murder, that she was with

her boyfriend, and she returned the evening immediately prior to

her murder.6 (Id. at 96:2-20.) This explained away the semen

found in her body and, more importantly, the fact that Howard’s

DNA did not match it. In the present case, Dowdy conceded that,

based on the information he had, he “thought” Nishonda was with

her boyfriend prior to the murders. (Id. at 151:10-15.) Dowdy

also professed that he had no memory of talking to any other

witnesses in this case beyond those listed in his report. (Id. at

6 It is not entirely clear how Nifong was permitted to elicit this hearsay

testimony from Dowdy in the state trial as to what neighbors told him

about when Nishonda returned home.

65:2-6.) Given Dowdy’s inconsistent explanations as to Nishonda’s

whereabouts over the course of this case, the competing evidence

that discredits his conclusion that Nishonda returned hours before

she was murdered, and the fact that Dowdy understood the

prosecutors were relying on his statements that Nishonda was with

her boyfriend prior to the murder, Howard presented sufficient

evidence from which the jury could conclude that Dowdy inadequately

investigated Nishonda’s boyfriend as the source of the semen found

in her anus at the time of her murder.

The jury also could have reasonably concluded that Dowdy

purposefully failed to adequately investigate this aspect of the

case to shield his fabrication of Oliver’s statement. Had Dowdy

investigated Nishonda’s boyfriend and determined – as the only

evidence in his report supported -- that Nishonda had returned

days, rather than hours, before her murder, it would have seriously

undermined the state’s case by leaving unexplained the semen found

in Nishonda’s anus. This would have called into question the

validity of Oliver’s testimony, because at no point did Oliver’s

original statement – or any other evidence – suggest that Howard

sexually assaulted Nishonda. Thus, because a reasonable jury could

conclude that failure to tie the semen to the alleged boyfriend

would seriously undermine Oliver’s original statement, it could

conclude that Dowdy inadequately investigated Nishonda’s

whereabouts and her alleged boyfriend in an attempt to shield his

fabrication of Oliver’s statement from more intense scrutiny. As

such, Dowdy’s renewed motion as a matter of law will be denied.

Dowdy next presents an ancillary argument that the format of

the jury instructions and the verdict sheet warrant a new trial,

because “the jury was not asked to separately answer a question as

to whether Oliver’s statement was fabricated.” (Doc. 340 at 19.)

Dowdy frames this request for a new trial pursuant to Rule

50(b)(2). (Id. at 5.) However, as the court has already stated,

Dowdy’s Rule 50 motion is unpersuasive. Pertaining to the jury

instructions, Dowdy states “if the Court does not grant judgment

as a matter of law for the defendant, it should order a new trial

as to this issue.” (Id. at 20.) Therefore, as Dowdy seems to

separate his request for a new trial from his renewed motion as a

matter of law, and because the court has denied his motion as a

matter of law, the court construes Dowdy’s argument as a request

pursuant to Federal Rule of Civil Procedure 59. Pursuant to Rule

59, a district court may grant a new trial if “(1) the verdict is

against the clear weight of the evidence, or (2) is based upon

evidence which is false, or (3) will result in a miscarriage of

justice, even though there may be substantial evidence which would

prevent the direction of a verdict.” Bilenky v. Ryobi Techs.,

Inc., 115 F. Supp. 3d 661, 668 (E.D. Va. 2015) (quoting Atlas Food

Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 594

(4th Cir. 1996)), aff'd, 666 F. App'x 271 (4th Cir. 2016). “The

decision to grant or deny a motion for a new trial lies at the

heart of the district court's sound discretion and ‘will not be

disturbed absent a clear showing of abuse of discretion.’” Gibson

v. Total Car Franchising Corp., 223 F.R.D. 265, 276 (M.D.N.C. 2004)

(quoting Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir.

1985) cert. denied, 475 U.S. 1016 (1986)).

As to Howard’s fabrication claim, the court instructed the

jury that Howard alleged that Dowdy fabricated two pieces of

evidence –- Oliver’s taped statement and Dowdy’s investigation

into whether Nishonda was sexually assaulted. (Doc. 328 at 11.)

The jury instructions expressly informed the jurors that

“[a]lthough Plaintiff alleges two separate fabrications of

evidence, you may find the Defendant liable based on either or

both pieces of evidence as long as you unanimously agree that the

Plaintiff has proven by a preponderance all the elements as to

that piece of evidence.” (Id.) For Howard’s bad faith failure to

investigate claim, however, the court instructed the jury, “[i]f

you do not find the Defendant liable for fabrication with respect

to Angela Oliver, as set out earlier in these instructions, then

you may not find the Defendant liable on this claim.” (Id. at

15.)

The verdict form posed two questions. The first asked:

1. Has Plaintiff Darryl Howard proven by a

preponderance of the evidence that Defendant

Darrell Dowdy violated 42 U.S.C. § 1983 by

denying him his constitutional right to due

process by:

a. Fabrication of evidence: ___________

b. Suppression of evidence: ___________

c. Bad faith failure to investigate: _________

(Doc. 327.) The second question asked, if the jury answered yes

to any part of the question above, what amount of compensatory

damages Howard should recover of Dowdy. (Id.)

The jury answered “yes” to questions 1(a) and 1(c). (Id.)

In finding that Howard had carried his burden and proven both his

fabrication of evidence claim and his bad faith failure to

investigate claim, the jury awarded Howard $6,000,000 in

compensatory damages. (Id.) Because the jury was instructed

that the inadequate investigation claim required the jury to have

found that Oliver’s statement was fabricated and the jury’s verdict

form reflects a finding that Dowdy fabricated evidence but does

not enumerate which specific evidence the jury found he fabricated,

Dowdy argues the court should order a new trial as to the bad faith

failure to investigate claim. (Doc. 340 at 20.)

“A jury is presumed to follow the instructions of the court.”

Stamathis v. Flying J, Inc., 389 F.3d 429, 442 (4th Cir. 2004).

“[A]bsent some specific ‘reason to doubt that the jury . . .

adhered to the district court’s directive,’” the court must assume

the jury followed the instructions. United States v. Runyon, 707

F.3d 475, 497 (4th Cir. 2013) (quoting United States v. Castillo-

Pena, 674 F.3d 318, 322 (4th Cir. 2012)). With respect to Howard’s

bad faith failure to investigate claim, the court expressly

instructed the jury that “[i]f you do not find the Defendant liable

for fabrication with respect to Angela Oliver, as set out earlier

in these instructions, then you may not find the Defendant liable

on this claim.” (Doc. 328 at 15.) Dowdy has provided no evidence

or explanation that calls into the doubt the presumption that the

jury understood and followed this instruction, and thus the court

will not disturb the jury’s verdict.

In his reply brief, Dowdy argues that the verdict form was

structured such that there was a “lack of a clear indication from

the jury that it decided in Plaintiff’s favor with respect to the

claim of fabrication of Oliver’s statement.” (Doc. 349 at 8.) To

the extent Dowdy now objects to the verdict form, he has waived

that complaint by having failed to raise that objection before the

jury retired to deliberate. See Fed. R. Civ. P. 49(a)(3); AG Sys.,

Inc. v. United Decorative Plastics Corp., 55 F.3d 970, 973-74 (4th

Cir. 1995) (noting that a party’s failure to object to the form of

special interrogatories waives that challenge on appeal).

Dowdy’s argument that the verdict sheet is insufficiently

detailed is also lacking in merit. In his own proposed jury

instructions, Dowdy made no mention of Oliver’s statement

regarding Howard’s bad faith failure to investigate claim. Rather,

Dowdy proposed an instruction which read in part that Howard must

prove the following:

1. That Defendant Darrell Dowdy deliberately

suppressed material exculpatory evidence from

the prosecutor and/or deliberately fabricated

material evidence.

2. That Defendant Darrell Dowdy then

deliberately in bad faith failed to conduct an

adequate investigation to shield such

fabrication and/or suppression of evidence.

3. That such deliberate failure to investigate

resulted in Plaintiff Darryl Howard’s

conviction and imprisonment.

(Doc. 281 at 26.) Unlike the court’s final jury instructions,

Dowdy’s proposed instructions did not advise the jury at all that

Howard’s bad faith failure to investigate claim required the jury

to have found that Dowdy fabricated Oliver’s statement.

In addition to the jury instructions, Dowdy also advocated

for the court to structure the verdict form in a way that is

similar to that to which he now objects. Dowdy’s proposed verdict

form included three simple questions:

1. Did Plaintiff Darryl Howard prove by a preponderance of

the evidence that Defendant Darrell Dowdy deliberately caused

Plaintiff Darryl Howard to be deprived of his constitutional

right to a fair trial?

Yes _________ No _________

2. Did Plaintiff Darryl Howard prove by a preponderance of

the evidence that Defendant Milton Smith7 Deliberately caused

Plaintiff Darryl Howard to be deprived of his constitutional

right to a fair trial?

7 Milton Smith was dismissed as a Defendant by Howard just before trial.

(Doc. 305.)

Yes _________ No _________

If you answer Issue No. 1 or No. 2 in favor of Plaintiff

Darryl Howard, proceed to answer Issue No. 3. If you answer

Issue No. 1 and No. 2 “No” in favor of Defendants Darrell

Dowdy and Milton Smith, that is your verdict and you shall

not answer Issue No. 3.

3. In accordance with the Court’s instructions regarding

compensatory damages, please state the amount, if any, of

damages Plaintiff Darryl Howard has proven by a preponderance

of the evidence.

$ _________

(Doc. 279 at 1-2.) Dowdy’s proposed verdict form made no mention

of Oliver’s testimony and, in fact, did not separate out Howard’s

claims at all. Rather, Dowdy requested that the court group all

of Howard’s claims together, which is exactly the basis for Dowdy’s

present criticisms of the finalized verdict form. Not only did

Dowdy advocate for this in his pre-trial filings, but Dowdy’s

counsel also reiterated orally his desire that the verdict form

not separate the factual bases for Howard’s claims. (See Doc. 335

12:17-13:4 (Dowdy’s counsel explaining, “On the verdict sheet,

Your Honor, as we have stated before, we do object to having the

various factual contentions of the constitutional right violation

being separated.”)) As such, because Dowdy not only never objected

to the exclusion of special interrogatories about the fabrication

of Oliver’s statement, but he in fact advocated against the

inclusion of the special interrogatory for which he now advocates,

his motion to set aside the verdict and alternatively for a new

trial on Howard’s bad faith failure to investigate claim will be

denied. See Legacy Data Access, Inc. v. Cadrillion, LLC, 889 F.3d

158, 170-71 (4th Cir. 2018) (holding a party is foreclosed from

objecting to a jury instruction it proposed and the court adopted).

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Dowdy’s renewed motion for

judgment as a matter of law (Doc. 339) is DENIED.

/s/ Thomas D. Schroeder

United States District Judge

May 26, 2022