State v. Brown

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-197

Filed 3 December 2024

Durham County, No. 14 CRS 51267

STATE OF NORTH CAROLINA

v.

ANTHONY TYRONE BROWN

Appeal by defendant from order entered 28 June 2022 by Judge Josephine Kerr

Davis in Durham County Superior Court. Heard in the Court of Appeals 25

September 2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri

Horner Lawrence, for the State.

N.C. Center on Actual Innocence, by Christine C. Mumma and Michael T.

Roberson, for defendant-appellant.

DILLON, Chief Judge.

During a post-conviction investigation, Defendant Anthony Tyrone Brown

learned that evidence from his case had been destroyed. Defendant moved to vacate

his conviction, contending the destroyed evidence could have been tested with new

DNA testing technologies and might have exonerated him. The trial court denied his

motion. We affirm.

I. Background

In October 2014, Defendant was convicted of robbery with a firearm and

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Opinion of the Court

sentenced to 84 to 113 months of imprisonment. Defendant appealed his conviction,

and our Court held no error. See State v. Brown, 247 N.C. App. 399 (2016)

(unpublished).

Following his conviction, the North Carolina Center on Actual Innocence

(“NCCAI”) investigated Defendant’s case and requested an inventory on the evidence

held by the Durham Police Department and Durham County Clerk of Superior Court

(“Durham Clerk’s Office”). The Durham Clerk’s Office responded that the evidence

entered as exhibits at Defendant’s trial had been destroyed.

In January 2021, Defendant filed a Motion for Hearing Regarding Unlawful

Destruction of Evidence.

In March 2022, Defendant moved for a hearing on the matter. Defendant

alleged that the Durham Clerk’s Office violated N.C.G.S. § 15A-268 by destroying

biological evidence without proper notice to him and that the destruction of the

evidence (specifically, latent fingerprints collected from the crime scene) prejudiced

him by depriving him of the opportunity to conduct exculpatory DNA testing. In his

motion, Defendant sought an order to calendar a hearing on the matter without

further delay and then, after the hearing, for an order to be entered vacating his

conviction and dismissing the robbery charge with prejudice.

Approximately one week later, Judge Orlando Hudson entered an order

directing that the matter be calendared for hearing without delay. In his order, Judge

Hudson determined, in relevant part, that (1) the destroyed evidence was “biological

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evidence” under Section 15A-268(a); (2) the Durham Clerk’s Office was required to

preserve the destroyed evidence for the duration of Defendant’s incarceration,

pursuant to Section 15A-268(a6)(3); and (3) the Durham Clerk’s Office could only

dispose of the destroyed evidence if the requirements of Section 15A-268(b) were met.

In June 2022, another judge, Judge Josephine Kerr Davis, held the hearing

ordered by Judge Hudson. Following the hearing, Judge Davis entered an order

denying Defendant’s motion.1 Defendant petitioned our Court for a writ of certiorari

to review Judge Davis’s order, which our Court allowed on 9 October 2023.2

II. Analysis

Defendant contends the trial court erred in denying his motion to dismiss his

conviction. He presents several arguments, which we address in turn.

A. Meaningful Appellate Review

First, Defendant asserts that our Court is unable to conduct a meaningful

1 The June 2022 Order stated, “DEFT MOTION FOR HEARING REGARDING UNLAWFUL

DESTRUCTION OF EVIDENCE - PER COURTS IS DENIED.” We construe this order in light of the

presumption of regularity and that the trial court was denying the relief requested by Defendant (i.e.,

dismissal of charges), and not that the trial court was denying Defendant’s motion for a hearing (which

had already been granted in the March 2022 Order).

2 Defendant has also filed with our Court a Motion for Appropriate Relief, alleging he received

ineffective assistance of counsel in his 2014 trial, and a Motion to Amend the Record and Consider

Materials Pursuant to Rule 2. In our discretion, we deny Defendant’s motion to amend, and we dismiss

his MAR without prejudice to file it in the trial court.

The State also filed a Petition for Writ of Certiorari, asking our Court to review the March 2022

Order, arguing that the Durham Clerk’s Office was not required to preserve the destroyed fingerprints

because they were not designated as evidence that “may have biological evidentiary value,” pursuant

to N.C.G.S. § 15A-268(a3). In our discretion, we deny the State’s petition and, therefore, need not

determine whether the trial court correctly determined in its March 2022 Order that the Durham

Clerk’s Office violated the statute by destroying the fingerprint evidence.

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Opinion of the Court

review of Judge Davis’s order because her order did not include findings of fact or

conclusions of law. We disagree.

Judge Davis’s order merely states that Defendant’s “MOTION FOR HEARING

REGARDING UNLAWFUL DESTRUCTION OF EVIDENCE – PER COURTS IS

DENIED.” Again, in Defendant’s Motion, he sought both a hearing and then the

vacatur of his conviction/dismissal of the robbery charge. We construe Judge Davis’s

order as a denial of Defendant’s request for the vacatur of his conviction/dismissal of

the robbery charge and not of his request for a hearing. Judge Hudson already

ordered the hearing, and Judge Davis held the hearing.

In any event, we note Section 15A-268, which is part of the DNA Database and

Databank Act, does not expressly require that the trial court make specific findings

of fact or conclusions of law. See N.C.G.S. § 15A-268. And we have held that an order

entered pursuant to another part of the Act, Section 15A-269, does not require

findings and conclusions. Specifically, in State v. Gardner, we declined to impose a

requirement that the trial court make specific findings and conclusions for orders

denying relief based on Section 15A-269. 227 N.C. App. 364, 370 (2013). Also, in

State v. Shaw, we explained that a motion pursuant to Section 15A-269 is distinct

from a Motion for Appropriate Relief (“MAR”) and has “wholly separate” procedures.

259 N.C. App. 703, 706 (2018). Whereas an MAR requires the trial court to make

specific findings of fact when it holds an evidentiary hearing, see N.C.G.S. § 15A-

1420(c)(4), Section 15A-269 contains no such requirement. Similarly, we hold Section

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15A-268 does not require the trial court to make specific findings of fact and

conclusions of law.

B. Due Process

Defendant argues that the trial court denied him his requested remedy in

Judge Davis’s order without reaching the due process issue. When the State

presented its argument at the June 2022 hearing, the State focused its argument on

whether the destroyed fingerprints required preservation under Section 15A-268—

an issue already decided by Judge Hudson in the March 2022 Order. Defendant

asserts that Judge Davis adopted the State’s position and ruled against Defendant

because she (presumably) agreed Section 15A-268 did not require preservation of the

evidence destroyed by the Durham Clerk’s Office. We note it would be inappropriate

for Judge Davis to rule based on those grounds, as she would impermissibly be

overruling Judge Hudson’s earlier order. See Michigan Nat’l Bank v. Hanner, 268

N.C. 668, 670 (1966) (“The power of one judge of the superior court is equal to and

coordinate with that of another[.]”). See also Calloway v. Ford Motor Co., 281 N.C.

496, 501 (1972) (“[O]rdinarily one judge may not modify, overrule, or change the

judgment of another Superior Court judge previously made in the same action.”).

We, however, do not construe Judge Davis’s order as overruling Judge

Hudson’s earlier order. Specifically, in his order, Judge Hudson determined that the

Durham Clerk’s Office destroyed evidence that was required to be preserved, and he

ordered a hearing, which was in his discretion. See N.C.G.S. § 15A-268(g) (“[T]he

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court may conduct a hearing[.]”). Judge Davis then conducted a hearing pursuant to

Section 15A-268(g), which does not require a trial court to dismiss charges where

evidence is improperly destroyed. Instead, it provides, “If the court finds the

destruction violated the defendant’s due process rights, the court shall order an

appropriate remedy, which may include dismissal of charges.” Id.

We conclude that, by denying Defendant’s motion to vacate his conviction,

Judge Davis necessarily found that Defendant’s due process rights were not violated

by the evidence destruction and, accordingly, that Defendant’s requested remedy was

not required. See id. (instructing the court “shall” grant an appropriate remedy only

if the court finds that destruction violated the defendant’s due process rights).

A defendant has the burden of proving a due process violation at the hearing,

in addition to proving a violation of Section 15A-268. And based on Judge Davis’s

order, we conclude she determined Defendant failed to meet his burden.

Though we have not yet addressed a defendant’s burden to show a due process

violation specifically under Section 15A-268(g), our Supreme Court has described a

defendant’s burden to show a due process violation under another statute which also

addresses preservation of evidence; namely Section 15-11.1, which states that “[i]f a

law-enforcement officer seizes property pursuant to lawful authority, he shall safely

keep the property under the direction of the court or magistrate as long as necessary

to assure that the property will be produced at and may be used as evidence in any

trial.” N.C.G.S. § 15-11.1. Specifically, that Court stated:

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Opinion of the Court

[W]hen the State fails to preserve evidentiary material of

which no more can be said than that it could have been

subjected to tests, the results of which might have

exonerated the defendant, the unavailability of the

evidence does not constitute a denial of due process of law

unless the defendant shows bad faith on the part of the

State.

State v. Lewis, 365 N.C. 488, 501 (2012) (cleaned up). See also Arizona v. Youngblood,

488 U.S. 51, 58 (1988) (“We therefore hold that unless a criminal defendant can show

bad faith on the part of the police, failure to preserve potentially useful evidence does

not constitute a denial of due process of law.”).

Our Supreme Court has held that the bad faith requirement applies to the

destruction of evidence before trial. Applying the Supreme Court’s reasoning, we hold

the same burden (i.e., showing bad faith by the State) applies for showing a due

process violation based on the destruction of evidence after trial or after a defendant’s

conviction.

In this case, Defendant has failed to show that the Durham Clerk’s Office acted

in bad faith in destroying the evidence.

In support of his argument that the Durham Clerk’s Office acted in bad faith,

Defendant notes the following: Before the Durham Clerk’s Office destroyed the

fingerprints, the State received notice that NCCAI was investigating Defendant’s

case; NCCAI emailed the Durham Clerk’s Office inquiring about the fingerprints

before their destruction; and the Durham Clerk’s Office preserved the fingerprints

for several years before destroying them.

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However, it is also possible the Durham Clerk’s Office thought it was

complying with procedure when it destroyed the evidence. There are conflicts in

Section 15A-268 between (a1), which requires a custodial agency to preserve physical

evidence that likely contains biological evidence, and (a3) and (a4), which only require

evidence preservation when evidence is designated as having biological evidentiary

value and the trial court instructs the clerk of superior court to take custody and

preserve the evidence. See N.C.G.S. §§ 15A-268(a1), (a3), (a4).

Accordingly, Defendant failed to show the Durham Clerk’s Office/the State

acted in bad faith in destroying the latent fingerprint cards. Thus, the trial court did

not violate Section 15A-268 when it denied Defendant his requested remedy.

AFFIRMED.

Judges MURPHY and THOMPSON concur.

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