“It appears they’re not following the law,” said Rep. Verla Insko, a Chapel Hill Democrat who cosponsored the 2006 Governor’s DWI Task Force Recommendations bill, which was signed into law by Gov. Mike Easley, and went into effect that December.
The law requires any prosecutor who voluntarily dismisses a DWI charge to sign a detailed written explanation that includes, among other items, the reason why the charge is being dismissed, the driver’s alcohol concentration, a list prior convictions, what elements of the charge the prosecutor believes they can prove, what elements they believe they cannot prove, the name and agency of the charging officer and whether the officer is available to testify.
“Obviously, we intended that that be complied with,” said Speaker Joe Hackney, the bill’s main sponsor, “and it’s disappointing to hear that that might not be the case.” The law also requires that a copy of the Prosecutor’s Explanation of Dismissal or Reduction, commonly known as the longform dismissal, be sent to the head of the law enforcement agency employing the charging officer. Representatives of Greensboro police Chief Tim Bellamy, High Point police Chief Jim Fealy and Guilford County Sheriff BJ Barnes said their agencies have never received documentation of any dismissals.
An example of the incomplete documentation DWI charge dismissed for Joseph Bryan Mabe, a 22-year-old Greensboro resident. The long-form dismissal notes that Mabe blew a 0.11 — well above the 0.08 blood alcohol content threshold — during a traffic stop conducted by Greensboro police Officer BM Graves, and duly notes that Graves was not available to testify. The form is unsigned and undated.
Internal court records indicate the case was dismissed in May 2008. Graves was terminated from the department several months later, according to information provided by the Greensboro Human Resources Department. The prosecutor’s initials on sleeve of the case file are illegible.
“That’s my handwriting,” Assistant District Attorney William S. Reavis sad. “That was my dismissal…. My initials are on the shuck.
My initials are rather notorious. Judges know them because my handwriting is rather bad.” Reavis initially downplayed the omission, arguing that the central purpose of the law is to document the reason for the dismissal.
“DAs have big caseloads,” he said. “I make mistakes. Did that mistake circumvent the law? Does the law require strict adherence all the time? It’s a little redundant to write what elements of the charge I can prove when I’ve already said the reason the case was dismissed was the officer didn’t appear in court. At what point can we bring common sense into play? My name is on the shuck. Does that not comply with the spirit of the law?” District Attorney Doug Henderson did not take the opportunity to comment on the findings of missing and incomplete documentation, leaving it to Reavis and two other assistant district attorneys to explain the omissions.
“This should be a reminder to all DAs that it’s a statutory requirement to fill out dismissal forms,” Reavis ultimately said, after reviewing the deficiencies uncovered.
“And it’s best practice to fill out the form completely. Take the time to fill it out.” Reavis indicated he was uncertain of which entity bears responsibility for ensuring that law enforcement agencies receive a copy of the long-form dismissal.
“This office will have to consult with the clerk’s office, and see how that will be handled,” he said. “I imagine that will happen.
I
don’t know where the breakdown is. That will require an examination.”
Guilford County’s dismissal rate for DWIs is below the state average.
Of the 2,899 impaired driving and implied consent cases disposed in
Guilford County in Fiscal Year 2007-2008, data kept by the NC
Administrative Office of the Courts indicates that 559 — or 19.3
percent — were dismissed. Dismissal rates across the Piedmont Triad
range from a low of 10.6 percent in Rockingham County to a high of 26.6
percent in Randolph County.
The assistant district attorney added that the Guilford County office’s rate for completing required documentation appears to be “pretty good.” Assistant District Attorney Tom Carruthers said that given the demands of the job the omissions are understandable.
“You’re in the middle of a motion to continue,” he said. “You’re both filling out the long form and calling the next case. You’re taking ten to twenty seconds to furiously fill it in while the judge is waiting. If you don’t have a record of convictions in front of you, you don’t have time to run upstairs and get it.”
In
other cases, prosecutors’ reasons for dismissal were contradicted by
the recollections of charging officers, a dismissal was made because of
documented fraud and officers apparently dropped the ball. Thomasville
resident Daphine Letisha Bluett, 33, refused to take a Breathalyzer
test after being stopped by Guilford County Sheriff Deputy EM League in
May 2007. Prosecutor Caroline Pemberton dismissed the case later that
year, indicating as her reason that League was not present on his
regularly designated court date and the case had already been continued
four times.
League said he does not recall ever being
subpoenaed or contacted by telephone and called to testify in the case,
and court records back up his story.
“We didn’t receive any
subpoenas or serve any subpoenas on League,” said Major Tom Sheppard of
the Guilford County Sheriff’s Office. “I suppose there’s a chance that
they have been filed, but they’re not in our system, and it would be
very unusual if they had been served and we didn’t have a record of
it.” League said earlier this month that he was surprised to learn that
the case had been dismissed, having assumed that Bluett had pled
guilty. He could think of no reason a representative of the court would not have been able to reach him. “We
can be contacted very easily,” he said. Pemberton did not return a
phone call seeking comment.
Evelio
Perez-Perez, 29, of High Point, is recorded as having blown a 0.22 on a
Breathalyzer — more than twice the legal limit — during a traffic stop
by High Point police Officer CB O’Toole on March 26, 2007. The citation
lists three witnesses, but the only subpoenas included in the file are
for Officer O’Toole. At the time YES! Weekly reviewed the case file, it included no long-form dismissal explaining why the charge was dropped.
Assistant
Chief Derek Stafford, who reviewed the case, said the case was
dismissed almost a year after the stop because civilian witnesses whose
testimony was needed to win a conviction were not subpoenaed by the
clerk’s office.
A second review of the case by YES! Weekly following Stafford’s investigation revealed a Post-It note attached to the citation stating, “Give to LMH to do long form.” YES! Weekly’s review
uncovered eight separate DWI charges dismissed by Leah M. Howell for
defendants who either recorded blood alcohol levels higher than the
legal limit or refused to submit to Breathalyzer tests that were not
documented by a long-form dismissal.
“If it turns out it was
not done, it would be done,” Assistant District Attorney Howard Neumann
said. “I’ll give her the opportunity to rectify all this.” In one case
— that of Miguel Garcia, 23, of Thomasville — the long-form could not
be located during YES! Weekly’s initial review, but
materialized after the matter was brought to Chief Stafford’s
attention. Howell’s statement explains that Garcia’s DWI charge was
dismissed because the defendant was in federal custody awaiting
deportation — an assertion that checks out with records maintained by
the sheriff’s office.
In
a ninth case dismissed by Howell, the long-form dismissal was unsigned
and undated, but the sleeve of the case file bears Howell’s initials.
Guilford County Deputy JS Shaver stopped 32-year-old Jack William Nance
Jr. of Thomasville on Jan. 28, 2007 and charged him with DWI and
driving while license revoked. Nance, whose record includes two
previous DWI convictions in 1992 and 2005, refused to submit to a
Breathalyzer test. Howell’s explanation attests that the state “could
not prove any of the elements, as the charging officer was not present
on his court date, and the state’s motion to continue was denied.”
Deputy
Shaver said in an interview conducted in the presence of Col. Randy
Powers and Major Tom Sheppard that he didn’t recall receiving any
subpoenas. The major later reviewed the case and contradicted his
deputy.
“We did receive a subpoena on Sept. 20, 2007,” he
said. “It was served on Shaver by Officer GL Faust on Oct. 2 and
returned to court on Oct. 3. Officer Shaver has obviously forgotten
about that. He was incorrect when he said he was not served a
subpoena.”
Confronted with the evidence, Shaver conceded,
“Evidently, if Faust served it on me, then it was served on me. No
dispute there.”
A phone message from the deputy about an hour
later would only serve to cloud the circumstances of the case further.
Shaver said he ran a search on Nance’s driver’s license, and the
results indicated that the defendant was dead.
“I don’t know when he
passed away or exactly what happened to him,” Shaver said. “Obviously,
it happened in the city because we don’t have any record of it within
the county as far as a dead body investigation or anything like that.
This guy definitely passed away. I don’t know if he passed away prior
to the court date or whatever, but a possibility exists that that might
have been the situation.”
No other evidence of the defendant’s
death could be found, and some was unearthed suggesting he is, in fact,
alive. Prior to the interview with Shaver a woman identifying herself
as Nance’s mother, who was reached by telephone, promised to pass along
a request for an interview to her son. And Marge Howell, a
communication officer with the Division of Motor Vehicles in Raleigh,
said Nance’s license shows up as active.
Greensboro
police Officer TL Eastridge noted in court records that in early 2007
he observed a vehicle spinning its tires near the intersection of
Randleman and Meadowood roads in south Greensboro, adding that when he
caught up with the vehicle, the driver had red, glassy eyes and reeked
of alcohol.
According to Eastridge, the driver admitted to
having drank four beers, and had given the passenger beer to pour out.
The driver was 18-year-old Bradley A. Thomas of Greensboro, and he
refused to submit to a Breathalyzer test, so Eastridge took him before
Officer CE Leonard to have a blood sample drawn for analysis.
On
June 12, 2007, the State Bureau of Investigation signed off on a
Laboratory Report for Thomas, copies of which were provided to the the
District Attorney’s office, the office of the Clerk of Court, the NC
Department of Health and Human Services and the NC Division of Motor
Vehicles.
A copy of the lab report declaring that Thomas’
blood alcohol concentration was 0.03 was stamped as received by the
clerk’s office on June 18. A second, almost identical form declaring
that Thomas’ blood alcohol concentration was 0.08 was stamped as
received by the clerk’s office on June 20. Two months later, prosecutor
Emily C. Faucher dismissed the charge, stating that there was “no
evidence of impairment. Blood was drawn — alcohol concentration 0.03.
Defendant refused all tests.”
There is no record of Thomas
retaining a defense attorney. In late 2008, Assistant District Attorney
Howard Neumann filed a memo for posterity in the case shuck. It states,
“The SBI lab report in this file (showing BAC of 0.03) is fraudulent.
The true report is in the civil revocation file under this file number
and shows a 0.08.” Neumann later explained, “The SBI got a blood
sample. They analyzed it, sent the report in. Somebody got a copy of
the report from the clerk’s office, altered it and got the altered copy
back in the file.” Neumann’s memo concludes by saying that the SBI
conducted an investigation into the matter at his request, and was
unable to determine who altered the report.
No criminal charges
were filed, and the investigation was closed. “It’s a felony to change
or alter a court document,” said Guilford County Clerk of Court David
Churchill, who also said he had not been previously aware of the
incident.
Carruthers added, “People get disbarred, prosecuted
and put in prison for that type of thing.” Churchill noted that court
documents are public reccords. As such, any member of the public can
come to the counter in the file section, and a clerk will retrieve a
file upon request. The clerks get busy and don’t always have time to
monitor every file being reviewed.
“Normally speaking, it’s my
policy to allow assistant DAs and probation officers to go back there,”
Churchill said. “They don’t need to stand at the counter because they
know what they’re looking for.” Private defense attorneys are also
allowed to go behind the counter because they often talk to clerks
about cases that have been recently closed, but most of the time they
don’t go back to the vault to pull files.
Churchill suggested
it would have been difficult to pin down exactly where the file was
corrupted. “It sits on the prosecutor’s desk,” he said. “It might have
happened in the courtroom.
Every once in awhile someone might
walk out with a court file. Most of the time it’s inadvertent. We call
them up, and they bring it back.” Neither the defendant nor the
arresting officer could be reached for comment.
“I have
absolutely no knowledge about how that document was forged,” prosecutor
Emily C. Faucher said. “I left shoftly after that case was dismissed to
be a stay-at-home mom.” Faucher added, “In my almost three and a half
years I never saw anybody at the DA’s office that was anything less
than professional, hardworking and ethical.
They were great people and hardworking prosecutors.”
Unlike some other cases tried by Guilford County prosecutors, Assistant District Attorney Lisa Johnson-Tonkins left only one field out in a long-form dismissal for DWI defendant Jerri Michelle Barr, a 22year-old Greensboro resident. Prosecutors who voluntarily dismiss DWI charges are required to state what elements of the charge that they believe can be proved. Johnson-
Tonkins
left that field blank. Answering the question of which elements of the
charge she believed could not be proved, she wrote, “All elements due
to officer not arriving in court.”
Johnson-Tonkins said that “depending on what the answer is” the requirement to respond to both questions “can be redundant,” adding, “If you can’t prove any of the elements, you can’t say you could prove any of them in good faith.”
The case should have been a slam-dunk, but the prosecutor was unable to prove it because of confusion about which officer actually handled the case. The citation initially recorded Deputy VL Gaddy as the arresting officer. Deputy JR Marshall later explained that he made the arrest but relinquished the paperwork to Gaddy because he was completing a shift.
Major Sheppard said the case was calendared for Marshall’s scheduled court dates twice in a row, but then inexplicably switched back to one of Gaddy’s scheduled court dates.
Johnson-Tonkins’ characterized the district attorney’s office’s scheduling as “irrelevant.” “We try as an office to accommodate an officer’s schedule,” she said. “When you have two officers on the citation, we have to schedule it for one of their court dates. A subpoena was issued for Deputy Marshall.
They are bound to honor that subpoena, and he was not in court that day. The subpoena trumps the court scheduling.” The citation coupled with a supplemental narrative by Marshall makes a compelling case for conviction. Barr blew a 0.17 on a Breathalyzer, registering at more than twice the legal limit. Marshall’s narrative states that he heard loud, screeching tires from a car traveling in his direction. The screeching stopped abruptly, followed by a bang, and he later noticed a burgundy Isuzu Rodeo. Upon stopping the driver, Marshall noted that Barr had a blackened left eye, which she explained as an injury sustained from playing a golf game on Nintendo. He reported that both here eyes were glassy, and her breath reeked of alcohol. Barr reportedly told Marshall that she had drunk two 12 .oz cans of Budweiser at a friend’s house before the stop, and she performed poorly on a field sobriety test. Marshall acknowledged in an interview that he received a subpoena, but said he was unable to attend the trial because it wasn’t scheduled for one of his court dates, and he was tending to a sick child at home. “I spoke to the DA — it was a female — on the morning of the court date,” he recalled.
“I asked to get another court date, and they were unable to get another continuance.” Faucher added, “I take DWI cases very seriously. My position is, even if I think it’s a close call or we might have some deficiencies, or something’s arguable, I certainly would rather argue it and let a judge decide. Unless we just don’t have anything, we generally will try to proceed with it.” Lt. Robert Elliott of the Guilford County Sheriff’s Office said he believes the prosecutors in the district attorney’s office genuinely want to obtain convictions in DWI cases to make the streets and roadways safer, but added that the volume of cases can be overwhelming.
“We all want drunk drivers off the street,” he said. “We’ve seen the carnage that drunk drivers cause, and we’ve dealt with the family members that have to pick up the pieces. And it’s one of the hardest parts of the job, frankly.”
Defendant: Joseph Bryan Mabe, 22, Greensboro
DWI arrest: Feb. 13, 2007
Charging officer: Officer BM Graves, Greensboro Police Department
Blood alcohol concentration: 0.11
Defense lawyer: None recorded
Prosecutor: William S. Reavis
Reason given for dismissal: “Law enforcement officer did not respond to subpoena, and state motion to continue denied.”
Defendant: Daphine Letisha Bluett, 33, Thomasville
DWI arrest: May 6, 2007
Charging officer: Deputy EM League, Guilford County Sheriff’s Office
Blood alcohol concentration: Refused Breathalyzer
Defense lawyer: Betty J. Brown
Prosecutor: Caroline Pemberton
Reason given for dismissal: “Charging officer is not present on his regularly designated court date.” (Contradicted by statement given by Guilford County Sheriff Deputy EM League)
Defendant: Evelio Perez-Perez, 29, High Point
DWI arrest: March 26, 2007
Charging officer: Officer CB O’Toole, High Point Police Department
Blood alcohol concentration: 0.22
Defense lawyer: Joseph E. Bruner
Prosecutor: Leah M. Howell
Reason given for dismissal: None given
Defendant: Miguel Garcia, 23, Thomasville
DWI arrest: April 28, 2007
Charging officer: Officer RW Watts
Blood alcohol concentration: 0.17
Defense lawyer: Betty J. Brown
Prosecutor: Leah M. Howell
Reason given for dismissal: “The defendant was in f
ederal custody and about to
be deported. The defendant had spent
significant time in jail.”
Defendant: Jack William Nance Jr., 32,
Thomasville
DWI arrest: Jan. 28, 2007
Charging officer: Deputy JS Shaver,
Guilford County Sheriff’s Office
Blood alcohol concentration: Refused
Breathalyzer
Defense lawyer: Rick Hovis
Prosecutor: Leah M. Howell
Reason given for dismissal: “The
state could not prove any of the
elements, as the charging officer was
not present on his court date, and the
state’s motion to continue was denied.”
Defendant: Bradley A. Thomas, 18,
Greensboro
DWI arrest: April 12, 2007
Charging officer: Officer TL Eastridge,
Greensboro Police Department
Blood alcohol concentration: 0.08
Defense lawyer: None recorded
Prosecutor: Emily C. Faucher
Reason given for dismissal: No
evidence of impairment. Blood was drawn
alcohol concentration 0.03. Defendant
refused all tests. (Another assistant
district attorney concluded that the
alcohol concentration was 0.08, and that
someone removed the original SBI report
from the case file, copied it and produced
a fraudulent report showing a false blood
alcohol concentration.)
Defendant: Jerri Michelle Barr, 22,
Greensboro
DWI arrest: Aug. 4, 2007
Charging officer: Deputy JR Marshall,
Guilford County Sheriff’s Office
Blood alcohol concentration: 0.17
Defense lawyer: Robert O’Hale
Prosecutor: Lisa Johnson-Tonkins
Reason for dismissal: “Deputy Marshall
was served with a subpoena personally and
did not appear. Deputy VL Gaddy appeared
but did not have any knowledge of the stop
and therefore the state had no evidence.
Case continued eight times before.” (Marshall
stated in an interview that the trial was
originally scheduled for one of his scheduled
court dates, and then inexplicably switched
over to another officer’s schedule court date.
He recalls that he had to be home to tend
to a sick child on the day of the trial and that
he called Johnson-Tonkins that morning to
request a new date. The judge denied the
state’s request for a continuance.)
Defendant: Michael Ray Smith, 42,
Trinity
DWI arrest: Sept. 23, 2007
Charging officer: Officer TD Thayer,
Archdale Police Department
Blood alcohol concentration: 0.20
Defense lawyer: None recorded
Prosecutor: Leah M. Howell
Reason given for dismissal: None
Defendant: Brian Tacoma Baker, 30,
High Point
DWI arrest: March 10, 2007
Charging officer: Officer MA Rollins,
High Point Police Department
Blood alcohol concentration: 0.11
Defense lawyer: Waived counsel
Prosecutor: Leah M. Howell
Reason given for dismissal: None
Defendant: Edward Nathan Gerringer,
16, Greensboro
DWI arrest: March 8, 2008
Charging officer: Officer JH Shores, High
Point Police Department
Blood alcohol concentration: 0.17
Defense lawyer: Joseph E. Bruner
Prosecutor: Tabatha Holliday
Reason given for dismissal: “Officer has
left the HPPD — not available for trial.”
Defendant: David Carter Ilderton, 40,
High Point
DWI arrest: Sept. 7, 2007
Charging officer: Officer HE Battle, High
Point Police Department
Blood alcohol concentration: 0.20
Defense lawyer: None recorded
Prosecutor: Leah M. Howell
Reason given for dismissal: None
Defendant: Willie Lee Leach, 45, High
Point
DWI arrest: Jan. 1, 2008
Charging officer: Officer JH Shores,
High Point Police Department
Blood alcohol concentration: 0.17
Defense lawyer: Floyd
Prosecutor: Tabatha Holliday
Reason given for dismissal: None
Defendant: Phillip A. McRae, 48,
Yardley, Pa.
DWI arrest: Aug. 1, 2007
Charging officer: Officer BM Hill, High
Point Police Department
Blood alcohol concentration: 0.09
Defense lawyer: Trip Baker
Prosecutor: Leah M. Howell
Reason given for dismissal: None
Defendant: Hafeez Abiodun ojoye, 21,
Baltimore, md.
DWI arrest: July 29, 2007
Charging officer: officer AT Brown,
Greensboro Police Department
Blood alcohol concentration: Refused
Breathalyzer
Defense lawyer: Robert Weckworth
Prosecutor: William s. Reavis
Reason given for dismissal: “law
enforcement officer not present in court
after being subpoenaed.”
Defendant: cristobal Francisco orozco
mejia, 17, High Point
DWI arrest: sept. 7, 2007
Charging officer: officer mA Rollins,
High Point Police Department
Blood alcohol concentration: 0.17
Defense lawyer: None recorded
Prosecutor: leah m. Howell
Reason given for dismissal: None
Defendant: Howard Charleston Robbins, 51, High Point
DWI arrest: Feb. 24, 2007
Charging officer: Officer JH shores, High Point Police Department
Blood alcohol concentration: 0.16
Defense lawyer: None recorded
Prosecutor: Tabatha Holliday
Reason given for dismissal: “Officer has left HPPD
and is not available for trial.”
Defendant: Bobbi Woodbury Riggs, 38, Greensboro
DWI arrest: March 3, 2007
Charging officer: Officer MR Alston, Greensboro Police Department
Blood alcohol concentration: 0.21
Defense lawyer: Charles A. lloyd
Prosecutor: lora C. Cubbage
Reason given for dismissal: “state
made motion to continue;
Judge Hassell denied motion. state dismissed.
No law
enforcement officer present and law enforcement officer was
subpoenaed.”
Defendant: lamone Robinson, 42, High Point
DWI arrest: sept. 8, 2007
Charging officer: Officer He Battle, High Point Police Department
Blood alcohol concentration: ?
Defense lawyer: None listed
Prosecutor: leah M. Howell
Reason given for dismissal: None
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