State v. Banks , 125 N.C. App. 681 ( 1997 )

482 S.E.2d 41 (1997)

STATE of North Carolina
v.
Rufus Gene BANKS, Jr.

No. COA96-646.

Court of Appeals of North Carolina.

March 18, 1997.

Attorney General Michael F. Easley by Assistant Attorney General Sue Y. Little, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.

ARNOLD, Chief Judge.

Defendant first argues that his conviction should be vacated and the charges dismissed because the police department's destruction of the rape kit violated his constitutional and statutory rights to a fair trial. This argument fails.

Defendant's argument is based on the theory that the victim fabricated the story that he raped her. He contends therefore, that DNA testing could have exonerated him by excluding him as the source of semen collected by the hospital nurse and placed in the destroyed rape kit.

Without question, the State violated the rules concerning the safekeeping of potential evidence in this case. Whenever a law enforcement officer seizes potential evidence, he must "safely keep the property under the direction of the court ... as long as necessary to assure that the property ... may be used as evidence [at] trial." N.C. Gen.Stat. § 15-11.1(a) (1983 & Supp.1996). "A violation of this section does not, however, mandate dismissal of the charges against defendant." State v. Mlo, 335 N.C. 353, 372, 440 S.E.2d 98, 108, cert. denied, 512 U.S. 1224, 114 S. Ct. 2716, 129 L. Ed. 2d 841 (1994).

In considering the effect, if any, of the destruction of the rape kit, focus must be "on the question of whether defendant was thereby deprived of his rights to due process under the Fourteenth Amendment to the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution." Id.

The constitutional duty imposed on the State to preserve evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense." California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984). The evidence must (1) possess an exculpatory value that was apparent before the evidence was destroyed and (2) be of such character that defendant would be unable to obtain comparable evidence. Id. at 489, 104 S. Ct. at 2534, 81 L.Ed.2d at 422.

Evidence presented at the hearing on defendant's motions to dismiss and for sanctions indicates that the exculpatory value of possible DNA testing was highly speculative. At the pre-trial hearing, the state serologist testified that although vaginal swabs and slides taken from the victim established the presence of semen, the results of standard laboratory testing were inadequate to exclude defendant as a suspect. She also testified that in her opinion, the swabs contained insufficient seminal material for effective DNA analysis.

Although on cross examination the state serologist conceded that DNA testing "could have been" conducted on the seminal material, her overall testimony indicated that the exculpatory value of any testing would be meaningless.

Even if the evidence contained in the rape kit were material to defendant's case, in the absence of a showing of "bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law" under either the Fourteenth Amendment of the United States Constitution or Article I, Sections 19 and 23 of our State Constitution. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281, 289 (1988), rehr'g denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989); Mlo 335 N.C. at 373, 440 S.E.2d at 108; State v. Graham, 118 N.C.App. 231, 236, 454 S.E.2d 878, 881, cert. denied, 340 N.C. 262, 456 S.E.2d 834 (1995).

For purposes of due process, the presence or absence of bad faith by the police turns on whether the police had knowledge of the exculpatory value before the evidence was destroyed. Youngblood, 488 U.S. at 56, 109 S. Ct. at 336, 102 L.Ed.2d at 288. In light of the results of the laboratory testing conducted on the victim's rape kit, there is no reason to conclude the police believed the rape kit had any exculpatory value at the time of its destruction. A careful examination of the record supports the finding of the trial judge that the rape kit was accidently destroyed.

Defendant's remaining assignments of error take exception to statements made during the prosecutor's closing arguments. He claims that the prosecutor made indirect references to his decision not to testify.

Counsel are given wide latitude in making arguments to the jury. State v. Roberts, 243 N.C. 619, 621, 91 S.E.2d 589, 591 (1956). "While it is true that the prosecution may not comment on defendant's failure to take the stand, ``the defendant's failure to produce exculpatory evidence or to contradict evidence presented by the State may properly be brought to the jury's attention by the State in its closing argument.'" State v. Thompson, 110 N.C.App. 217, 225, 429 S.E.2d 590, 594-5 (1993) (quoting State v. Jordan, 305 N.C. 274, 287 S.E.2d 827 (1982)).

During closing argument, the prosecutor suggested that defense counsel might argue that the State did not call certain witnesses because they would be harmful to the State's case. The prosecutor informed the jury that defendant had the same subpoena power as the State to call witnesses, and that they could infer from defendant's failure to call additional witnesses that such individuals would have nothing to add. The prosecution's statements were directed at defendant's failure to produce rebuttal evidence, not at his failure to testify on his own behalf.

We have examined defendant's remaining assignments of error and find

No error.

JOHN C. MARTIN and TIMMONSGOODSON, JJ., concur.