The state Court of Appeals today found no error in the prosecution by Durham District Attorney Tracey Cline of a man convicted last year in a 2006 contract killing just north of downtown Durham.
Lawyers for the defendant, Angel Richardson, had tried to overturn Cline's prosecution on appeal, arguing that a statement revealing that someone else claimed the killing had surfaced only during the trial -- but should have been provided sooner to allow for proper investigation. His appeal had argued that the only remedy when such key evidence was "suppressed" was a new trial.
A three-judge panel of the appeals court disagreed, saying that the trial judge allowed enough time after the statement surfaced for the defense to make use of it.
The judges wrote that prosecutors have a broad duty to disclose favorable evidence to a defendant prior to trial, but the duty can be satisfied by "the disclosure of evidence at trial, so long as disclosure is made in time for the defendant to make effective use of the evidence."
The judges ruled that the "late disclosure" of the statement, given by a gang member to a Durham police officer, did not undermine confidence in the verdict and that there was "substantial evidence" of guilt.
The decision is unpublished, meaning it does not carry the weight of setting a precedent. It was written by Robert C. Hunter, who was joined by Sanford Steelman and J. Douglas McCullough.
Richardson’s conviction in the murder of Marlon Rand will stand. Cline has said the killing was part of a larger dispute between rival gang members.
Cline could not be reached immediately for comment, but she has previously said she did not believe she did anything wrong in handling the case and had absolute certainty in the verdict.
The appeal by Richardson had not dealt with a separate statement, from a different witness, that was also suppressed in the course of the prosecution by Cline -- but was produced well before the trial began.
That witness statement indicated there was a possible other shooter, and it had formed the basis of the defense theory at trial. In turning it over to the defense after the witness had died, Cline told a judge that she was "mistaken" in not realizing information in it was required to be turned over sooner than it was. Defense lawyers argued unsuccessfully for a dismissal because they could not interview the witness.
The Richardson case is one of several in which Cline's prosecutions have been under scrutiny, though specific conduct by Cline in the Richardson case was not as major of an issue as in other cases that have brought intense attention to Cline this year.
At one point in the Richardson trial, then-Superior Court Judge Cressie Thigpen Jr. specifically noted that it wasn't Cline's fault that the gang member's statement didn't come out until trial. "I do not think that the DA's office has done anything incorrect in this matter," he said. "I want that clearly understood."
And it had always been clear why a jury had convicted Richardson: His signature is on every sheet of a detailed, five-page confession that was written out by a police officer.
The appeals judges took note of the confession: "Defendant's confession corroborated many details of the State's evidence," the judges ruled.
But lawyers for Richardson said the late production of the gang member’s statement would have led to a completely different trial and outcome.
"The prejudice caused by the year-long suppression of the (gang member’s) statement from the end of 2008 until the end of the second week of trial could not be cured without additional time and a new trial," Richardson’s appeal said.
The appeals judges did not agree.
The judges said that the defendant’s lawyers did not demonstrate “a reasonable probability that had he been provided the (gang member’s) statement prior to trial that the jury would have reached a different verdict.”
