Police Chief Jose Lopez was subpoenaed but did not appear in court Monday in the trial of a man accused of shooting one of his officers.
The defense team for Carlos Antonio Riley, 24, said they filed a subpoena Friday morning asking Lopez to appear in court at 10 a.m. with requested records.
But Durham Police Department spokesman Wil Glenn wrote in an email that Lopez “wasn’t properly served.”
As the clock ticked toward 10 a.m., defense attorney Alex Charns asked Superior Court Judge James Roberson whether he could step outside the courtroom to see if Lopez was walking down the hall.
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“Sure,” Roberson said.
Charns walked outside the court and then checked his email to see whether some response had been sent.
The discussion came on the sixth day of testimony. Prosecutors contend Riley tried to drive away during a traffic stop Dec. 18, 2012, outside Forest Pointe Apartments. Officer Kelly Stewart, 29, testified last week that he tried to pull Riley out of the car, but jumped into the front passenger seat after Riley tried to drive away. During a struggle, Stewart lost his badge, personal cell phone and handcuffs and was shot by Riley in his right thigh, Stewart said.
The defense argues that Riley was pulled over because he was black and that Stewart, who is also black, didn’t follow proper police procedure, attempted to execute an illegal search and pulled the trigger resulting in the shot that shattered his right thigh.
In the past, when public defenders served the Police Department, they delivered it directly to a sergeant, Charns said Monday morning.
But Glenn said delivering a subpoena to the sergeant does not constitute serving the chief.
“Chief Lopez has not been properly served with any type of order or subpoena to appear,” he wrote in an email around 3 p.m. “He’s simply not received anything.”
The defense team asked a sheriff’s deputy to serve the subpoena.
In court, Charns said he had requested that Lopez appear with records relating to Stewart’s training and his warning tickets a year before the shooting.
Assistant District Attorney Stormy Ellis argued that the defense didn’t give enough notice for the subpoena, but the judge said they would discuss the merits of the request after Lopez responded.
Charns said he was concerned Lopez “might ignore” the subpoena because he represented the family of Jesus Huerta, who died from a self-inflicted gunshot in November 2013 while handcuffed in the back of a patrol car. Throughout the trial, Charns has argued improper conduct by police and prosecutors and unsuccessfully argued several times for a mistrial. Some residents have held up the Riley case as an example of racial profiling, police abuse and illegal searches.
While the court awaited a response from Lopez, Cpl. Thomas McMaster, the lead investigator in the case, testified about the multiple police searches that followed the shooting.
Officers found the maroon car Riley was driving during the traffic stop in an apartment complex near New Castle Drive. Officers found and arrested Riley in a Honda Accord with two others in front of his mother’s residence on Rosetta Drive. A maintenance man found Stewart’s badge and handcuffs in a trashcan near the pool area of another apartment complex on Wyldewood Road. A cyclist found Stewart’s personal cell phone on Stadium Drive, but Stewart’s gun was never recovered.
Prosecutors rested their case Monday. The trial resumes at 9:30 a.m. Tuesday.