Police Chief Jose Lopez will likely not have to appear at the trial of Carlos Antonio Riley after a judge agreed the Durham County Sheriff’s Office was justified in not delivering a subpoena because it had expired.
The defense team for Riley, 24, filed a subpoena Friday morning asking Lopez to appear in court at 10 a.m. Monday with records on Officer Kelly Stewart’s training and warning tickets.
Lopez never appeared, however, as a police spokesman said he wasn’t properly served.
Riley is charged with robbery with a dangerous weapon, assault on a law enforcement officer inflicting serious injury and other crimes following a Dec. 18, 2012, traffic stop in which Stewart, 29, was shot in his right thigh.
Stewart testified last week that he tried to pull Riley out of the car during a traffic stop, but jumped into the front passenger seat after Riley tried to drive away. During a struggle, Stewart lost his badge, personal cell phone, handcuffs and gun, which Riley used to shoot him in his right thigh, Stewart said.
The defense maintains 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 during a struggle.
On Tuesday morning, a court representative said the Sheriff’s Office had indicated it didn’t deliver the subpoena to Lopez because it had expired.
Defense attorney Alex Charns said, typically, when public defenders serve the Police Department, they deliver it directly to a sergeant. That was the course Charns said they followed Friday morning. After Lopez didn’t appear, the defense team sent another subpoena through the Sheriff’s Office.
Charns argued Tuesday that while the date on subpoena said 10 a.m. Monday, it also stated “week to week until completed.”
The question, Superior Court Judge James Roberson said Tuesday morning, was whether it was reasonable for the Sheriff’s Office to not serve the subpoena if the time of 10 a.m. Monday had passed.
“I am going to find that it is not unreasonable,” Roberson said.
Roberson said Charns could issue another subpoena, possibly for Wednesday. Charns indicated he would not but wanted to put his concerns on the record for review if the case is appealed.
Charns also indicated Tuesday that the defense will not present evidence in the case, which means closing arguments will likely start Wednesday.