Pawn-shop tape no issue in theft case, appeals court says

May. 21, 2014 @ 10:11 PM

Police and prosecutors didn’t have any obligation to check a pawn-store security video to find out if the man they accused of stealing jewelry was the person who hocked it, a N.C. Court of Appeals panel says.

Handed down this week, the unanimous ruling reversed visiting Superior Court Judge Allen Baddour’s decision to toss out charges of obtaining property by false pretenses Durham authorities had lodged against Sharkeem J. Foushee, 23.

Baddour terminated the prosecution of Foushee last year on the grounds the Durham Police Department’s failure to check the pawn-store video had denied Foushee’s lawyer evidence she needed for his defense.

But the panel, speaking through appeals Judge Sam Ervin IV, rebuked Baddour, saying he’d based his decision on “a misapprehension” of the state’s evidence-discovery laws and abused his authority.

A line of Court of Appeals and N.C. Supreme Court decisions going back to at least 1994 says police and prosecutors are “not required to conduct an independent investigation to locate evidence favorable to a defendant,” Ervin said, quoting one of the preceding cases.

The panel in effect said that while North Carolina’s “open file” discovery laws require prosecutors to hand over to the defense all the evidence they have, they do not dictate what information police and prosecutors should look for in the first place.

Joining Ervin in the ruling was Chief Judge John C. Martin and Judge Doug McCullough. The panel was bipartisan: Ervin and Martin are Democrats and McCullough is a Republican.

Foushee was accused in July 2012 of stealing 26 rings and a pair of earrings, a collection of jewelry all told worth $17,655. The false-pretenses charges alleged he pawned four of the rings, obtaining $205 after telling store proprietors he owned them.

His trial lawyer, Assistant Public Defender Elizabeth Curran, was interested in the video because two of the victim’s children were present in the house with Foushee when the jewelry went missing.

She told Baddour she thought one of the children, a female, “was involved” in the theft and might’ve been at the pawn shop.

But Police Department detectives never questioned the children, and until Curran asked, had never tried to get from store clerks the video of the transaction.

Curran started asking about the video in August 2012, more than a month before a grand jury indicted Foushee. But police didn’t check with the store until late January or early February 2013.

By then, the store had destroyed the tape because it only keeps its recordings for six months.

Baddour, normally based in Orange and Chatham counties, held that police and prosecutors in failing to question the children or secure the tape had “failed to use reasonable due diligence” in their investigation.

“It is improper for the prosecuting attorney to simply elect not to investigate or otherwise prepare a case for trial,” he said in the February 2013 order he signed to dismiss the charges.

He added the “inactions” of Assistant District Attorney Josephine Kerr, the prosecutor in the case, might’ve been “an abdication of her responsibility to administer justice.”

The phrase alluded to a N.C. State Bar ethics rule that says prosecutors are to act as “a minister of justice,” putting right above the mere desire to obtain a conviction via an adversarial proceeding.

The bar’s strictures, however, are regulatory and can be trumped by statute or case law.

Tuesday’s Court of Appeals ruling adopted the line argued by lawyers from state Attorney General Roy Cooper’s staff, who in their brief noted that everyone involved conceded prosecutors had given Curran all that was in their file.

“The state is not required … to provide a defendant with evidence that it does not possess, nor is the state required to investigate or interview witnesses for the defendant,” they said.

But that leaves an opening for police and prosecutors to game the system, Foushee’s appellate lawyers said.

They noted that Curran had told Baddour the prosecution’s actions seemed part of “an intentional strategy to avoid” chasing evidence that could damage its case.

The various filings indicate the victim of the theft had vouched for her children, prompting detectives to focus on Foushee.

At age 23, Foushee already has a criminal record that includes felony convictions for robbery, breaking and entering, larceny, forgery and possession of stolen goods.

Foushee’s lawyers can appeal Tuesday’s decision to the state Supreme Court. But because the Court of Appeals panel was unanimous, the high court doesn’t have to take the case.

Ervin is running in this fall’s general election for a seat on the Supreme Court. Opposing him in the officially nonpartisan race is fellow Court of Appeals Judge Robert N. Hunter Jr., a Republican.