{ "id": 11871194, "name": "STATE OF NORTH CAROLINA v. RUFUS GENE BANKS, JR.", "name_abbreviation": "State v. Banks", "decision_date": "1997-03-18", "docket_number": "No. COA96-646", "first_page": "681", "last_page": "685", "citations": [ { "type": "official", "cite": "125 N.C. App. 681" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "287 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567535 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0274-01" ] }, { "cite": "429 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "594-5", "parenthetical": "quoting State v. Jordan, 305 N.C. 274, 287 S.E.2d 827 (1982)" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525204 ], "year": 1993, "pin_cites": [ { "page": "225", "parenthetical": "quoting State v. Jordan, 305 N.C. 274, 287 S.E.2d 827 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0217-01" ] }, { "cite": "91 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "243 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626356 ], "year": 1956, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0619-01" ] }, { "cite": "456 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790210, 790099, 790235, 790109, 790206 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0262-05", "/nc/340/0262-04", "/nc/340/0262-01", "/nc/340/0262-02", "/nc/340/0262-03" ] }, { "cite": "454 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917430 ], "year": 1995, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0231-01" ] }, { "cite": "102 L. Ed. 2d 1007", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "488 U.S. 1051", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495052 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/488/1051-01" ] }, { "cite": "488 U.S. 51", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1495598 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "58" }, { "page": "289" }, { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/us/488/0051-01" ] }, { "cite": "467 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202648 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "488" }, { "page": "422" }, { "page": "489" }, { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/us/467/0479-01" ] }, { "cite": "129 L. Ed. 2d 841", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "440 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "108" }, { "page": "108" } ], "opinion_index": 0 }, { "cite": "335 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2528296 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "372" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0353-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-11.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 558, "char_count": 9337, "ocr_confidence": 0.751, "pagerank": { "raw": 3.6856254361847664e-07, "percentile": 0.8916355741203444 }, "sha256": "62ded80a22fc00cf7c896b9393df78f90c5835078ec93e8beeec583603c469e7", "simhash": "1:41f7c036148eee7f", "word_count": 1534 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, JOHN C., and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RUFUS GENE BANKS, JR." ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nDefendant first argues that his conviction should be vacated and the charges dismissed because the police department\u2019s destruction of the rape kit violated his constitutional and statutory rights to a fair trial. This argument fails.\nDefendant\u2019s 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.\nWithout 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 \u201csafely 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.\u201d N.C. Gen. Stat. \u00a7 15-11.1(a) (1983 & Supp. 1996). \u201cA violation of this section does not, however, mandate dismissal of the charges against defendant.\u201d State v. Mlo, 335 N.C. 353, 372, 440 S.E.2d 98, 108, cert. denied, - U.S. -, 129 L. Ed. 2d 841 (1994).\nIn considering the effect, if any, of the destruction of the rape kit, focus must be \u201con 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.\u201d Id.\nThe constitutional duty imposed on the State to preserve evidence is \u201climited to evidence that might be expected to play a significant role in the suspect\u2019s defense.\u201d California v. Trombetta, 467 U.S. 479, 488, 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, 81 L. Ed. 2d at 422.\nEvidence presented at the hearing on defendant\u2019s 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.\nAlthough on cross examination the state serologist conceded that DNA testing \u201ccould have been\u201d conducted on the seminal material, her overall testimony indicated that the exculpatory value of any testing would be meaningless.\nEven if the evidence contained in the rape kit were material to defendant\u2019s case, in the absence of a showing of \u201cbad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law\u201d 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, 102 L. E. 2d 281, 289 (1988), rehr\u2019g denied, 488 U.S. 1051, 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).\nFor 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, 102 L. Ed. 2d at 288. In light of the results of the laboratory testing conducted on the victim\u2019s 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 accidentally destroyed.\nDefendant\u2019s remaining assignments of error take exception to statements made during the prosecutor\u2019s closing arguments. He claims that the prosecutor made indirect references to his decision not to testify.\nCounsel 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). \u201cWhile it is true that the prosecution may not comment on defendant\u2019s failure to take the stand, \u2018the defendant\u2019s failure to produce exculpatory evidence or to contradict evidence presented by the State may properly be brought to the jury\u2019s attention by the State in its closing argument.\u2019 \u201d 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)).\nDuring 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\u2019s 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\u2019s failure to call additional witnesses that such individuals would have nothing to add. The prosecution\u2019s statements were directed at defendant\u2019s failure to produce rebuttal evidence, not at his failure to testify on his own behalf.\nWe have examined defendant\u2019s remaining assignments of error and find\nNo error.\nJudges MARTIN, JOHN C., and TIMMONS-GOODSON concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RUFUS GENE BANKS, JR.\nNo. COA96-646\n(Filed 18 March 1997)\n1. Evidence and Witnesses \u00a7 1426 (NCI4th)\u2014 destruction of rape kit \u2014 not due process violation\nA rape defendant\u2019s due process rights were not violated by the police department\u2019s destruction of a rape kit where the exculpatory value of DNA testing of seminal material in the kit was highly speculative; there was no reason to conclude that the police believed the rape kit had any exculpatory value at the time of the destruction; and the evidence supported the trial judge\u2019s finding that the rape kit was accidentally destroyed. N.C.G.S. \u00a7 15-11.1(a); U.S. Const, amend. XIV; N.C. Const, art. I, \u00a7\u00a7 19, 23.\nAm Jur 2d, Evidence \u00a7 244.\n2. Criminal Law \u00a7 433 (NCI4th Rev.)\u2014 closing arguments\u2014 prosecutor\u2019s statements \u2014 defendant\u2019s decision not to testify\nThe prosecutor\u2019s statements to the jury that defendant had the same subpoena powers as the State to call additional witnesses, and that they could infer from defendant\u2019s failure to call witnesses that such individuals would have nothing to add was directed at defendant\u2019s failure to produce rebuttal evidence and did not constitute an indirect reference to defendant\u2019s decision not to testify on his own behalf.\nAm Jur 2d, Trial \u00a7\u00a7 590-604.\nAppeal by defendant from judgment entered 11 September 1995 by Judge Marcus L. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 February 1997.\nThe State presented uncontroverted evidence tending to show that in or about January 1993, defendant, age twenty-four, and the victim, age seventeen, began a dating relationship that lasted approximately three months. At trial, the victim testified that she ended the relationship with defendant because he became possessive and frightened her.\nOn 9 July 1993, the victim was alone in her Charlotte apartment when she heard a knock at her back door. Believing it was her sister, she opened the door, and defendant forced his way into the kitchen. Defendant threatened the victim, they struggled, and he raped her.\nThe victim told defendant to leave, and when he refused she tried to reach for the phone to call the police. When defendant threatened to shoot her, she hit him over the head with an iron. Defendant grabbed the iron and struck the victim and they continued to struggle. The victim threatened defendant with a knife, and he pulled out a gun and again threatened to shoot her. Defendant pointed the gun at the victim\u2019s head and pulled the trigger. The victim testified that the gun clicked, but did not fire, and then defendant left the apartment.\nLater the same day, defendant telephoned the victim, and after learning that she planned to go to the hospital, he threatened her again. The victim went to the hospital, was examined by a doctor, and gave her account of the incident to a nurse. The nurse collected evidence from the victim\u2019s body, prepared a standard rape kit, and delivered it to the police. Prior to defendant\u2019s arrest, the police inadvertently destroyed the rape kit.\nOn 12 July 1995, defendant filed a motion to dismiss and for sanctions against the State for failure to properly preserve the rape kit as potentially useful evidence. On 16 August 1995, Judge Claude S. Sitton entered an order imposing sanctions and prohibiting the State from calling as a witness the serologist who conducted laboratory testing on the contents of the rape kit. The court also stripped the State of two peremptory challenges and allowed defendant the right to final argument before the jury, regardless of whether he offered evidence in his defense.\nDefendant presented no evidence at trial, he was found guilty by a jury of second degree rape, and sentenced to twenty-two years imprisonment. Defendant appeals.\nAttorney General Michael F. Easley, by Assistant Attorney General Sue Y Little, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant appellant." }, "file_name": "0681-01", "first_page_order": 719, "last_page_order": 723 }