{ "id": 4150837, "name": "STATE OF NORTH CAROLINA v. THEODORE JERRY WILLIAMS", "name_abbreviation": "State v. Williams", "decision_date": "2008-12-12", "docket_number": "No. 256A08", "first_page": "628", "last_page": "640", "citations": [ { "type": "official", "cite": "362 N.C. 628" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "660 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640851 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/se2d/660/0189-01" ] }, { "cite": "190 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157783 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/nc-app/190/0301-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "year": 1963, "opinion_index": -1, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "650 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639385 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/650/0607-01" ] }, { "cite": "660 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640851 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "190" }, { "page": "196-97", "parenthetical": "Tyson, J., dissenting" }, { "page": "193", "parenthetical": "brackets in original" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0189-01" ] }, { "cite": "295 U.S. 78", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 333750 ], "year": 1935, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/us/295/0078-01" ] }, { "cite": "62 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "233 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597600 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/233/0057-01" ] }, { "cite": "508 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "286", "parenthetical": "citing Alpine Motors Corp. v. Hagwood, 233 N.C. 57, 62 S.E.2d 518 (1950)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571662 ], "year": 1998, "pin_cites": [ { "page": "497", "parenthetical": "citing Alpine Motors Corp. v. Hagwood, 233 N.C. 57, 62 S.E.2d 518 (1950)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0483-01" ] }, { "cite": "186 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8155594 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/186/0233-01" ] }, { "cite": "220 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "290", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "pin_cites": [ { "page": "710", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "235 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "293 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561617 ], "year": 1977, "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0105-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "642" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "457 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "339 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557374 ], "year": 1994, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0622-01" ] }, { "cite": "427 U.S. 97", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174831 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/427/0097-01" ] }, { "cite": "514 U.S. 419", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1339057 ], "weight": 9, "year": 1995, "pin_cites": [ { "page": "434" }, { "page": "434", "parenthetical": "citation omitted" }, { "page": "434" }, { "page": "435" }, { "page": "434" }, { "page": "438" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/us/514/0419-01" ] }, { "cite": "573 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "149", "parenthetical": "quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)" }, { "page": "149" } ], "opinion_index": 0 }, { "cite": "356 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511491 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "517", "parenthetical": "quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)" }, { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0490-01" ] }, { "cite": "473 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205331 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "676" }, { "page": "678" }, { "page": "678" }, { "page": "675", "parenthetical": "The prosecutor's duty is \"to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.\"" } ], "opinion_index": 0, "case_paths": [ "/us/473/0667-01" ] }, { "cite": "178 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "465-66" }, { "page": "555" } ], "opinion_index": 0 }, { "cite": "277 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566758 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "552-54" }, { "page": "550, 556" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0547-01" ] }, { "cite": "243 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "370" } ], "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "576 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "319", "parenthetical": "citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511442 ], "year": 2003, "pin_cites": [ { "page": "6", "parenthetical": "citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0642-01" ] }, { "cite": "265 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "300 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560050 ], "year": 1980, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0186-01" ] }, { "cite": "597 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "721", "parenthetical": "citing Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980)" } ], "opinion_index": 0 }, { "cite": "358 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987016 ], "year": 2004, "pin_cites": [ { "page": "517", "parenthetical": "citing Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0512-01" ] }, { "cite": "403 U.S. 934", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12040163, 12039717, 12039973, 12040072, 12039913, 12040328, 12040209, 12040114, 12039795, 12040275, 12039857, 12039638, 12040023 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0934-10", "/us/403/0934-02", "/us/403/0934-06", "/us/403/0934-08", "/us/403/0934-05", "/us/403/0934-13", "/us/403/0934-11", "/us/403/0934-09", "/us/403/0934-03", "/us/403/0934-12", "/us/403/0934-04", "/us/403/0934-01", "/us/403/0934-07" ] }, { "cite": "178 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "278 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559596 ], "year": 1971, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0036-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "619", "parenthetical": "citations omitted" }, { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "134", "parenthetical": "citations omitted" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "190 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157783 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc-app/190/0301-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 6, "year": 1963, "pin_cites": [ { "page": "87" }, { "page": "87-88" }, { "page": "87" }, { "page": "87", "parenthetical": "quoting an inscription on the walls of the United States Department of Justice building" } ], "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] } ], "analysis": { "cardinality": 1191, "char_count": 32001, "ocr_confidence": 0.74, "pagerank": { "raw": 1.5983269671213427e-06, "percentile": 0.9926294930708316 }, "sha256": "22927dac47b789903656c7571376a31caf30e8b0a1bbea8a909a5823e652e6e5", "simhash": "1:ab62b5e2466298fa", "word_count": 5189 }, "last_updated": "2023-07-14T21:47:03.529976+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. THEODORE JERRY WILLIAMS" ], "opinions": [ { "text": "BRADY, Justice.\nThis case requires us to decide whether dismissal of a criminal charge against defendant was appropriate under N.C.G.S. \u00a7 15A-954(a)(4). In a pretrial hearing, the State admitted to the existence, possession, and destruction of material evidence favorable to defendant and acknowledged that it was impossible to produce the evidence at that time or, by implication, at any future trial. Based on these circumstances, we conclude that the State flagrantly violated defendant\u2019s constitutional rights and irreparably prejudiced the preparation of his defense. Accordingly, we find the requirements of N.C.G.S. \u00a7 15A-954(a)(4) satisfied and affirm the Court of Appeals.\nBACKGROUND\nTheodore Jerry Williams (defendant) was arrested and placed in the Stanly County Detention Center on 17 November 2003 on charges unrelated to the present matter. During February and March 2004 and while in custody in Stanly County, defendant initiated actions in various courts naming an assistant district attorney for Stanly County, the Stanly County Sheriff, and the Stanly County Commissioners for alleged civil rights violations.\nAfter filing these actions, defendant was transferred to the Union County Jail on 19 April 2004. Even though defendant made numerous requests, he received neither the paperwork authorizing nor an explanation for his transfer. Less than twenty-four hours after his arrival at the Union County Jail, defendant was charged with misdemeanor assault on a government official at that facility. The State alleged that defendant punched Union County Sheriff\u2019s Deputy Brad Moseley when Deputy Moseley attempted to remove defendant from a holding cell. Defendant denied the allegation and testified that in the early morning hours of 20 April 2004, he was maced and beaten by multiple officers at the Union County Jail, where he sustained severe injuries, including a broken arm. Defendant testified he was then transferred back to the Stanly County Detention Center midday on 20 April 2004, and photographs were taken of him at that time for reprocessing purposes. The photographs showed the bruises and wounds defendant sustained at the Union County Jail.\nDefendant further testified that after the events of 20 April 2004 and while he was being held in Stanly County, two individuals, one of whom was defendant\u2019s attorney, informed defendant of a poster they had seen on a wall in the offices of the District Attorney for the Twentieth Prosecutorial District, which included Stanly and Union Counties at the time. The poster contained two photographs of defendant. The first depicted defendant without any injuries as he appeared when processed into the Stanly County Detention Center on 17 November 2003, with a caption stating: \u201cBefore he sued the D.A.\u2019s office.\u201d The second photograph depicted the injured defendant as he appeared when processed back into the Stanly County Detention Center on 20 April 2004, with a caption stating: \u201cAfter he sued the D.A.\u2019s office.\u201d Defendant testified that after viewing the poster, his attorney began making requests and serving subpoenas to obtain the poster and the photographs used to create the poster. However, defendant never received any of the requested items. At a pretrial hearing in Stanly County on 11 July 2005 concerning charges in that jurisdiction, Assistant District Attorney Stephen Higdon (ADA Higdon) admitted to the existence of the poster, its removal and destruction, and the impossibility of producing it or the original photographs that appeared on the poster.\nAfter defendant was indicted for having attained habitual felon status, the Union County Grand Jury returned a superseding true bill of indictment on 30 October 2006, charging defendant with felony assault on a government officer or employee. Proceeding pro se, on 28 November 2006, defendant filed a Motion to Dismiss for Prosecutorial Misconduct and Brady Violation, in accordance with N.C.G.S. \u00a7 15A-954. A hearing was held on the motion on 18 January 2007. Defendant testified that he helped fill out and serve the subpoenas and that the poster existed at the time the initial subpoenas were served. The State declined to cross-examine or otherwise rebut defendant\u2019s evidence and presented no evidence of its own. Instead, the State opposed defendant\u2019s motion solely on legal grounds.\nThe salient portions of the trial judge\u2019s findings of fact from the hearing include the following:\n4) That on April the 19th of 2004 the Defendant was transported to Union County....\n6) The Defendant alleges that he was assaulted by various officers and members of the Union County Jail. . . . That on April the 20th, 2004, the Defendant was photographed by the staff of the Stanly County Jail....\n7) That the photograph of the Defendant made on April 20th, 2004, showed the Defendant\u2019s condition during a time relevant to the subject prosecution.\n8) That in May of 2004, Detention Officer Becky Green of the Stanly County Sheriff\u2019s Office went on an unrelated matter to the Stanly County office of the District Attorney for the 20th Prosecutorial District, that while in the office Ms. Green saw a poster which contained two photographs of the Defendant. One photograph . . . was made when the Defendant was processed into the jail on November 17th of 2003, with a caption saying, in quotation, \u201cBefore suing the District Attorney\u2019s office,\u201d closed quotation, and a second photograph . . . that was made when the Defendant was processed back into the Stanly County Jail between April 19th and 20th of 2004, which showed the Defendant\u2019s injuries and was captioned, quotation, \u201cAfter he sued the District Attorney\u2019s office\u201d ....\n9) That during proceedings regarding this case and upon the request of the Defendant for discovery and disclosure that [ADA] Higdon stated in open court that the poster had been destroyed and was not available, and that the subject photographs originally taken at the Stanly County Jail were not available as well.\nBased on these findings of fact, the trial judge concluded the following as a matter of law:\n1) That the photographs of the Defendant made during his processing into the Stanly County Jail on November 17th of 2003 and again between April the 19th and 20th of 2004 are relevant and material to the defense of the subject prosecution.\n2) That the poster of the photographs described herein was willfully destroyed and not made available to the Defendant although the Defendant made a valid and timely request for same.\n. 3) That the original photographs described herein have not been made available and as represented by the State of North Carolina are unavailable to the Defendant, even though implicitly requested by the Defendant.\n4) That due to the destruction or failure of the State to provide this evidence, which is material and may be exculpatory in nature, the Defendant\u2019s rights pursuant to the Constitution of the United States and the North Carolina Constitution have been flagrantly violated and there is such irreparable prejudice to the Defendant\u2019s preparation of his case that there is no remedy but to dismiss the prosecution.\nThe State timely appealed to the Court of Appeals, where a majority affirmed the trial court\u2019s ruling. State v. Williams, 190 N.C. App. 301,-, 660 S.E.2d 189, 190 (2008). The dissenting judge at the Court of Appeals argued that finding of fact number nine was not supported by competent evidence and that the trial judge\u2019s conclusions of law were erroneous. Id. at-, 660 S.E.2d at 196-97 (Tyson, J., dissenting). The State timely appealed to this Court based on the dissent.\nANALYSIS\nIn reviewing a trial judge\u2019s findings of fact, we are \u201cstrictly limited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether .those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). Even if \u201cevidence is conflicting,\u201d the trial judge is in the best position to \u201cresolve the conflict.\u201d State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601, cert. denied, 403 U.S. 934 (1971). The decision that defendant has met the statutory requirements of N.C.G.S. \u00a7 15A-954(a)(4) and is entitled to a dismissal of the charge against him is a conclusion of law. \u201cConclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.\u201d Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004) (citing Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980)). \u201cUnder a de novo review, the court considers the matter anew and freely substitutes its own judgment\u201d for that of the lower tribunal. In re Appeal of The Greens of Pine Glen Ltd. P\u2019ship, 356 N.C. 642, 6.47, 576 S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)).\nI. FINDING OF FACT NUMBER NINE IS SUPPORTED BY COMPETENT EVIDENCE\nThe trial judge\u2019s order does not falter on finding of fact number nine. That finding of fact states:\nThat during proceedings regarding this case and upon the request of the Defendant for discovery and disclosure that [ADA] Higdon stated in open court that the poster had been destroyed and was not available, and that the subject photographs originally taken at the Stanly County Jail were not available as well.\nThe trial judge found defendant\u2019s testimony to be credible. Moreover, defendant\u2019s evidence was uncontroverted in that the State offered no evidence and no witnesses at the hearing on 18 January 2007; the State made only a legal argument against the motion to dismiss. Although much of the evidence was ambiguous and the sequence of events was never entirely clarified, the trial court\u2019s consideration is limited to the evidence actually presented and matters as to which the court takes judicial notice. Here, an examination of the record shows that the trial judge had several pieces of competent evidence before him to support finding of fact number nine. Defendant testified that his attorney began requesting copies of the poster and pictures after first viewing the poster. Without objection by the State, defendant stated that the poster existed when subpoenas were initially served. One subpoena included in the record was issued to Assistant District Attorneys Nicholas Vlahos and Stephen Higdon dated 31 May 2005. The subpoena ordered ADAs Vlahos and Higdon to appear and testify on 6 June 2005 and to produce the poster or the computer hard drive used to create the poster. After this subpoena was served, a pretrial hearing was conducted on 11 July 2005 in Stanly County concerning several cases against defendant in that jurisdiction. The transcript from that hearing was admitted into evidence before the trial judge in the instant matter. During the 11 July 2005 hearing, ADA Higdon confirmed that the poster did exist, but that it had been \u201cremoved\u201d and \u201cdestroyed.\u201d ADA Higdon made this admission in response to defendant\u2019s request for the evidence. The State offered no evidence that the poster was already destroyed before defendant requested it.\nAs to the unavailability of the subject photographs, defendant clearly testified that he did not have the photographs used in the poster and that he never personally saw the poster. Conversely, the State contended for the first time on appeal that defendant and his former counsel admitted to possessing copies of the photographs used in the poster.\nOn this point, the transcripts reflect that defendant\u2019s former counsel stated he had a Stanly County Sheriff\u2019s Office booking report with defendant\u2019s picture on it. This booking report, however, was never offered as evidence by either side, and furthermore, a former officer of the Stanly County Sheriff\u2019s Office, Becky Green, saw the poster and testified that it was \u201clike a mug shot from the jail\u201d but \u201clarger than what the mug shots are.\u201d Ms. Green testified that each photograph on the poster was about four by six inches in size. Additionally, the State highlights that defendant appears to have possessed a side view photograph of himself when questioning a witness on 18 January 2007. However, the poster in question contained a front view of defendant\u2019s face and not a side view. The Court of Appeals majority pointed out that ADA Higdon represented on 11 July 2005 that the actual \u201cphotographs\u201d used for the poster \u201chad been \u2018given to [Assistant District Attorney Nicholas] VLahos\u2019 and had been \u2018destroyed.\u2019 \u201d State v. Williams, 190 N.C. App. at-, 660 S.E.2d at 193 (brackets in original). Regardless, defendant\u2019s unrebutted testimony to the trial judge was that he never possessed copies of the photographs.\nBased on this evidence, the trial court\u2019s finding of fact number nine was supported by competent evidence and is binding on appeal. See Cooke, 306 N.C. at 134, 291 S.E.2d at 619.\nII. THERE IS NO REMEDY BUT TO DISMISS THE PROSECUTION\nN.C.G.S. \u00a7 15A-954(a)(4) requires that upon a defendant\u2019s motion, the trial court \u201cmust dismiss the charges stated in a criminal pleading if it determines that ... [a] defendant\u2019s constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant\u2019s preparation of his case that there is no remedy but to dismiss the prosecution.\u201d As the movant, defendant bears the burden of showing the flagrant constitutional violation and of showing irreparable prejudice to the preparation of his case. This statutory provision \u201ccontemplates drastic relief,\u201d such that \u201ca motion to dismiss under its terms should be granted sparingly.\u201d State v. Joyner, 295 N.C. 55, 59, 243 S.E.2d 367, 370 (1978).\nSection 15A-954(a)(4) was \u201cintended to embody the holding of this Court in State v. Hill.\u201d Id. (citing Official Commentary to N.C.G.S. \u00a7 15A-954). In Hill, this Court concluded that the defendant\u2019s pretrial motion to dismiss should have been allowed because the defendant was denied his constitutional rights to counsel and to obtain witnesses on his behalf. 277 N.C. 547, 552-54, 178 S.E.2d 462, 465-66 (1971). The denial of the defendant\u2019s rights to counsel and to obtain witnesses was particularly egregious because it deprived the defendant in Hill of the \u201conly opportunity to obtain evidence which might prove his innocence.\u201d Id. at 555, 178 S.E.2d at 467. We share a similar concern in the instant case regarding defendant\u2019s ability to secure material and favorable evidence.\nA. Flagrant Violation of Constitutional Rights\nThe trial judge concluded that the State violated defendant\u2019s rights under the United States and North Carolina Constitutions. The making and public display of this poster was unprofessional behavior. \u201c[T]he citizen\u2019s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law . . . and who approaches his task with humility.\u201d Robert H. Jackson, The Federal Prosecutor, in 31 J. Am. Inst, of Crim.. L. & Criminology 3, 6 (1940-41) [hereinafter The Federal Prosecutor] (address delivered by the then Attorney General of the United States at the Second Annual Conference of U.S. Attorneys on 1 April 1940 in Washington, D.C.). The mere making of the poster, however, is not a violation of defendant\u2019s constitutional rights for purposes of his motion under Brady v. Maryland, 373 U.S. 83 (1963). The flagrant violation of defendant\u2019s constitutional rights is found in that on numerous occasions defendant requested specific items of evidence that were favorable to him and material to his defense, but the State failed to provide that evidence, destroyed it, and then stated it could not be produced.\nIn Brady, the Supreme Court of the United States determined that the Due Process Clause of the Fourteenth Amendment to the United States Constitution required in state criminal cases \u201cthat the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\u201d Id. at 87 (citing U.S. Const, amend. XIV, \u00a7 1). Evidence favorable to an accused can be either impeachment evidence or exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). \u201cEvidence is considered \u2018material\u2019 if there is a \u2018reasonable probability\u2019 of a different result had the evidence been disclosed.\u201d State v. Berry, 356 N.C. 490, 517, 573 S.E.2d 132, 149 (2002) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Materiality does not require a \u201cdemonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant\u2019s acquittal.\u201d Kyles, 514 U.S. at 434 (citation omitted). Rather, defendant must show that the government\u2019s suppression of evidence would \u201c \u2018undermine [] confidence in the outcome of the trial.\u2019 \u201d Id. (quoting Bagley, 473 U.S. at 678).\nAlthough Brady does not require that a defendant make a specific request for favorable and material evidence, see id. at 433 (citing Bagley and United States v. Agurs, 427 U.S. 97 (1976)), the record indicates that on numerous occasions preceding the 11 July 2005 hearing, defendant requested specific items of material evidence favorable to his defense. Moreover, public records show subpoenas seeking this evidence dated 20 September 2004, 31 May 2005, 27 January 2006, and 20 February 2006. The subpoenas order that the poster or the computer hard drive used to create the poster be produced. Yet, defendant never received the requested evidence because the State destroyed it.\nAdditionally, the evidence was favorable to defendant. As to the assault charge, the evidence would have been admissible at trial for impeachment purposes during defendant\u2019s cross-examination of the State\u2019s witnesses. Moreover, defendant alleged in his motion that since 19 April 2004, he had been \u201cthe victim of a vicious conspiracy between Stanly and Union County Law Enforcement and Prosecutors ... to retaliate against [him] for the filing of a civil rights complaint in Stanly County Superior Court... and a civil rights complaint in the United States District Court.\u201d The poster and photographs were certainly relevant to defendant\u2019s theory of this conspiracy against him. The evidence also would have tended to prove the partial or complete defense of self-defense against the assault charge, because proof of the injuries sustained at the Union County Jail would have tended to show that defendant was not the aggressor. Therefore, defendant established that the \u201cconstitutional duty\u201d of producing this evidence was \u201ctriggered.\u201d See Kyles, 514 U.S. at 434.\nMoreover, the evidence was material. In its absence, we cannot say that defendant would receive a fair trial \u201cresulting in a verdict worthy of confidence.\u201d Id. By demonstrating the value of the evidence for impeachment purposes and to show self-defense, defendant has raised the reasonable probability that confidence in the outcome of a guilty verdict at trial would be undermined because \u201cthe favorable evidence could reasonably be taken to put the whole case in such a different light.\u201d Kyles, 514 U.S. at 435; see Bagley, 473 U.S. at 678; Berry, 356 N.C. at 517, 573 S.E.2d at 149. Thus, \u201cthe constitutional duty\u201d to produce the evidence in the instant matter was \u201ctriggered by the potential impact of favorable but undisclosed evidence.\u201d Kyles, 514 U.S. at 434. \u201c[T]he prosecution\u2019s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.\u201d Id. at 438.\nRelying on State v. Hunt, 339 N.C. 622, 657, 457 S.E.2d 276, 296 (1994), State v. Alston, 307 N.C. 321, 337, 298 S.E.2d 631, 642 (1983), and State v. Hardy, 293 N.C. 105, 127, 235 S.E.2d 828, 841 (1977), the State argues that Brady is inapposite to the instant matter because Brady only requires the State to turn over evidence at trial. We disagree for puiposes of the instant matter. At its most fundamental level, the due process principle Brady and its progeny protect is concerned with the \u201cavoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.\u201d Brady, 373 U.S. at 87; see Bagley, 473 U.S. at 675 (The prosecutor\u2019s duty is \u201cto disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.\u201d). The question is whether in the absence of the suppressed evidence a defendant receives a fair trial, \u201cunderstood as a trial resulting in a verdict worthy of confidence.\u201d Kyles, 514 U.S. at 434.\nEvery person charged with a crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in keeping with substantive and procedural due process requirements of the Fourteenth Amendment. It is the duty of both the court and the prosecuting attorney to see that this right is sustained.\nState v. Britt, 288 N.C. 699, 710, 220 S.E.2d 283, 290 (1975) (citations omitted).\nHere, ADA Higdon stated that the evidence had been \u201cdestroyed\u201d and that he \u201ccannot produce something that does not exist.\u201d Accordingly, we conclude that when the State makes a pretrial admission to the existence and destruction of evidence requested by the accused which is favorable to him and material to his guilt or punishment, and when the State further discloses that it is impossible to produce the evidence at that time or, by implication, at trial, then in the interest of judicial economy, the trial judge does not need to await a trial and verdict before deciding that a due process violation exists. The violation is already apparent, and any subsequent trial would be fundamentally unfair to defendant. As the Court in Brady recognized,\n[a] prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice ....\n373 U.S. at 87-88. If the architecture of injustice is apparent, then the trial judge does not need to allow the prosecution to design the trial any further.\nIndeed, the statute under which we are granting relief contemplates injuries occurring pretrial, during defendant\u2019s \u201cpreparation of his case.\u201d N.C.G.S. \u00a7 15A-954(a)(4) (2007) (emphasis added). The statute is the procedural mechanism that allows us to give effect to the Brady violation before a trial begins. Finally, we note again that section 15A-954(a)(4) was intended to embody the holding in State v. Hill, in which this Court held that the trial judge should have allowed the defendant\u2019s pretrial motion to dismiss based on the deprivation of the defendant\u2019s constitutional rights. See 277 N.C. at 550, 556, 178 S.E.2d at 464, 467.\nIn sum, the State\u2019s destruction of material, favorable evidence to defendant, and its admission that the evidence could not be produced, warrant the conclusion that any trial commenced against defendant would not comport with our notions of due process. Defendant\u2019s constitutional rights were flagrantly violated.\nB. Irreparable Prejudice\nBesides a flagrant constitutional violation, to grant defendant relief we must also find \u201csuch irreparable prejudice to the defendant\u2019s preparation of his case that there is no remedy but to dismiss the prosecution.\u201d N.C.G.S. \u00a7 15A-954(a)(4). This requirement also derives from State v. Hill, in which the defendant was charged with drunken driving, but was not allowed to immediately meet with counsel or witnesses who could have observed him \u201cwith reference to his alleged intoxication.\u201d 277 N.C. at 553, 178 S.E.2d at 466. This Court\u2019s concern in Hill regarding the irreparable prejudice to the defendant\u2019s ability to \u201cobtain evidence which might prove his innocence,\u201d id. at 555, 178 S.E.2d at 467, is analogous to our concern for defendant regarding the effect of his being denied material evidence favorable to his defense.\nAs the party moving for dismissal, defendant has the burden of showing irreparable prejudice to the preparation of his case. Defendant has met his burden in two ways. First, competent evidence supports the trial judge\u2019s conclusion that defendant never possessed the original photographs from which the poster was made. Consequently, we cannot remedy this situation by ordering or permitting defendant to re-create an item of evidence he did not originally create and for which he does not possess the raw materials. The State ardently contends that defendant can reproduce the poster, but has offered no evidence to support this claim. Based on defendant\u2019s testimony, the evidence before the trial judge was that defendant could not re-create the evidence. Therefore, as this Court said in Hill, we cannot \u201c[u]nder these circumstances . . . assume that which is incapable of proof.\u201d Id. at 554, 178 S.E.2d at 466.\nSecond, defendant has demonstrated the futility of relying on witness testimony to prove the contents of the poster. Several of defendant\u2019s subpoenas called for ADA Nicholas Vlahos, an alleged creator of the poster, to appear with the poster and testify, but Mr. Vlahos never did either. Additionally, defendant presented the transcript of a trial in Stanly County on unrelated charges, during which defendant attempted to question a witness regarding the existence and contents of the poster. At every turn, the State objected to the questions, and the trial judge sustained the objections. Thus, the record reflects that any attempt to introduce witness testimony about the poster at a trial in the instant case would likely be similarly unfruitful. Based on defendant\u2019s uncontroverted evidence, the unavoidable conclusion is that he was irreparably prejudiced in the preparation of his case because of the State\u2019s destruction of material, favorable evidence.\nCONCLUSION\nBeyond the unprofessional nature of this poster, we are satisfied that defendant has met the elements of N.C.G.S. \u00a7 15A-954(a)(4). We conclude that no other remedy exists but for the assault charge against defendant to be dismissed. Accordingly, we affirm the Court of Appeals.\nAFFIRMED.\n. Referring to Brady v. Maryland, in which the United States Supreme Court held \u201cthat the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.\u201d 373 U.S. 83, 87 (1963).\n. After hearing the evidence, the trial judge, the Honorable James E. Hardin, commented:\nI\u2019ve been in the system now in one form or another since 1979.1 spent more than twenty years in the D.A\u2019s office; I filled five different positions, eleven and a half years as the [elected] D.A. Frankly, if I had two assistants that put together a photographic array like this and made a poster and posted it on the wall making fun of a defendant, even if they can\u2019t stand him, they would have had a real problem with me. I got a real problem with this poster .... There\u2019s no excuse for that. We\u2019re going to treat people with dignity and respect even if they\u2019re charged with crimes. That\u2019s the right thing to do and I think frankly, as prosecutors, we\u2019re held to that responsibility ethically, morally and legally.\nDuring oral argument, counsel for the State firmly acknowledged how \u201cinappropriate\u201d it was that this poster had been made and displayed.\n. The making and public display of this poster bring to mind the comments of former United States Attorney General and former United States Supreme Court Justice Robert H. Jackson: \u201cWhile the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.\u201d The Federal Prosecutor at 3. A prosecutor \u201ccan have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.\u201d Id. at 4.\n. While the September 2004, January 2006, and February 2006 subpoenas do not appear to be included as part of the record in the case sub judice, they are part of the record in another action arising out of Stanly County. State v. Williams, 186 N.C. App. 233, 650 S.E.2d 607 (2007). We take judicial notice of these subpoenas in accordance with our practice of taking \u201cjudicial notice of the public records of other courts within the state judicial system.\u201d State v. Thompson, 349 N.C. 483, 497, 508 S.E.2d 277, 286 (1998) (citing Alpine Motors Corp. v. Hagwood, 233 N.C. 57, 62 S.E.2d 518 (1950)).\n. Ensuring that justice is done is not only the goal of this Court,.but it is ultimately an interest of the State itself. See Berger v. United States, 295 U.S. 78, 88 (1935). The State of North Carolina \u201c \u2018wins its point whenever justice is done its citizens in the courts.\u2019 \u201d See Brady, 373 U.S. at 87 (quoting an inscription on the walls of the United States Department of Justice building).", "type": "majority", "author": "BRADY, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney General, for the State-appellant.", "Richard E. Jester for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. THEODORE JERRY WILLIAMS\nNo. 256A08\n(Filed 12 December 2008)\nConstitutional Law\u2014 right to fair trial \u2014 flagrant constitutional violation of rights \u2014 irreparable harm \u2014 State\u2019s destruction of evidence\nThe Court of Appeals did not err by dismissing the charge of felony assault on a government officer or employee under N.C.G.S. \u00a7 15A-954(a)(4) based on the State\u2019s destruction of evidence of a poster that contained two photographs of defendant placed on a wall in the offices of the District Attorney for the Twentieth Prosecutorial District depicting defendant without any injuries as he appeared when processed into the Stanly County Detention Center on 17 November 2003 with a caption stating \u201cBefore he sued the D.A.\u2019s office,\u201d and a second photograph depicting the injured defendant as he appeared when processed back into the Stanly County Detention Center on 20 April 2004 with a caption stating \u201cAfter he sued the D.A.\u2019s office,\u201d because: (1) although the mere making of a poster was not a violation of defendant\u2019s constitutional rights for purposes of his motion under Brady v. Maryland, 373 U.S. 83 (1963), the flagrant violation of defendant\u2019s constitutional rights was found in that on numerous occasions defendant requested specific items of evidence that were favorable to him and material to his defense, but the State failed to provide that evidence, destroyed it, and then stated it could not be produced; (2) the pertinent poster and photographs were relevant to defendant\u2019s theory of a conspiracy between Stanly and Union County Law Enforcement and Prosecutors to retaliate against him for the filing of a civil rights complaint, and the evidence also would have tended to prove the partial or complete defense of self-defense against the assault charge since proof of the injuries sustained at the Union County Jail would have tended to show that defendant was not the aggressor; (3) the evidence was material and in its absence it could not be said that defendant would receive a fair trial resulting in a verdict worthy of confidence; and (4) defendant met his burden of showing irreparable prejudice to the preparation of his case by showing defendant could not recreate the evidence, and defendant demonstrated the futility of relying on witness testimony to prove the contents of the poster.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 190 N.C. App. 301, 660 S.E.2d 189 (2008), affirming an order entered 18 January 2007 by Judge James E. Hardin in Superior Court, Union County. Heard in the Supreme Court 13 October 2008.\nRoy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney General, for the State-appellant.\nRichard E. Jester for defendant-appellee." }, "file_name": "0628-01", "first_page_order": 706, "last_page_order": 718 }