HOWARD v. CITY OF DURHAM et al

Filing 119

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 09/16/2020, that Defendant City of Durham's motion for judgment on the pleadings (Doc. 73 ) is GRANTED, and Howard's direct con stitutional claims (Eighth Cause of Action) are DISMISSED; Defendant Milton Smith's motion for summary judgment (Doc. 75 ) is GRANTED as to Howard's common law malicious prosecution claim (Seventh Cause of Action), which is DISMISSED, bu t is otherwise DENIED as to Howard's § 1983 fabrication claim (First Cause of Action) and intentional infliction of emotional distress claim (Sixth Cause of Action); Defendants Michele Soucie and Scott Pennica's motion for summary judgment (Doc. 77 ) is GRANTED, and the claims Howard brings against them in his § 1983 claim (Third Cause of Action), common law obstruction of justice claim (Fourth Cause of Action), and intentional infliction of emotional distress claim ( Sixth Cause of Action) are DISMISSED WITH PREJUDICE; Defendant Darrell Dowdy's motion for summary judgment (Doc. 79 ) is GRANTED IN PART as to Howard's § 1983 malicious prosecution claim (First Cause of Action) to the extent noted herein, as well as to his common law malicious prosecution claim (Seventh Cause of Action), which is DISMISSED; but is otherwise DENIED; and Defendant City of Durham's motion for summary judgment (Doc. 81 ) is GRANTED, and Howard's  7; 1983 Monell claims (Second Cause of Action) as well as the derivative state law claims for common law obstruction of justice (Fourth Cause of Action) and intentional infliction of emotional distress (Sixth Cause of Action) are DISMISSED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DARRYL HOWARD,
Plaintiff,
v.
CITY OF DURHAM, DARRELL DOWDY,
in his individual capacity;
MICHELE SOUCIE, in her
official and individual
capacities; SCOTT PENNICA, in
his official and individual
capacities; MILTON SMITH, in
his individual capacity,
Defendants.

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1:17cv477

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This lawsuit arises out of the conviction and incarceration
of Plaintiff Darryl Howard for the 1991 murders of Doris and
Nishonda Washington and the subsequent burning of their apartment.
In 2016, Howard was granted a new trial based on the discovery of
exculpatory DNA evidence and released from prison.

The State of

North Carolina subsequently dismissed all criminal charges against
him.
Howard alleges that Defendants City of Durham, Darrell Dowdy
-- an investigator with the Durham Police Department (“DPD”) -and Milton Smith -– a member of the Durham Fire Department -fabricated and suppressed evidence to obtain his conviction.

He

also alleges that, following his conviction, two other members of

the DPD –- Michele Soucie and Scott Pennica

–- purposefully

withheld exculpatory evidence in violation of a state court order,
resulting in his unnecessary continued incarceration.

Before the

court are motions for summary judgment by Defendants Dowdy (Doc.
79), Smith (Doc. 75), Pennica and Soucie (Doc. 77), and City of
Durham (Doc. 81).

Howard filed a consolidated response (Doc. 87),

and Defendants filed reply briefs (Docs. 100, 101, 104, 105). City
of Durham also moves for judgment on the pleadings as to Howard’s
state constitutional claims against it.

(Doc. 73.)

Howard filed

a response (Doc. 90), and the City filed a reply (Doc. 103).
Following

oral

argument

on

the

motions

conducted

conference, the parties filed supplemental briefing.
118.)

via

video-

(Docs. 115,

For the reasons set forth below, Defendants’ motions will

be granted in part and denied in part.
I.

BACKGROUND
A.

Facts

The facts presented, taken in the light most favorable to
Howard as the non-moving party, show the following1:
1.

The Murders and Investigation

Doris Washington and her 13-year-old daughter, Nishonda, were
1

Howard claims that substantial parts of Dowdy’s reports were
fabricated. For purposes of context, the court lays out the facts here
based on Dowdy’s reports and addresses the alleged fabrications later
in the opinion. In so doing, the court relies on the record and not on
Howard’s characterization of it, which was less than fully accurate.

2

murdered in the early morning of November 27, 1991, in their
apartment in the Few Gardens public housing development in Durham,
North Carolina.

(Doc. 88-5; Doc. 87-8 at 5.)2

The Durham Fire

Department was initially called to the scene because Doris’s
apartment had been set on fire.

The firemen found Doris’s and

Nishonda’s bodies while responding to the fire.

(Doc. 87-8 at 5.)

Both were naked, lying face down on a bed, and showed signs of
strangulation.

(Id. at 5, 7.)

Defendant Dowdy, a detective in the DPD, was assigned as the
lead investigator in the murders and, as a result, conducted most
of

the

interviews

with

investigative report.

witnesses,

which

he

recorded

in

his

(Doc. 72-1 at 351:16-352:2; Doc. 87-8.)

The morning after the murders, Plaintiff Howard was arrested
in Few Gardens for trespassing and driving without a license.
(Doc. 87-8 at 7.)

According to the DPD report, in the course of

his arrest he had a conversation with the officer about the deaths
of Doris and Nishonda, as Howard knew Doris personally.
7-8.)

(Id. at

Howard was brought in to DPD and questioned specifically

about the murders. (Id.; Doc. 87-13 at 526:7-25.) The DPD reports
indicate that during the booking process, Howard, unprompted by
officers, said he could not understand why Doris had killed her

2

All citations to the record are to the ECF docket page except for
testimony, which is cited to the actual trial and deposition transcript
page.

3

daughter and then herself.

(Doc. 87-8 at 8.)

Howard denied any

involvement and was allowed to leave that day.
257:21-25, 265:5-8.)

(Doc. 88-3 at

Dowdy spent the rest of that afternoon in

the Few Gardens development interviewing residents.

(Doc. 87-8 at

9.)
That same morning after the murders, autopsies of Doris and
Nishonda Washington were completed.

(Doc. 87-17; Doc. 87-18.)

The pathologist concluded that Doris had died of blunt force injury
to the abdomen (Doc. 87-17 at 2) and Nishonda had died of ligature
strangulation (Doc. 87-18 at 2).

Doris also had a ligature mark

around her neck and showed signs of strangulation.
10.)

Sperm was found in Nishonda’s anus.

(Doc. 87-17 at

(Doc. 87-18 at 6.)

Doris had a laceration in her vagina (Doc. 87-17 at 3), but the
autopsy showed no presence of sperm (id. at 9).

Both Doris and

Nishonda had been killed before the fire started.

(Doc. 87-17 at

10; Doc. 87-18 at 6.)
Three days later, at 1:40 a.m. on November 30, 1991, Dowdy
interviewed Roneka Jackson.

Jackson had been arrested earlier in

the night on unrelated charges and had volunteered information
about the Washington murders.

(Doc. 87-8 at 11.)

In a taped

interview, Jackson, who was 17 years old at the time, told Dowdy
that at about 10:00 p.m. on the night of the murders she overheard
Howard get into an argument with Doris Washington over the fact
that Doris was allowing Howard’s girlfriend to prostitute herself
4

at Doris’s apartment.

(Id. at 12-13, 18.)

According to Jackson,

Howard claimed that his girlfriend was in Doris’s apartment and
after Doris refused to allow Howard in, Howard said he would come
back and kill Doris and her daughter, Nishonda.3
18.)

(Id. at 12, 13,

Jackson said she knew the girlfriend but not her name and

never saw her leave Doris’s apartment that night.
18.)

(Id. at 12,

Later that night, Jackson said, she saw Howard and his

brother Bruce “come out the house” where Doris Washington lived
carrying a television and VCR.

(Id. at 13-14.)

About ten or

fifteen minutes later, Jackson saw smoke coming from the apartment.
(Id. at 19-20.)
On December 1, another DPD officer received a tip from an
informant suggesting that Doris and Nishonda had been murdered
because

Doris

Philadelphia.

owed

$8,000

to

drug

(Doc. 88-39 at 2.)

dealers

from

New

York

or

The tip stated that Doris was

using her apartment to stash drugs for these dealers who later
found some of the drugs missing when they came to pick them up,
hence Doris’s $8,000 debt.

(Id. at 2-3.)

The tipster said that

when the drug dealers came to collect their money, “they first
raped [Doris] before strangling her.”

(Id. at 3.)

Nishonda, the

tipster surmised, may have “unknowingly walked in” on the scene
and was killed as a result.

(Id.)

3

One of Dowdy’s superiors, E.E.

Dowdy’s report refers to Doris’s daughter as “Lashonda.”
at 13.)

5

(Doc. 87-8

Sarvis, informed Dowdy on the margins of the tip sheet that there
might be “something to this” because he did not believe the sexual
assaults were public knowledge at the time.

(Id. at 2.)

Dowdy,

however, did not recall following up on the information contained
in this tip, even though it had been flagged by a superior.
87-2 at 216:1-217:25.)

(Doc.

He instead believed that the tip did not

contain relevant information because he did not know the informant
who provided the tip and could not “tangibly tie [that] person to
the case.”

(Id. at 220:15-25.)

On December 3, 1991, Dowdy interviewed Kelvin Best.4

Dowdy

reported that Best told him that, on the night of the murders, he
had seen Howard and his brother Kenny come around the back of
Doris’s apartment building carrying a television and VCR.
87-8 at 24.)

(Doc.

Two days later, Dowdy interviewed Dwight Moody Moss,5

who was with Best that night.

(Id.)

Dowdy’s report states that

Moss provided a signed statement that around 4:00 p.m. on the
afternoon of the murders, he observed Howard and Doris arguing.
(Id. at 25.)

Dowdy reported that Moss heard Howard yell at Doris,

“I am going to kill you bitch.”

(Id.)

That night, just prior to

midnight, Moss reported seeing Howard, his brother Kenny, and an
unidentified woman go to Doris’s apartment; the woman knocked on
4

Dowdy’s report identifies him as “Kevin Best.”

5

(Doc. 87-8.)

Dowdy’s report refers to Moss as “Dwight Moody.” (Doc. 87-8.) As
detailed below, Howard claims that Dowdy fabricated the entirety of
Moss’s statement.

6

Doris’s front door and went in while Howard and his brother went
around the back.

(Id. at 25-26.)

Moss saw the woman leave Doris’s

apartment 30 to 40 minutes later and then saw Howard and Kenny
“come around from the back of Doris’ building.”

(Id. at 26.)

Howard appeared to be carrying a television and Kenny a VCR. (Id.)
Shortly thereafter, Moss saw smoke coming from the back of Doris’s
apartment.

(Id.)

In early January 1992, Dowdy spoke to Gwendolyn Roper Taylor.
According to Dowdy’s report, Taylor said that Howard had told her
in a club that he had “killed the bitch and her daughter to [sic],”
in reference to Doris and Nishonda.

(Id. at 27.)

Taylor also

told Dowdy that she did not want to testify in court about it.
(Id. at 27-28.)
In February 1992, three months after the murders, Dowdy
requested, and the DPD Chief of Police, Trevor Hampton, approved
and wrote, a request to the Governor of North Carolina to offer a
$10,000 reward for information regarding the murders.
Doc. 88-28.)

(Id. at 28;

In requesting the reward, the DPD told the Governor

there were no leads in the murders, even though Dowdy suspected
Howard as the culprit.

(Doc. 88-28; Doc. 87-2 at 106:14-21.)6

The

Governor granted the request, and the reward was posted in the Few

6

Dowdy stated in his deposition that he may have told the Chief of
Police there were suspects in the case (Doc. 87-2 at 109:4-7, 110:1114), but the Chief nevertheless told the Governor that DPD had developed
no leads (Doc. 88-28).

7

Gardens complex on March 19, 1992.

(Doc. 87-8 at 28; Doc. 88-27.)

On June 2, 1992, Dowdy interviewed Eric Lamont Shaw.

Dowdy

reported that Shaw had witnessed a meeting of a gang known as the
New York Boys, in which the gang ordered Howard to kill Doris to
settle debts she owed them.

(Doc. 87-8 at 28-29.)

On June 24,

Dowdy interviewed Howard again while he was in the hospital after
being wounded by members of the New York Boys.

(Id. at 29.)

According to Dowdy, Howard told him that on the night of the
murders he had been in another apartment unit where he had bought
a VCR and boom box in exchange for crack cocaine.

(Id.)

On October 10, 1992, DPD arrested Angela Southerland7 for
prostitution.

(Doc. 88-30.)

When she was arrested, officers

reported to Dowdy that she claimed to have been with Howard the
night of the murders and had information that only someone who
actually saw the murders would know.

(Doc. 87-2 at 320:24-321:5.)

Believing she matched the description of a woman who witnesses had
reported seeing with Howard in Few Gardens on the night of the
murders,8 Dowdy interviewed Southerland and audio-recorded the
interview.

(Id.; Doc. 87-8 at 30.)

The transcript of the

interview reflects that Southerland told Dowdy she had seen Doris

7

Southerland went by various names during the course of the investigation
and trial: Angela Oliver, Theresa Simpson, and Angela Rogers. (Doc. 721 at 283:4-11, 305:23-306:13.)
8

Howard claims he was with Natasha Mayo, who testified for him as an
alibi witness at trial. (Doc. 72-1 at 455-97.)

8

and Howard arguing about drugs and money the day of the murder,
that she herself was inside Doris’s apartment when the murders
occurred, and that she had seen Howard attack Doris while Howard’s
brother, Harvey, was present in the apartment.
3, 6-7, 10.)

(Doc. 88-32 at 2-

Southerland also stated that, after the murders,

only Harvey (who went by the name “Wiz”) left Doris’s apartment
through the back door –- Howard himself left the apartment through
the front.

(Doc. 87-8 at 39.)

On October 27, Dowdy spoke with Kelvin Best again.

Best

provided an updated statement in which he said that he had seen
Howard and his brother (whom Best did not identify) leave from the
back door of Doris’s apartment just before the fire was detected.
(Id. at 43-44.)9
On November 11, 1992, Dowdy spoke with Roneka Jackson for a
second time.

(Id. at 44.)

Dowdy presented Jackson with a

photographic lineup and she identified Angela Southerland as the
person with whom she had seen Howard the night of the murders.
(Id.)

In a different photographic lineup, Jackson identified

Harvey Howard as another individual she had seen with Howard that
night.

(Id.)

Following this interview, Dowdy recommended that

Jackson receive the $10,000 reward10 the Governor had authorized
9

Howard contends that Dowdy fabricated this second statement from Best
in order to obtain more inculpatory evidence.
10

It is unclear whether Jackson received the $10,000 reward.

9

She was

because

she

had

provided

key

information,

namely

identifying

Southerland as being with Howard the night of the murders.

(Doc.

87-2 at 284:2-8.)11
The next day, November 12, 1992, Dowdy obtained warrants for
the arrest of Darryl and Harvey Howard for the murders of Doris
and Nishonda Washington. (Doc. 87-8 at 44-45.) Both were arrested
and taken into custody.
Shortly thereafter, and after speaking with Dowdy, Defendant
Milton Smith, an investigator with the Durham Fire Department who
had been assigned to investigate the burning of the Washingtons’
apartment, sought warrants for Darryl and Harvey for arson.

While

booking the two brothers, an exchange occurred between Smith,
Darryl, and Harvey that forms the crux of Howard’s claims against
Smith.

In his report documenting the exchange, Smith wrote that

Harvey
stated he was not even at [the Washingtons’ apartment]
when Doris Washington was killed and her house was set
on fire.
. . . Darryl Howard stated that [Harvey] was
not with him in Few Gardens when this ‘thing went down’.
Darryl Howard stated that his brother Kenneth was with
him. [Smith] then asked Darryl Howard, ‘so [Harvey] was
not with you, huh? So your brother Kenneth was with you
set afire and brutally murdered by members of the New York Boys gang in
1995, a few months after she testified in Howard’s trial. See United
States v. Celestine, 43 F. App’x 586, 589-90 (4th Cir. 2002) (per
curiam).
11

Howard contends that Dowdy fabricated this evidence, arguing that
Jackson originally did not report seeing a woman with Howard that night,
and had identified Kenny Howard, not Harvey, as the brother with him.

10

when you did the thing’? Darryl Howard stated that ‘yes,
it was me and Kenneth.’”
(Doc. 88-40 at 5-6.)

Smith characterized this statement as a

confession by Howard that he had committed the murders and arson.12
In February 1993, the DPD obtained samples of Howard’s DNA to
test against the sperm found in Nishonda Washington’s anus.
87-8 at 46.)

(Doc.

A March 1993 DNA test report indicated the presence

of sperm in Nishonda’s vaginal and rectal swabs, which had been
left within 24 hours of Nishonda’s autopsy.
80:25.)

(Doc. 72-1 at 79:19-

The testing excluded Howard as the source of this sperm.

(Doc. 87-21.)

Dowdy thus understood that if the killer had had

sex with Nishonda, Howard was not the killer.

(Doc. 87-2 at

183:24-184:4.)
As Howard’s trial neared, and after Dowdy had submitted his
investigative report to the prosecutors (and thus to Howard’s
counsel) in preparation for the trial, the lead prosecutor in
Howard’s case, Michael Nifong, stressed to Dowdy the importance of
finding out if Nishonda had a boyfriend –- thus explaining the
presence of sperm unattributable to Howard -- and if so, to locate
him.

(Doc. 88-6 at 74:25-77:5.)

Sometime before trial, Dowdy

reported back to Nifong that Nishonda –- who was 13 at the time - had been staying with her boyfriend up until the evening of her

12

Howard argues that Smith purposefully misreported the conversation and
that he (Howard) was actually clarifying that Kenneth and not Harvey had
been with him in Few Gardens on the night of the murders.

11

murder, thus explaining away the sperm evidence.

(Doc. 87-2 at

170:6-21.) Dowdy never learned the boyfriend’s name, never located
him, and never found the address where Nishonda and her boyfriend
were staying prior to her murder.

(Id.)

All of the information that Dowdy believed to be relevant to
Nishonda’s whereabouts was contained in his report.
63:18.)

(Id. at 62:7-

But his report contains no information regarding his

investigation

into

Nishonda’s

boyfriend,

and

indeed

contains

testimony from a witness that Nishonda had returned to Doris’s
apartment on Sunday –- two days before the murders and not the
evening before.

(Doc. 87-8 at 10; Doc. 87-16.)13

In 1994, Roneka Jackson became a registered confidential
informant for another investigator with the DPD on an unrelated
matter.

(Doc. 80-13 at 84:6-85:6.)
2.

Howard’s Trial

Howard’s trial began on March 27, 1995.
the

first

witnesses

to

testify

was

the

(Doc. 72-1.)
pathologist

One of

who

had

performed the autopsies of Doris and Nishonda Washington.

He

testified that, in his best estimate, the sperm found in Nishonda

13

Howard argues that Dowdy actually performed no additional
investigation and instead gave Nifong false, unsupported conclusions
about Nishonda’s whereabouts. As detailed infra, Dowdy claims that his
additional investigation merely turned up no new evidence about
Nishonda’s boyfriend other than the evidence contained in his report,
and so he had no additional information for Nifong on that score, and
that his oral interviews of neighbors, consistent with a newspaper
report, confirmed Nishonda’s return the day of the murders.

12

Washington’s anus had been deposited within 24 hours of the
autopsy, which had occurred around 10:00 a.m. the day after the
murders.

(Id. at 80:17-25.)

Roneka Jackson testified, first relaying the argument she had
witnessed between Howard and Doris Washington the afternoon before
the murders in which Howard threatened to kill Doris and her
daughter.

(Id. at 173:2-175:3.)

She also testified that later

that evening she observed Howard’s girlfriend –- whom she could
not identify by name –- let Howard in to Doris’s apartment.
at 179:24-180:18.)

(Id.

She said that later that night she observed

Howard and his brother Bruce “coming out . . . the back porch” of
Doris’s apartment carrying a television.

(Id. at 176:13-177:15.)

The subject of her status as a registered confidential informant
with DPD was not raised during her testimony.
Rhonda Davis was the next witness.

She testified that Doris

Washington had been a friend of hers for several years and that
she knew Howard since childhood.

(Id. at 195.)

She said she was

with Doris from about 10:30 a.m. to about 10:30 p.m. just before
the murders, getting high on cocaine.

(Id. at 195:16-196:8.)

As

Davis was leaving, Doris was directing her daughter, Nishonda, to
go to bed, and Doris said she was going “for a run” (to get drugs).
(Id. at 197:4-198:7.)

Davis did not see Doris again that night

but did go back to her apartment between 11:30 p.m. and midnight
to buy more crack cocaine.

As she knocked on the locked screen
13

door, she testified, about five minutes passed and she saw Howard
look out the window and say they “was busy.”
200:2.)

She heard dishes rattle in the sink.

(Id. at 198:25(Id. at 200:3-12.)

She went to the front door and knocked, and though nobody came,
she “heard somebody going up the steps.”

(Id.)

She then left.

On cross-examination, Davis testified she did not hear any threats
to Doris earlier that day, which was contrary to the testimony of
other prosecution witnesses.

(Id. at 202:25-203:16.)

Kelvin Best testified that he had seen Howard and his brother
carrying a television and what appeared to be a VCR from the
Washingtons’ apartment building.

(Id. at 228:4-19.)

When asked

if he could “tell exactly where [Howard and his brother] had come
from” when he saw them, Best said they had come “[r]ight behind
Doris’s -- right out the back door of Doris [Washington’s] house.”
(Id. at 228:20-23.)

When asked to clarify if he was saying he had

seen them come “[o]ut of the back door of Doris’s house,” Best
responded, “Yes.”

(Id. at 228:24-25.)

Dwight Moody Moss took the stand next.

He testified that he

was familiar with Howard and that at about 4:00 p.m. on the
afternoon before the murders, he observed Howard outside Doris’s
apartment arguing that she had “messed up the money” and “messed
up the drugs.”

(Id. at 241:18-242:24.)

Howard yelled to Doris,

“you will get yours,” and “I’ll kill you.”

(Id. at 243:3-18.)

Later that evening at about 11:30 p.m., he saw Howard “coming
14

around from the back side of [Doris Washington’s] apartment”
complex.

(Id. at 244:13-15, 245:16-24.)

Moss was then presented

with his signed statement from his interview by Dowdy.

Moss

confirmed that the signature at the bottom of the statement was
his, even though the content of the statement was in Dowdy’s
handwriting.

(Id. at 247:1-14, 247:23-25.)

The prosecutor asked

if Moss remembered making this statement to

Dowdy, and Moss

responded that he did not remember saying everything in the
statement.

(Id. at 248:25-249:8.)

However, Moss confirmed that

he had read the statement Dowdy wrote out before signing it.
at 250:4-11.)

(Id.

On cross-examination, Moss testified that, because

it had been four years since he had given his statement to Dowdy,
he struggled to distinguish between what he had actually told Dowdy
and what rumors he had generally heard about the murders.

(Id. at

265:3-25.)
DPD Investigator Robby Davis testified after Moss.

Davis

relayed that on the morning after the murders he arrested Howard
for trespassing in Few Gardens.

(Id. at 267:1-4, 270:13-272:8.)

While he was in the process of booking Howard, Davis testified,
Howard brought up the deaths of the Washingtons and commented,
among other things, that he knew Doris had been mad at Nishonda
for dating an older man.

(Id. at 273:1-24.)

He further testified

that during the booking process, Howard, unprompted, repeatedly
commented that “he didn’t know why” Doris killed Nishonda and then
15

herself.

(Id. at 273:14-274:7.)

Angela Southerland testified next.

She was an acknowledged

cocaine user, both at the time of the murders and at the time of
trial.

(Id.

at

307.)

Southerland

was

recalcitrant

and

argumentative, so much so that she had to be brought to court under
arrest

as

a

material

witness

and

the

court

prosecution to treat her as a hostile witness.

permitted

the

(Id. at 290:4-10.)

After she refused to be responsive to questioning, prosecutors
played her taped interview with Dowdy for the jury, with no
objection (actually, with encouragement) from Howard’s counsel.
(Id. at 296:3-297:1.)

On the tape (a transcript of which is

provided in the record),14 Southerland stated that she accompanied
Howard to Doris’s apartment the day of the murders:
Me and him went there to pick up his [drug] package or
his money [from drug sales]. We went there early that
day, she didn’t have it. He said if you don’t have it,
I’m going to kill your motherfucking ass, if you don’t
have my damn money or my packages when I get back.
. . . We picked up his brother, Wiz. We call him Wiz,
Harvey Howard, and we went back. She didn’t have it. I
went in the house with him. She still didn’t have his
stuff, so he started jumping on her and after a while,
he grabbed her. He pushed her against the wall at first.
He grabbed her, he said let’s go.
He was taking her
upstairs. He told me to get outside, gone, cause, he
didn’t want me to be around what he [was] fixing to do
and I asked him not to do it, and the next thing I know,
there was a lot of noise.
She was hollering and
screaming. I stood outside on the porch. Wiz went in
14

There is no copy of the recording in the record. Howard requested
that Defendants provide a copy, but it was never turned over. (Doc. 87
at 23 n.9.) The Durham County Superior Court confirmed that the tape
was never entered into evidence at Howard’s trial, despite being played
aloud for the jury. (Doc. 89-5.)

16

there. He was in there with them. The next thing I
know the lights came on upstairs and after while it got
quiet. He turned off the lights. He left and he did
set a fire.
(Doc. 87-8 at 31-32.)

When asked how she knew he set a fire, she

stated:
Because me and Wiz was outside when the fire started and
he jumped in the car and we left. He was the only person
in the house.
(Id. at 32.)

Later in the interview, Southerland went into more

detail:
First she stood to the door.
She was talking.
He
started getting rowdy, so he went on in the house. She
didn’t have what he wanted.
He started pushing her
against the wall, arguing and cussing. He pulled out a
gun at first and he told me to go on back to the car. I
didn’t go to the car. I stood at the door, and I know
he made her go upstairs and she said for what, my
daughter or something, my daughter here, my daughter
here. I heard her saying that and he started cursing.
They went upstairs, the lights went on.
I heard her
screaming and stuff. The next thing I know that was it.
He called his brother. I went on to the car and then I
seen the fire and he told Wiz, he said he had to burn
them up. He didn’t want to leave no evidence.
(Id. at 35-36.)

When asked where Howard hit Doris, Southerland

stated:
In the face. He pushed her up against the wall. In her
chest and I said, Darryl please don’t. I said, it ain’t
worth it, let’s go, please, let’s go and that’s when he
told me to get on out. He said gone out there. He said,
cause I don’t want you to be involved in this. I said,
but Darryl I’m ready to go. He said, well if I leave
and he decided what he was going to do, so I just stood
to the door and I heard him making her go upstairs. She
was hollering her daughter, her daughter was there, her
daughter.

17

. . . and I said Wiz please stop him, stop him. He said,
she shouldn’t have fucked up his damn shit. She know[s]
what time it was.
(Id. at 36, 38.)
Southerland testified that Dowdy had stopped the interview
multiple times saying “something ain’t right,” “turn off the tape,”
and “come on now.” (Doc. 72-1 at 299:19-300:25.) She acknowledged
that the interview took almost 46 minutes, but the tape was much
shorter.

(Id. at 307-08.)

During the course of her direct

examination, she said that the prosecution “can’t force me to come
and tell something I didn’t see.”

(Id. at 304:10-11.)

When asked

by the prosecutor if she had told Dowdy the truth during her
interview, Southerland avoided answering the question (id. at
300:15-25), then this exchange occurred:
Q: Did you hear anything that we just played [from
Southerland’s interview with Dowdy] for the jury that
was not true?
A: I don’t want to talk about that.
Q: Excuse me?
A: I don’t know.
Q: Now, I want to tell the jury if some of that is not
true.
A: It’s not.
Q: What part is not true?
A: I don’t know.
Q: What part is not true?

18

A: It’s true.

I said it.

Q: No ma’am. I want you to tell this jury –- I want you
to look them in the face and tell them what part is not
true.
A: I said I am not saying anything.
(Id. at 300:14-301:4.)

At the end of her direct testimony,

Southerland testified as follows:
Q: Miss Oliver, did you tell the truth to Darryl Dowdy about
what the defendant did that night when you talked to him on
this tape?
MR. VANN: Objection.
COURT: Overruled.
BY MR. NIFONG:
Q: Did you?
A: I told you one time.
Q: Tell me again.
A: Yeah.
(Id. at 305:6-15.)

On cross-examination, as to the contents of

the tape she testified, “Honestly, I didn’t lie about that.”
at 213:6-10.)

(Id.

She denied that she gave the statement to Dowdy to

“get out” or that she “would have said anything” to get back to
her cell to sleep.

(Id. at 312:20-25.)

Milton Smith, who by the time of trial was Durham’s fire
marshal, testified next.

He discussed his work investigating the

arson of the Washingtons’ apartment the night of the murders and
then described the night he arrested Howard and his brother Harvey
for arson.

Smith stated that, after he completed booking Darryl
19

Howard and had started booking Harvey, Darryl said that Harvey
“was not with him in Few Gardens when this incident took place,
that his brother Kenneth was with him.”

(Id. at 320:1-3.)

Smith

said he turned around and said to Howard, “So [Harvey] was not
with you, huh.

So, it was your brother Kenneth with you when you

did this thing.”

(Id. at 320:11-13.)

Smith testified that Howard

responded “yes, it was me and Kenny.”

(Id. at 320:17-19.)

Smith

testified that he did not need to clarify what he meant by “this
thing” because it was clear to him that they were discussing the
murders and arson. (Id. at 324:15-19.) Smith also testified that,
even though Howard had seemingly implicated his brother Kenny in
whatever had occurred, Smith continued to book Harvey for arson
and never investigated Kenny or issued a warrant for his arrest.
(Id. at 327:16-22.)
Gwendolyn Roper Taylor testified next. She said she had known
Doris since high school and Howard all her life.
14, 332:22-333:1.)
someone

at

a

Washingtons.

(Id. at 332:10-

She related how she had heard Howard tell

crowded

drink

house

(Id. at 333:17-24.)

that

he

had

killed

the

She clarified that Dowdy’s

report had incorrectly stated that Howard had spoken directly to
her; instead, she said, she heard Howard make the statement to
someone

else.

(Id.

at

333:22-24,

338:12-23.)

On

cross-

examination, Taylor stated that she did not know who Howard was
speaking to and did not remember what month or day she had
20

overheard the conversation.

(Id. at 336:11-337:7.)

She also

testified she did not know if Howard was being truthful or had
made the statement in jest.

(Id. at 337:12-20.)

She did say,

however, that she was testifying from what she remembered, not
from what Dowdy had written in his report.

(Id. at 338:4-23.)

She also denied that Dowdy had promised her anything for her
testimony.

(Id. at 339:17-19.)

Eric Campen, Jr., DPD crime scene investigator, testified
that after the fire he

walked through Doris’s apartment and

observed a spot near a television where a VCR had been, based on
the dust pattern, surmising that someone had recently removed a
VCR or similar electronic device.

(Id. at 346:5-25.)

Dowdy was the final witness for the State.

Because Moss had

claimed not to remember making various statements attributed to
him in his signed statement, Dowdy was permitted to read Moss’s
signed statement aloud for the jury.

The court gave limiting

instructions to the jury about those portions of Moss’s statement.
(Id. at 372:8-378:2.)

In his statement, Moss said that he was at

Few Gardens the afternoon of the murders and saw Howard yelling up
to Doris’s upstairs window over money because she had “messed up”
people’s “money” and “packages.”

(Doc. 88-21 at 2.)

Howard told

her, “I’m going to kill you bitch,” to which Doris, who would not
let him in, said that he was “not going to do shit.”

(Id.)

Later

that evening at about 11:30 p.m. to 11:40 p.m., Moss’s statement
21

reflects, Moss saw Howard and his brother Kenny, with another woman
(who is described in some detail), leave Sharon Bass’s apartment;
all three went to the back of Doris’s apartment building, but the
female then came around and entered the front of the building.
(Id. at 3.)

At about 12:10 a.m., Moss saw Howard and Kenny “come

from around the back of Doris’s building,” and Howard was carrying
a small television and Kenny had what looked like a VCR.
4.)

(Id. at

Fifteen to twenty minutes later, he saw smoke from Doris’s

apartment.

(Id.)

Dowdy then testified that Gwendolyn Roper Taylor had told him
that while at a club “she herself had talked to Darryl Howard”
about “why had he killed and did that to Doris and Nishonda
Washington.”

(Doc. 72-1 at 381:16-21.)

When asked about the

videotaped interview with Angela Southerland, Dowdy testified that
he was interrupted by other officers for ten to fifteen minutes.
(Id. at 385:24-386:7.)

He denied feeding details to Southerland

and testified that she actually provided new information that he
did not know before interviewing her.

(Id. at 386:18-387:8.)

Dowdy added, on redirect, that Nishonda Washington had been away
from the apartment with her boyfriend for almost a week, returning
on the evening of November 26 –- the night prior to her murder.
(Id. at 423:8-19.)

He then stated that he never found evidence

that suggested that Howard had had sexual intercourse with either
of the victims, and that he did not investigate the murders as a
22

sexual assault case.

(Id. at 424:21-425:10.)

After the State rested, Howard’s girlfriend, Natasha Mayo,
testified first for the defense.

She acknowledged that Howard had

been looking for her at Doris’s apartment and was upset because he
knew that Doris encouraged her women friends to do sexual favors
for drugs, but Mayo said the event occurred two days before the
murders.

(Id. at 462, 485, 493.)

Mayo also said that Howard “sold

drugs for a living” and stated that she and Howard were in Few
Gardens to buy drugs and fled when they saw smoke coming from
Doris’s

apartment

trespass.

because

Howard

feared

(Id. at 466:24-467:13, 468:1-9.)

being

charged

with

Mayo also relayed how

Dowdy presented her with “fake warrants” charging her with the
arson and murders, laying them on the table as a threat to charge
her for the crimes.

(Id. at 477:3-481:22.)

When Dowdy testified

as a rebuttal witness, he confirmed that he had typed up warrants
but had not fully filled out the applications.
604:7.)

(Id. at 603:25-

He stated that, during the interview with Mayo, he never

touched the warrants or mentioned them to Mayo but had placed them
so they were clearly visible to her.

(Id. at 604:11-21.)

Howard testified in his own defense.

He admitted to having

words with Doris about Mayo -- he said two days before her murder
-- and acknowledged he was upset but denied threatening her.
at 511-13.)

(Id.

He also admitted he talked with Doris in front of her

house midday of her murder and that Doris said she “don’t do her
23

[Mayo] like that,” referring to her use of women to help get drugs.
(Id. at 513:1-13.)
the murder.

Howard was present in Few Gardens the night of

(Id. at 516:2-520:14.)

According to Howard, he was

with Mayo, his brother Kenny, and Sharon Bass; at about 12:30 a.m.
or 1:00 a.m., Bass sent him to get some more drugs.

(Id. at 517.)

He and Mayo went to an apartment near Doris’s apartment, got their
drugs from “the boys” (without going inside), but left when they
saw smoke coming from Doris’s window for fear of being arrested
for trespass.

(Id. at 517-19.)

They went back to Bass’s and for

the rest of the evening “s[a]t around and got high.”

(Id. at

522:3-7.)

(Id. at

Howard denied any involvement in the murders.

536:5-17.)
Howard recalled making statements to Officer Davis the next
day but denied

saying that Doris had killed herself; Howard

surmised that Davis “have [sic] a tendency to misunderstand people”
and added, “I mean I was kind of high and stuff.”
526:3.)

Howard denied ever talking to Taylor.

(Id. at 525:5-

(Id. at 531.)

When

asked about his interactions with Milton Smith, Howard testified
that Smith “kept asking [him] about Harvey been [sic] in Few
Gardens.

Harvey wasn’t in Few Gardens that I know of.”

534:13-16.)

(Id. at

Howard told Smith where he had been that night -–

with Kenny and not Harvey –- and then Smith “took that and he wrote
it the way he wanted to say it.”

(Id. at 534:18-20.)

He further

stated that Smith had asked him whether Harvey was in Few Gardens
24

that night, but that he did not write that question down in his
report.

(Id. at 535:3-9.)

Howard did acknowledge having told

Smith he was a “smart mother fucker.”

(Id. at 535:10-13.)

event, Howard denied ever confessing to the murders.

In any
(Id. at

554:1-12.)
On cross-examination, Howard testified he sold a $20 rock of
crack cocaine for a VCR and “boombox” for Bass the night of the
murders.

(Id. at 549:6-15.)

He also denied he was selling drugs

from Bass’s apartment, contradicting Mayo’s testimony that he was,
saying “[s]he don’t know what be going on.”

(Id. at 548:10-21.)

The State waived its opening argument, so Howard’s counsel
argued first.

He contended that Howard was high the night of the

murders and noted that Howard was present at Few Gardens to buy
and use drugs.

(Id. at 683-84, 691; see also id. at 503:6-7

(acknowledging Howard had been arrested in Few Gardens “maybe 70
times”).)

He pointed out the inconsistencies in the various

eyewitnesses’ statements as to what they claimed they saw just
before the murders, contending that the State’s case was built on
inherently

inconsistent

promise of reward money.

accounts

that

were

influenced

by

the

Apparently surprised by Rhonda Davis’s

testimony that she saw Howard answer the door at Doris’s just prior
to the murders, counsel commended Dowdy’s candor for acknowledging
that Davis never mentioned that in her statement to him.
681.)

(Id. at

He even said he had known Dowdy “for a number of years,”
25

and “[h]e’s a very nice guy.”

(Id. at 701:25.)

As to Southerland,

however, he flat our called her a “liar” and denied that Dowdy
told her what to say.

(Id. at 694:12-695:12.)

Counsel pointed

out the obvious lack of any DNA tie between Howard and the victims
in what he characterized as a sexual assault.
The State argued that the case was “never about sex” but was
about “money and drugs.”

(Id. at 738.)

If Howard was telling the

truth, the State argued, then every other witness had to be lying,
which was unlikely.

Counsel contended that the inconsistencies in

eyewitness testimony were understandable since Howard was such a
frequent trespasser at Few Gardens, but that they were not material
because it was the commonalities of the testimony that mattered.
Sutherland was said to be the “most important witness,” and the
State rebutted any claim that she was intentionally seeking to
wrongfully blame Howard by pointing out that she had to be arrested
to compel her attendance for trial as a material witness.
735:22-737:8.)

(Id. at

To rebut any claim that the New York Boys, not

Howard, committed the murders, the State pointed out that Howard
had acknowledged in his testimony that he had been shot five times
by the New York Boys, even though he denied working for them.

(Id.

at 734:22-735:21.)
Following almost a day of jury deliberations (Doc. 89-6 at
116:23-117:3), Howard was convicted of two counts of second degree
murder and one count of first degree arson, and he was sentenced
26

to 80 years of imprisonment. (Id. at 765:18-766:10, 777:8-778:23.)
In addressing the court, he continued to profess his innocence.
(Id. at 775:25-776:8.)
3.

Post-conviction Investigation

In 2009, pursuant to North Carolina law allowing a defendant
to request postconviction DNA testing, see N.C. Gen. Stat. §§ 15A269–270.1, Howard filed a motion to retest the rape kits for Doris
and Nishonda.

(Doc. 89-11.)

Dale Morrill, a prosecutor in the

Durham County District Attorney’s office, was assigned to Howard’s
motion for DNA testing.
2010,

Morrill

informed

(Doc. 89-13 at 140:5-15.)
DPD

–-

which

In February

maintained

the

physical

evidence from Howard’s criminal case –- about Howard’s DNA-testing
motion.

(Id. at 146:2-20.)

cooperate

with

Howard’s

After Morrill agreed to voluntarily

counsel

in

inspecting

the

physical

evidence (Doc. 89-15), a North Carolina Superior Court granted
Howard’s motion for DNA testing in September 2010, ordering DPD
and the State Bureau of Investigation (“SBI”) to prepare physical
evidence for testing (Doc. 89-16; North Carolina v. Howard, Nos.
92-CRS-28349, 92-CRS-28350, 92-CRS-28352, 2010 WL 10745832 (N.C.
Super. Ct. Sept. 8, 2010)).

The order identified Morrill as the

point of contact for the District Attorney’s Office.
¶¶ 6, 11.)

(Doc. 89-16

Among other things, the order required the SBI, DPD,

and District Attorney’s Office to inform Howard’s counsel of any
biological evidence related to the case, which must be preserved.
27

(Id. ¶ 17.)
The new DNA testing, which occurred in December 2010, again
conclusively excluded Howard as the source of the sperm found on
Nishonda Washington’s vaginal and rectal smears.
1.)

(Doc. 87-9 at

Testing on Doris Washington’s rape kit identified sperm that

had previously gone undetected.

(Id.)

Testing of this DNA

indicated that it came from a different man than the sperm found
from Nishonda’s rape kit and excluded Howard as the source.

(Id.

at 5.)
The North Carolina Superior Court ordered the SBI to compare
the DNA found in Doris’s kit with the FBI’s convicted offender DNA
database (“CODIS”) to identify the “actual perpetrator.”

(Doc.

89-17; North Carolina v. Howard, Nos. 92-CRS-28349, 92-CRS-28350,
92-CRS-28352, 2011 WL 12331548, at *1 (N.C. Super. Ct. Mar. 1,
2011).)

The database search identified Jermeck Jones, a convicted

felon, as a DNA match to the sperm found in Doris’s rape kit.
(Doc. 89-18.) SBI informed Scott Pennica, a sergeant at DPD, about
the match, and told him that Morrill was working on the case.
(Doc. 89-12.)

When SBI sent Pennica the lab report identifying

Jones as the DNA match, the report included a statement that the
DNA analysis was not considered complete until a DNA sample from
Jones was obtained and submitted to confirm the match.
18.)

(Doc. 89-

This statement also advised that the District Attorney’s

Office had told SBI it would not be pursuing the CODIS hit as a
28

criminal case.

(Id.)

According to Pennica, Howard’s case was the first instance in
which DPD had originally obtained a conviction and then received
post-conviction DNA evidence through CODIS showing that someone
else may have committed the crime. (Doc. 89-19 at 55:13-22; 60:2061:13.)

Because of the novelty of the case, Pennica took time to

read information about it, including the trial transcript.
at 54:21-25.)

(Id.

Pennica recognized that while the burden of proving

innocence rested with a defendant, it would reflect poorly on DPD
not to act so he notified his supervisors and ensured that his
investigators obtained the DNA from the potential suspect.
at 123:2-124:15.)

(Id.

Thus, he took seriously the need to find Jones

and obtain a DNA sample from him.

(Id. at 53:5-15.)

To help him,

Pennica tasked Michele Soucie, a DPD investigator, with finding
Jones and obtaining a DNA sample, in part because Soucie was good
at documenting her work.

(Id. at 59:4-60:3; Doc. 89-12 at 3.)

Pennica updated Soucie about what he had learned about Howard’s
case, and Soucie spoke with SBI regarding the recent testing of
the DNA samples.

(Doc. 89-26 at 44:5-25.)

Howard never received notice regarding the results of the new
DNA testing, so he filed a motion for disclosure in September 2011,
which the court granted (the “September 2011 Order”).
23.)

(Doc. 89-

Among other things, the order required the Durham District

Attorney’s Office to immediately share the name of the CODIS match
29

with

Howard

and

his

counsel

and

required

both

the

District

Attorney’s Office and DPD to share “any information it possesse[d]”
about the individuals identified via DNA-testing.

(Id. ¶ 14.)

At

his deposition in this case, Morrill testified that his regular
practice

was

to

inform

relevant

state

agencies

obligations they may have vis-à-vis a court order.
172:1-173:9, 176:4-23.)
never

served

the

(stipulation).)
order

(Doc.

about

legal

(Doc. 89-13 at

But Howard’s post-conviction counsel

September

2011

Order

on

DPD.

(Doc.

71

And Morrill has no recollection of reading the

89-13

at

249:14-250:3),

nor

did

he

remember

specifically telling Pennica or anyone at DPD about their legal
obligations under it (id. at 172:6-24).

However, he did remember

making certain efforts for his office to comply with it, such as
ensuring that the DNA match to Jermeck Jones was turned over to
Howard’s counsel.

(Id. at 249:6-250:22.)

Morrill recalled speaking with Pennica, his DPD contact on
Howard’s case, once or twice around the time of the order (id. at
256:13-24); Pennica likewise remembered having conversations with
Morrill around the same time (Doc. 89-19 at 62:4-24).

However,

both Soucie and Pennica maintain that they never received or knew
about the September 2011 Order during this time period.

(Doc. 78-

3 at 138:14-25, 140:16-141:8; Doc. 78-4 at 97:15-98:3, 99:2-5.)
In the meantime, Soucie had begun preparing a search warrant
to obtain a DNA sample from Jones.
30

(Doc. 89-21.)

On December 14,

2011, Jones was arrested on a separate outstanding warrant and was
taken into DPD custody.

Upon learning of Jones’s arrest, Soucie

applied to a magistrate for a search warrant to obtain a DNA sample
from Jones. (Doc. 89-26 at 33:5-17, 41:13-20.) Soucie and Pennica
hoped to interview Jones to see if they could uncover the truth
about the Washington murders.

(Doc. 89-19 at 60:5-10, 79:2-6.)

Both officers participated in Jones’s interview, or attempted
interview, which was videotaped.
50:4-51:8.)

(Id. at 81:5-24; Doc. 89-26 at

At that time, officers obtained a buccal DNA sample

from Jones.

(Doc. 89-26 at 79:9-11.)

Although a technician

obtained the sample from Jones, Soucie ensured that the sample was
sent to the SBI for testing.

(Doc. 78-4 at 83:1-20.)

When told that his DNA sample was for a murder, Jones stated
that he had never murdered anyone.

(Doc. 89-29 at 6:5-6.)

Jones

refused to waive his Miranda15 rights and, as Pennica put it,
“lawyered up.”

(Doc. 78-3 at 68:24-69:5.)

Jones did claim that

he did not know Doris Washington but that Nishonda had been his
girlfriend.

(Doc. 89-29 at 8:12-17.)

He told the officers that

he had had sex with Nishonda and had no idea why his DNA was found
in Doris, with whom he denied ever having sex.
17:7.)

15

(Id. at 16:21-

When he was left alone in the interview room, Jones made

Miranda v. Arizona, 384 U.S. 436 (1966).

31

phone calls to unidentified individuals.
recording

device

in
In

conversations.16

the
one

room’s

call,

Unbeknownst to him, a

thermostat

Jones

said

that

captured
he

was

his
being

interviewed about “the other Shonda and her mama,” and that he had
nothing to do with the murders, and he wondered aloud, “How the
fuck my name come up?”

(Id. at 10:13-25.)

However, the only

statements Soucie wrote down from Jones’s interview was that Jones
had said he “had nothing to do with” the murders, and that
“Nishonda was his girlfriend but he never slept with her mom.”
(Doc. 89-20 at 5.)

Because Jones had invoked his right against

self-incrimination, Soucie and Pennica did not discuss the case
with him further.

(Id.)

According to Pennica, the interview with Jones was the last
thing he did regarding Howard’s
(Doc. 89-19 at 111:19-112:6.)

postconviction investigation.

Soucie testified that she wrote up

her report and submitted all relevant documents, including a copy
of Jones’s interview, to the DPD records department, “like I was
told to do.”

(Doc. 89-26 at 80:7-11; Doc. 78-4 at 79:5-17.)

She

stated that nobody, including Pennica, told her to take any action
beyond turning her reports over to the records department.
78-4 at 84:11-85:3.)
received

from

the

(Doc.

Her understanding from the information she
CODIS

notification

16

was

that

the

District

According to Soucie, there were “signs everywhere” indicating that
interviews would be recorded. (Doc. 89-26 at 50:13-24.)

32

Attorney’s Office “wasn’t pursuing anything with it,” so all she
had to do was submit her report to the records department.

(Id.

at 85:3-5, 86:22-87:4; Doc. 89-18.)
The Durham District Attorney’s Office depended on DPD –- here,
Soucie and Pennica –- for any relevant updates and actions DPD had
taken in regard to Howard’s case. (Doc. 89-13 at 267:11-24; 274:4275:12.)

However, neither Soucie nor Pennica told Morrill or

anyone else at the District Attorney’s Office about the interview
with Jones or the buccal swab they had taken from him, nor did DPD
further investigate Jones following the interview.
111:19-113:1.)

(Doc. 89-19 at

Because he had never worked on a case like this,

Pennica said he believed SBI, who handled the DNA analysis, would
contact the District Attorney’s Office with the results.
111:21-112:6.)

He further

(Id. at

said that he expected to receive

direction from the District Attorney’s Office regarding the next
steps DPD should take on Howard’s case, but he received none.
at 112:7-15.)

(Id.

Soucie and Pennica claimed to never have received

notice of the September 2011 Order, so they claim they did not
know they had an obligation to turn over evidence relating to
Howard’s case.
SBI reported in June 2012 that Jones’s DNA from the buccal
swab matched the DNA recovered from Doris Washington’s rape kit.
(Doc. 87-14.)

This report was sent to DPD.

(Id. at 3.)

The

record is unclear as to when Howard and his counsel learned of
33

this evidence, but it appears that Howard learned of it shortly
thereafter.

However, because Howard’s post-conviction counsel’s

contact regarding the DNA testing was with the District Attorney’s
Office, and because DPD never informed the District Attorney’s
Office about the interview with Jones, Howard would not learn about
the interview until July 2016.

(Doc. 87-3 ¶¶ 129-34.)

Howard filed a motion for a new trial in March 2014 based on
the new DNA evidence.

A North Carolina Superior Court judge

granted the motion in May.

State v. Howard, Nos. 92 CRS 28349,

25350, 28352, 2014 WL 10715439 (N.C. Super. Ct. May 27, 2014).
Following the State’s appeal, the North Carolina Court of Appeals
vacated the trial court’s order in April 2016 and remanded the
case for an evidentiary hearing.
(N.C. Ct. App. 2016).

State v. Howard, 783 S.E.2d 786

At this time, the recording of Jones’s

interview in 2011 was handed over to the Durham District Attorney’s
Office and to Howard.

The superior court evidentiary hearing was

held in August 2016.

Jermeck Jones was called to testify, but he

invoked his Fifth Amendment right against self-incrimination when
asked what he knew about the murders and if he had sexually
assaulted Doris Washington.

(Doc. 87-3 ¶ 65.)

In a lengthy

December 2016 order, the superior court found that the DNA evidence
showed two different men had assaulted Doris and Nishonda –- Jones
had sexually assaulted Doris and an unidentified man, not Howard,
had sexually assaulted Nishonda.
34

(Id. ¶¶ 183-86.)

The court

further determined that, pursuant to the September 2011 Order, DPD
“was required immediately to provide” Howard’s counsel with any
information it found regarding Jermeck Jones and that Jones’s
interview fell under the purview of the September 2011 Order. (Id.
¶¶ 129-34.)

Furthermore, the court found that the DNA evidence

conclusively excluded Howard as one of the men who committed the
murders.17

(Id. ¶ 185.)

The court vacated Howard’s conviction,

ordered him released from custody, and ordered a new trial.
at 26.)

(Id.

The State elected not to retry Howard for the murders.
4.

Deposition Testimony

As part of the present lawsuit, Howard deposed (some 25 years
later)

several

of

the

investigating the murders.

witnesses

Dowdy

interviewed

while

Howard reports he was unable to locate

Southerland, and Jackson was murdered not long after the trial.
Some of those who were deposed testified generally that Dowdy
falsified or misrepresented the statements they gave him to further
implicate Howard in the murders.
Gwendolyn

Roper

Taylor

testified

that

Dowdy’s

report

inaccurately stated that Howard directly told her that he had

17

Howard emphasizes the superior court’s finding that Howard is innocent
of the murders. (Doc. 87-3 ¶¶ 115, 199.) Such a finding is not necessary
to, and indeed may be inconsistent with, the court’s award of a new
trial. In any event, there is a dedicated statutory process by which a
convicted defendant may establish his factual (as opposed to legal)
innocence by applying to the North Carolina Innocence Inquiry Commission.
See N.C. Gen. Stat. §§ 15A-1460 et seq. As of the present, there is no
indication Howard has done so.

35

killed the Washingtons.

(Doc. 88-13 at 72:16-24.)

She testified

that all she could remember was that she had heard a man say he
had “killed the bitch,” but she now said it could have been any
man in the club who made that statement.

(Id. at 57:20-25.)

She

claimed she intended to say that at Howard’s trial, but cited her
nervousness and youth for her failure to do so.

(Id. at 119:12-

22.)
At his deposition, Kelvin Best testified that he never told
Dowdy he had seen Howard leave the back door of Doris Washington’s
apartment because it was physically impossible for him to have
seen the back door from where he was standing that night.
88-9 at 184:8-185:23.)

(Doc.

However, he acknowledged that he may have

assumed that Howard came out of the back door of her apartment
when he saw him coming out the side of her apartment building.
(Doc. 80-12 at 233:9-14.)
Eric Lamont Shaw testified that he never had any personal
knowledge of Howard being involved with the murders and never would
have represented otherwise to Dowdy.

(Doc. 87-6 at 12:1-13:4.)

He claimed he never told Dowdy about being present during a New
York Boys gang meeting in which Howard was ordered to kill Doris
Washington.

(Id. 11:12-25.)

He further said that he only told

Dowdy about the rumors he had heard -- and made clear they were

36

only rumors.18

(Id. at 11:8-11, 83:7-22.)

Dwight Moody Moss was deposed twice.

He testified that when

Dowdy approached him to discuss what he had seen the night of the
murders, Moss simply signed the statement Dowdy presented without
reading it.

(Doc. 88-24 at 37:17-38:10.)

Moss said he did so to

get Dowdy to leave him alone, that he knew nothing about the
murders, and that he told Dowdy that he knew nothing.
38:12-13, 38:21-39:25.)

(Id. at

Howard argues that the statement Moss

signed was written ahead of time by Dowdy and contained false
testimony that Moss had seen Howard tell Doris Washington he was
going

to

kill

her

and

that

he

had

seen

Howard

around

the

Washingtons’ apartment minutes before the fire was detected.
Both of Moss’s depositions ended prematurely when he became
so agitated and threatening that Howard’s counsel felt compelled
to terminate them.19
20.)

(Doc. 80-15 at 66:7-18; Doc. 80-16 at 51:19-

After the first deposition, a magistrate judge ordered Moss

to participate in a continued deposition “in an orderly manner.”

18

Shaw, who was in jail when Dowdy interviewed him, also stated during
his deposition that Dowdy had offered to get him out of jail in exchange
for a statement implicating Howard. (Doc. 87-6 at 10:22-11:7.) Dowdy
testified in his deposition that when such offers are made, they are to
be recorded in police reports (Doc. 87-2 at 27:1-21), but his police
report from Shaw’s interview contained no such record of an offer, nor
did it mention that Dowdy had interviewed Shaw in jail (Doc. 87-8 at 2829).
19

A magistrate judge recently denied Howard’s motion to continue Moss’s
deposition under the supervision of an armed deputy because of
insufficient efforts to do so before the discovery period closed. (Doc.
110.)

37

(Doc.

54

at

2.)

Even

then,

Moss’s

second

prematurely after Moss became antagonistic.
20.)

deposition

ended

(Doc. 80-16 at 51:19-

As a result, Dowdy’s counsel was unable to examine Moss.

Moss, according to his deposition testimony, suffers from bipolar
disorder and schizophrenia, but he has been unable to treat those
conditions for at least half a year, if not more.

(Doc. 80-15 at

8:1-22; Doc. 80-16 at 19:4-12.)
Sections of Moss’s depositions reflect erratic, inconsistent,
and sometimes false testimony.

For example, Moss stated that he

never testified at Howard’s trial (Doc. 80-15 at 43:17-20, 45:2146:3; Doc. 80-16 at 41:2-8), even though he unquestionably did
(Doc. 72-1 at 238-66).

During one deposition, Moss told Howard’s

counsel to hurry through her questions so he could “get it over
with because [he didn’t] know” the answers, saying that he would
simply answer “no” to all of her questions.
17.)

(Doc. 80-15 at 65:15-

In his second deposition, he stated that he could not

remember what he said in his prior deposition just two months
earlier (Doc. 80-16 at 33:4-16) and that he could not remember
what occurred in his interaction with Dowdy in 1991 (id. at 33:1829).

When asked whether he earned money by providing information

to the police during the 1990s, Moss became extremely agitated,
accusing Howard’s counsel of calling him a rat.
49:1.)

The

argument

that

ensued

resulted

termination of Moss’s second deposition.
38

in

(Id. at 48:10the

premature

B.

Procedural History

On May 24, 2017, Howard initiated this action.

(Doc. 1.)

The individual Defendants jointly moved to dismiss certain causes
of action for failure to state a claim.20
was granted in part and denied in part.

(Doc. 13.)

(Doc. 22.)

The motion

See Howard v.

City of Durham, 1:17cv477, 2018 WL 1621823 (M.D.N.C. Mar. 31,
2018).

The court dismissed negligence claims brought against

Soucie and Pennica in their individual capacities and dismissed
all

official

capacity

claims

brought

against

the

individual

Defendants as duplicative of the Monell21 claim Howard alleged
against the City of Durham.

Id. at *9.

The current motions for summary judgment followed (Docs. 75,
77, 79, 81), as well as the City of Durham’s motion for judgment
on the pleadings as to Howard’s state constitutional claims (Doc.
73).

Following briefing and the video-conference hearing held on

July 7, 2020, the motions are ready for decision.
II.

ANALYSIS
A.

Legal Standard

Summary

judgment

is

appropriate

where

the

pleadings,

affidavits, and other proper discovery materials demonstrate that

20

E.E. Sarvis was originally named in the complaint but has since been
dismissed by Howard. (Doc. 20.)
21

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

39

no genuine dispute as to any material fact exists and the moving
party is entitled to judgment as a matter of law.

Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The

party seeking summary judgment bears the burden of initially
demonstrating the absence of a genuine dispute as to any material
fact.

Celotex, 477 U.S. at 323.

“Once the moving party meets its

initial burden, the non-moving party may not rely upon mere
allegations or denials contained in its pleadings, but must come
forward with some form of evidentiary material allowed by Rule 56
demonstrating the existence of a genuine issue of material fact
requiring a trial.”

Ruffin v. Shaw Indus., Inc., 149 F.3d 294,

301 (4th Cir. 1998) (per curiam) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986); Celotex, 477 U.S. at 324).
When considering the motion, the court must view the evidence
and all reasonable inferences therefrom in the light most favorable
to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587-88 (1986).

It “cannot weigh the

evidence or make credibility determinations.”

Jacobs v. N.C.

Admin. Off. of the Cts., 780 F.3d 562, 568 (4th Cir. 2015).

There

is no issue for trial unless sufficient evidence favoring the nonmoving party exists for a reasonable factfinder to return a verdict
in its favor.

Anderson, 477 U.S. at 249-50, 257.

Thus, the issue

to be determined on a summary judgment motion is “not whether . . .
the evidence unmistakably favors one side or the other, but whether
40

a fair-minded jury could return a verdict for the plaintiff on the
evidence presented.”

Id. at 252.

“If the evidence is merely

colorable, or is not significantly probative, summary judgment may
be granted.”

Id. at 249-50.

Indeed, the nonmoving party may not

create a genuine issue of material fact “through mere speculation
or the building of one inference upon another.”

Beale v. Hardy,

769 F.2d 213, 214 (4th Cir. 1985) (citing Barwick v. Celotex Corp.,
736 F.2d 946, 963 (4th Cir. 1984)).
With this standard in mind, the motions will be addressed as
they relate to each Defendant.
B.

Dowdy

Most of Howard’s claims are brought against Dowdy, DPD’s lead
investigator in the Washington murders. Dowdy argues that Howard’s
claims fail to withstand scrutiny and should be dismissed.
contends

that

violation

of

Dowdy
42

violated

U.S.C.

§

his

1983

constitutional

under

a

variety

of

Howard

rights

in

theories:

fabricating witness statements; committing multiple violations of
Brady v. Maryland, 373 U.S. 83 (1963); malicious prosecution; and
failing to perform an adequate investigation.

He also alleges

state

negligence,

tort

claims

for

malicious

prosecution,

and

intentional infliction of emotional distress.
1.

Federal Constitutional Violations

Howard alleges that much of Dowdy’s misconduct occurred in
relation to the witnesses he interviewed for Howard’s trial.
41

This

necessitates that the court analyze the federal constitutional
claims, where relevant, in regard to Dowdy’s alleged actions with
each witness.
a.

Fabrication of Evidence

Howard alleges that Dowdy fabricated false statements from
Kelvin Best, Dwight Moody Moss, Gwen Roper Taylor, Eric Lamont
He also alleges

Shaw, Roneka Jackson, and Angela Southerland.22
that,

in

order

to

negate

the

relevance

of

the

DNA

evidence

excluding Howard as the source of sperm found from Nishonda
Washington’s rape kit, Dowdy fabricated evidence that Nishonda had
been with her boyfriend up until the night of the murders and that
she had been sexually active with that boyfriend.
“The Fourteenth Amendment protects against deprivations of
liberty accomplished without due process of law.”

Massey v.

Ojaniit, 759 F.3d 343, 354 (4th Cir. 2014) (internal quotation
marks omitted).

The Fourth Circuit has recognized a due process

right not to be deprived of liberty as a result of an investigating
officer’s fabrication of evidence.
F.3d 274, 282-83 (4th Cir. 2005).

See Washington v. Wilmore, 407
Such a claim requires a showing

of “proof that [the investigator] fabricated evidence and that the

22

Howard concedes that he cannot proceed on his fabrication claim against
Dowdy as to statements he recorded from Rhonda Davis because she is
deceased and thus could not be deposed for this lawsuit. (Doc. 87 at
55 n.20.) Howard has also clarified that he is not pursuing a fabrication
claim against Dowdy in relation to the recorded statements of Terry Suggs
(who reported that Doris used and sold crack cocaine). (Id.; Doc. 87-8
at 7.)

42

fabrication

resulted

liberty.”

Id.

fabricated

at

in

the

282.

“deliberately

deprivation

The
or

false

with

of

[the

evidence

reckless

plaintiff’s]

must

have

disregard

for

been
the

truth.” Massey, 759 F.3d at 357 (quoting Miller v. Prince George’s
Cty., 475 F.3d 621, 627 (4th Cir. 2007)).

This may be demonstrated

by showing that the investigator “entertained serious doubts as to
the truth of [the] statements or had obvious reasons to doubt the
accuracy of the information he reported.”

Id. (quoting Miller,

475 F.3d at 627); see, e.g., Washington, 407 F.3d at 285 n.2
(Shedd, J., concurring) (noting that “the issue . . . is not simply
whether the justice system failed [the plaintiff], but instead
whether any such failure is the result of deliberate or reckless
misconduct by law enforcement”).
To satisfy the causation element of a fabrication claim,
Howard must show that his conviction and subsequent imprisonment
“resulted

from

[the

officer’s]

Washington, 407 F.3d at 283.

fabrication

of

evidence.”

Causation in constitutional tort

cases requires a showing of “both but-for and proximate causation.”
Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012).

Thus, Howard

must show that Dowdy’s fabrications of witness statements actually
caused his conviction, as well as demonstrate that his “conviction
was a reasonably foreseeable result of [the officer’s] initial act
of fabrication.”

Washington, 407 F.3d at 282.

43

A complicating factor in the analysis, as is borne out in the
shifting testimony of several witnesses, is that the scene of the
murders, Few Gardens, was known for heavy drug use and, as Howard
himself argues, “residents were known to make bogus reports to the
police.” (Doc. 87 at 9.) Many of the witnesses, including Howard,
Southerland, Best, and Roper, were either addicted to, or actively
using, drugs such as crack cocaine.

(Id. at 12 n.4.)

At least

four witnesses -- Jackson, Shaw, Moss, and Southerland -- were
under arrest, in jail, or facing criminal charges.

(Id.)

Jackson

was a minor, age 17, when she first spoke with Dowdy, and others
were homeless or “strapped for cash,” according to Howard.
Howard

argues

that

because

of

these

(Id.)

vulnerabilities,

“any

reasonable investigator would understand it was imperative to
carefully vet each of these witnesses.”

(Id.)

To the extent this

argues a negligence standard, the test here is one of deliberate
or reckless falsification.
Howard also argues that witnesses who claimed they observed
him commit the murders or heard him confess to them afterwards
must have been influenced by Dowdy because, Howard claims, he has
now been proven factually innocent.
precisely

the

case,

as

Howard

was

44

Of course, that is not
granted

a

new

trial,

not

exonerated.23

It is entirely possible that several witnesses

affirmatively chose to lie and to implicate Howard in the murders
for their own gain or for the drug-trafficking New York Boys gang.
To the extent these witnesses were deposed, their testimony came
under the shadow of the court order granting Howard a new trial
following the revelation that the DNA found in Doris Washington
was traced to Jermeck Jones.

Another entirely possible scenario

is that the witnesses were in fact telling the truth to Dowdy and
at trial and now seek to distance themselves from the case by
recanting their prior sworn testimony.
i.

Kelvin Best

When Dowdy first spoke to Kelvin Best in December 1991, he
reported that Best told him that on the night of the murders he
saw Howard “come from the side” of Doris Washington’s apartment
building with his brother Kenny fifteen minutes before emergency
services arrived to respond to the fire.

(Doc. 87-8 at 24.)

year later, in October 1992, Dowdy spoke with Best again.

A

Dowdy

wrote that Best told him he saw Howard and Howard’s brother “come
out the back door of Doris Washington’s [apartment]” a few minutes
before fire trucks arrived.

(Id. at 43-44.)

23

Howard argues that

Howard’s repeated references to his exoneration relies on a finding
in the North Carolina state court’s 25-page order granting his motion
for appropriate relief that he was “factually innocent of the murders.”
(Doc. 87-3 ¶ 199.)
Such a finding was not necessary to the court’s
order (apparently drafted and presented by Howard’s post-conviction
counsel), which is reflected by the fact that Howard was granted a new
trial, not exonerated.

45

this change in Best’s testimony –- that he had seen Howard exit
Doris’s back door instead of coming from the side of her building
-– was fabricated by Dowdy.
At Howard’s trial, Best testified that he had seen Howard and
his brother come “[r]ight behind Doris’s -- right out the back
door of Doris [Washington’s] house.”

(Doc. 72-1 at 228:22-25.)

He was apparently not cross-examined as to what he claimed he saw,
but only as to his physical location at the time he saw Howard
that night.

(Id. at 231:19-233:1.)

In his deposition, however,

Best tried to walk away from his trial testimony, claiming he never
would have told Dowdy that he had seen Howard come out the back
door of Doris’s apartment because it was not physically possible
for him to have seen her back door from his vantage point.
88-9 at 184:21-185:15.)

(Doc.

While Best said that the information

contained in his second statement was false (id. at 214:4-7), he
attributed it to his assumption based on where he had seen Howard
come

from

(Doc.

80-12

at

183:14-184:14,

337:17-25).

Best

acknowledged in his deposition that Dowdy did not pressure him to
provide inculpatory information or offer any money or benefit for
providing information; rather, Best claims he did his best to tell
Dowdy and the jurors the truth.

(Id. at 333:5-340:8.)

Thus, there

is no evidence that Dowdy’s allegedly fabricated statement caused
Best to testify at trial that he saw Howard come out the back door
of Doris Washington’s apartment.
46

Even in the light most favorable to Howard, this evidence
fails to support a claim that Dowdy deliberately or recklessly
falsified or fabricated evidence that caused Howard’s conviction.
Best testified at trial, without evidence of influence or coercion,
to what he claimed to have observed.
56

(witness’s

positive

See Massey, 759 F.3d at 355-

identification

of

defendant

at

trial

without improper influence negated claim that officer’s fabricated
pretrial identification caused plaintiff’s conviction).

Perhaps

a more probing inquiry might have questioned the accuracy of Best’s
statements given his precise physical location.

But even then, it

was Best, not Dowdy, who made an assumption about where Howard had
come from that night when he was seen.

Because Best concedes his

error, there is no credibility question here.
Howard argues (as he does with other witnesses) that the court
must credit the witness’s deposition testimony at this stage
whenever it conflicts with prior testimony and that it therefore
prevents summary judgment.

(Doc. 87 at 59 n.21; Doc. 115.)

It is

true the court must view the evidence in the light most favorable
to Howard, but that does not mean the court must ignore the
witness’s

testimony

under

oath

at

trial

where

there

is

no

indication of coercion or involuntariness in that testimony.

To

hold otherwise would undermine the sanctity of the oath and the
trial

process,

subsequently

to

thus
testify

permitting
contrary
47

any
to

witness

his

or

her

who

chooses

sworn

trial

testimony to support a fabrication claim. But witnesses may change
their testimony for reasons independent of any improper influence.
Howard cites several cases to support his novel argument, but these
cases merely apply the accepted proposition that a court cannot
weigh conflicting testimony; they do not extend as far as he
contends.

Cf. Jacobs, 780 F.3d at 570 (reversing summary judgment

because the court accepted some witness testimony over that of
others); Ilunga v. Holder, 777 F.3d 199, 207 (4th Cir. 2015)
(noting simply that adverse credibility determinations can be
drawn from inconsistencies and omissions); Shaw v. Stroud, 13 F.3d
791, 804 (4th Cir. 1994) (finding that the trial court did not
abuse its discretion in refusing to strike a deposition that
allegedly contradicted a statement the witness previously gave as
well as affidavits of other witnesses); United States v. Crawford,
121 F.3d 700, 1997 WL 532495, at *3 (4th Cir. 1997) (per curiam)
(unpublished opinion) (noting that contradictory testimony among
trial witnesses raised credibility issue for the jury to decide).
Rather, to attack sworn trial testimony at this stage there must
be some evidence or basis from which a jury could reasonably
conclude that the law enforcement officer improperly influenced
the witness or had serious doubts about the truthfulness of his or

48

her testimony.

See Gilliam v. Sealey, 932 F.3d 216, 240 (4th Cir.

2019); Massey, 759 F.3d at 357.24

None is shown as to this witness.

Thus, Best’s testimony will not be considered as the basis
for any alleged fabrication.
ii.

Gwendolyn Roper Taylor

Dowdy initially contacted Gwendolyn Roper Taylor by phone and
then met with her in person for an interview.
9.)

(Doc. 72-1 at 380:3-

She did not provide a written statement, and thus Dowdy’s

report is the only tangible evidence of the meeting.
at 27-28.)

(Doc. 87-8

Dowdy’s report reflects that she said that while at a

club Howard told her he had killed Doris Washington.

(Id. at 27;

Doc. 87-2 at 369:20-23.) At Howard’s trial, however, she testified
that while at a crowded club (technically a liquor house, which is
a private home where alcohol is sold and consumed) sometime after
the murders but before the end of that year, she overheard someone
ask Howard about Doris Washington being killed, and she heard
Howard say, “Yeah, I killed the bitch.”
334:22.)

(Doc. 72-1 at 333:17-

She testified that Howard also said that “the next one

to get in his way he’ll mess them up too.”

24

(Id. at 335:4-7.)

On

It is for this reason that Howard’s reliance on Sales v. Grant, 158
F.3d 768 (4th Cir. 1998), is misplaced. There, the Fourth Circuit found
that the district court had erroneously credited a witness’s trial
testimony that directly conflicted with that same witness’s testimony
at a separate trial. Id. at 778-79. However, the issue here is not
merely whether a witness who testified at Howard’s trial has made a
conflicting statement at a more recent deposition. Rather, it is whether
the witness’s later testimony demonstrates that Dowdy caused Howard’s
conviction by fabricating statements.

49

cross-examination, Taylor said she did not know who Howard was
speaking

to

and

conversation.

did

not

remember

the

(Id. at 336:11-337:7.)

month

or

day

of

the

She also could not say

whether Howard was being truthful or had made the statement in
jest.

(Id. at 337:6-20.)

But she added, “whatever he said you

know I heard it and I told them that and that was it.”
336:16-17.)

Taylor

acknowledged

that

Dowdy’s

(Id. at

report

had

incorrectly stated that Howard had spoken directly to her, but she
denied any insinuation that she was testifying from his report but
rather insisted that she was testifying “by what I remember.” (Id.
at 338:4-23.)25
At her deposition in 2019, Taylor gave a different version
from her trial testimony.

She said she told Dowdy that she had

heard an unidentified man tell someone else that he had killed
Doris Washington.

She maintains that she told Dowdy “it could

have been anybody” who made the statement in the club (Doc. 88-13
at 79:1-7) and that she had intended to testify to that effect at
Howard’s trial but failed to do so because she was young and
nervous (id. at 119:12-22).

However, she denied that Dowdy had

offered her anything in exchange for her statement, and likewise
denied that he threatened her if she failed to provide a statement
or to testify.

(Doc. 80-11 at 112:7-17.)

25

She confirmed that when

When Dowdy testified at trial, he maintained that his recollection
recorded in his report was correct. (Doc. 72-1 at 402:12-20.)

50

she testified at Howard’s trial, she did her best to tell the
truth.

(Id. at 116:23-117:7.)

Dowdy argues that there is no evidence that he pressured
Taylor to provide inculpatory information or ever offered money
for her testimony.

He contends the record shows that Taylor told

the truth to the best of her ability when she spoke to him and
when she testified at Howard’s trial.
Whether or not she testified truthfully at trial, Taylor
testified unequivocally that she heard Howard admit to the murders.
See Massey, 759 F.3d at 355-56.

Her attempt to backslide, after

Howard was granted a new trial, undermines her oath at trial.

As

with Kelvin Best’s testimony, there is no evidence that Dowdy’s
allegedly fabricated statement (that Howard confessed directly to
Taylor) caused Taylor to testify at Howard’s trial in the manner
she did.

She testified clearly that she heard Howard himself

confess to killing Doris.

The discrepancy between whether Howard

made the statement to her or to someone else does not negate her
trial testimony that she heard Howard say he had killed Doris
Washington.
At oral argument, Howard contended that Taylor’s deposition
testimony requires permitting the claim to proceed to trial, citing
Gilliam v. Sealey, 932 F.3d 216 (4th Cir. 2019).
misconstrues that case.
enforcement

officers’

But Howard

There, the Fourth Circuit denied the law
motion

for
51

summary

judgment

because

of

evidence that the officers had met with the plaintiffs’ 16-yearold friend multiple times and made him take a polygraph test in
which he declared that he did not know anything about the crime.
Id. at 228.

The officers subsequently “marked [the friend] as a

suspect in the case” and ordered an analysis of his fingerprints.
Id.

Only then did the friend change his story and testify at

plaintiffs’ trial that one of the plaintiffs had confessed to
committing the crime.

Id.

The Fourth Circuit found that this, in

addition to other evidence of the officers’ bad faith,26 was
sufficient to create a fact issue as to whether the friend’s
confession was fabricated or coerced.

Id. at 240.

cited by Howard stand for a similar proposition.

Other cases

See, e.g., White

v. Smith, 696 F.3d 740, 757 (8th Cir. 2012) (allowing a § 1983
fabrication claim to proceed when evidence demonstrated “that
Defendants

coached

and

manipulated”

Defendants’ theory of the case”).

witnesses

“into

adopting

Here, there is no evidence of

coercion or manipulation, only an allegation of fabrication.

The

question is not merely whether the witness lied or the justice
system failed.

There must be evidence that Dowdy intentionally or

26

A witness testified at deposition that she had told officers she had
observed a different suspect attack the murder victim on the night of
the murder, but the officer’s interview notes for this witness did not
reflect this testimony.
The officers had also requested that this
alternative suspect’s fingerprints be tested against prints on a beer
can found at the crime scene, but then withdrew this request three days
before the defendant’s trial. Gilliam, 932 F.3d at 228.

52

recklessly falsified Taylor’s statements to which she testified at
trial.

See Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014)

(noting that “testimony that is incorrect or simply disputed should
not be treated as fabricated merely because it turns out to have
been

wrong”).27

Taylor’s

statements

contained

in

Dowdy’s

investigative report therefore cannot form the basis of a claim of
fabrication.
iii. Dwight Moody Moss
Dwight Moody Moss is a schizophrenic who suffers from bipolar
disorder.

He testified at trial that around 4:00 p.m. on the

afternoon of the murders he saw Howard arguing with Doris over
money and heard Howard say that she “messed up the money, you
messed up the drugs.”

(Doc. 72-1 at 242:22-23.)

27

He also heard

To the extent Howard argues that a fabricated witness statement could
have caused his conviction because the false statement coerced a witness
to testify in conformance with the statement itself, the cases he relies
upon are distinguishable. Jackson v. City of Cleveland, 925 F.3d 793,
817 (6th Cir. 2019); see also Bermudez v. City of New York, 790 F.3d
368, 375-76 (2d Cir. 2015). In Jackson, law enforcement officers asked
a 12-year-old witness to identify in a lineup suspects who had committed
a shooting. Jackson, 925 F.3d at 804. Because the 12-year-old did not
identify the two suspects that the officers believed had committed the
crime, they brought the child into a room, accused him of lying, called
him racial slurs, and then forced him to sign a statement that he had
failed to identify the suspects because he feared retaliation.
Id.
Another officer coached the child before trial. Id. at 805. The Sixth
Circuit found that the plaintiffs’ fabrication claim survived in part
because the witness “would have faced a real threat of prosecution for
perjury had his [trial] testimony conflicted with his earlier
[fabricated] signed statement.”
Id. at 817.
Here, there is no
indication that Dowdy pressured or coerced Taylor to provide false
statements in the first place, and no evidence that he later coached or
coerced her to testify in conformance with an allegedly fabricated
statement.

53

Howard tell Doris, who was in her upstairs window, “you will get
yours” and “I’ll kill you.”

(Id. at 243:5-15.)

He further

testified he saw Howard and another male come from around the
backside of Doris’s apartment that evening with what appeared to
be a television and VCR.

(Id. at 255:9-13.)

Shortly thereafter,

he said, he saw smoke coming from Doris’s apartment window.
at 256:2-4.)

(Id.

When his memory faltered during his testimony, Moss

was presented with the statement Dowdy recorded from his interview
and which Moss signed.

Moss told the jury that he told Dowdy the

truth, was “quite sure” Dowdy gave him the opportunity to read the
statement, looked over the statement before signing it, and then
signed it.

(Id. at 248:25-250:19.)

On cross-examination Moss

testified, “I know what I know and know what I heard,” but conceded
he could not at that time separate the two.

(Id. at 265:23-25.)

In his deposition, however, Moss claimed he told Dowdy he knew
nothing about the murders, did not read his statement before
signing it, and signed it only to “get out of there.”
24 at 38:2-13.)
Howard’s trial.

(Doc. 88-

He also claimed no memory of ever testifying at
(Doc. 80-15 at 43:3-20; 45:6-:9.)

Dowdy contends

the court should disregard Moss’s deposition testimony in its
entirety on the grounds Moss is incompetent to testify.
Every

witness

is

deemed

competent

but

may

be

deemed

incompetent to testify if he “does not have personal knowledge of
the matters about which he is to testify, that he does not have
54

the capacity to recall, or that he does not understand the duty to
testify truthfully.”

United States v. Lightly, 677 F.2d 1027,

1028 (4th Cir. 1982).

“Whether the witness has such competency is

a

matter

for

determination

by

the

examination as he deems appropriate.”
F.2d 104, 112 (4th Cir. 1984).

trial

judge

after

such

United States v. Odom, 736

See United States v. Cassidy, 48

F. App’x 428, 445 (4th Cir. 2002) (per curiam) (upholding district
court’s decision that a witness was competent to testify even
though he exhibited “erratic” and “bizarre” behavior during his
testimony).

The trial court is accorded “great latitude” in

determining the competency of a witness to testify.

Odom, 736

F.2d at 111.
Dowdy argues that Moss’s inconsistent (and sometimes flatly
incorrect) responses, as well as his irascible demeanor during
questioning, sufficiently demonstrate his incompetency.

Dowdy

argues that the court should disregard his entire deposition
testimony, including the material portions in which he denied
telling Dowdy what he had seen the night of the murders.
The record consists only of excerpts from Moss’s deposition
testimony.

No doubt Moss’s testimony may be in jeopardy, but

absent the opportunity to examine the witness, it is premature for
the court to decide at this time whether Moss is incompetent to
testify.

While a hearing is not required in every case in order

to make this decision, Odom, 736 F.2d at 111, it is necessary here.
55

Cf. United States v. Whittington, 26 F.3d 456, 466 n.9 (4th Cir.
1994) (noting that a district court’s decision whether a witness
is

competent

witness”).

comes

after

an

“examination

of

a

prospective

The court cannot tell on this record whether Moss is

incompetent, combative, unwilling, or some combination of the
three.
Dowdy’s only challenge to the merits of Moss’s deposition
testimony is contained in a single sentence that concludes it
“amounts to mere conjecture or speculation of a sort that cannot
defeat a summary judgment motion.”

(Doc. 80 at 37.)

Dowdy

provides absolutely no analysis, so the court will not attempt to
discern what he means.
rejected

at

this

time

deposition testimony.

Consequently, Dowdy’s argument will be
as

it

relates

to

Dwight

Moody

Moss’s

Whether Moss is incompetent, and if not, to

what extent he would be permitted to testify or his incomplete
deposition testimony could be admissible must await another day.
iv.

Eric Lamont Shaw

According to Howard, Dowdy falsely reported that Eric Lamont
Shaw told him that he was present at a meeting of New York Boys
gang members in which the gang directed Howard to kill Doris
Washington to clear all debts that Howard owed the gang.

Dowdy

recorded

which

this

statement

in

his

investigation

report,

indicates that Dowdy documented Shaw’s statement on June 2, 1992.
(Doc. 87-8 at 28-29.)

Shaw testified at his deposition that he
56

never made such statements to Dowdy because he never witnessed
such a meeting.

(Doc. 87-6 11:12-12:6.)

Rather, he only told

Dowdy about the rumors he had heard about what had happened.

(Id.

at 14:10-15:9.)
Shaw

never

introduced.

testified

Dowdy

at

argues

trial,

that

nor

this

was

his

precludes

a

statement
finding

of

causation, since the jury could never convict Howard based on
evidence that was never presented to it.

Howard argues that

causation can still be shown if fabricated evidence not presented
to a jury was “used to obtain evidence later shown to the jury” or
“used as [the] basis for a criminal charge.”

Jackson v. City of

Cleveland, 925 F.3d 793, 816 (6th Cir. 2019)

(alteration in

original); Halsey, 750 F.3d at 294 n.19.
Howard has not offered any indication of how Shaw’s testimony
was used to obtain evidence that was then presented to the jury,
nor has he demonstrated (as counsel conceded at the hearing) how
Shaw’s testimony was used to charge Howard for the murders.
117 at 46:2-4.)
contains

no

(Doc.

Dowdy spoke with Shaw in June 1992, but his report

additional

action

Southerland in October 1992.

until

Dowdy

(Doc. 87-8.)

interviewed

Angela

Southerland was not

arrested pursuant to any information Shaw provided.

(Id. at 30.)

Furthermore, after Dowdy interviewed Southerland, he followed up
with

other

witnesses

to

account, but not with Shaw.

seek

confirmation

of

Southerland’s

Thus, even assuming Dowdy fabricated
57

the contents of Shaw’s interview, Howard has not shown that it was
used to obtain more evidence or to charge Howard with the murders.
Therefore, Shaw’s statements cannot be considered in assessing
whether Dowdy’s fabrications may have caused Howard’s conviction.
v.

Angela Southerland

Howard contends that Dowdy fabricated statements from Angela
Southerland by stopping the taping of her interview and improperly
feeding her inculpatory information so that she would give false
answers that implicated Howard in the murders. Southerland’s taped
interview is approximately 10 minutes long, but Dowdy’s notes
reflect that the interview took 46 minutes.

The recording is

important because Southerland is the only witness the prosecution
offered as having been present in Doris’s apartment at the time of
the murders, and it was played in its entirety to the jury when
Southerland claimed to know nothing about the murders.

Howard

points to the missing recorded portions of the interview and
Dowdy’s shifting explanation for it as evidence of fabrication.
At trial, Dowdy testified that he could not fully explain the
timing discrepancy.28

He surmised that he must have written down

the wrong time or been interrupted by other officers when he
stopped

the

recording.

(Doc.

28

72-1

at

385:16-386:8,

401:15-

Howard’s contention that he was hampered by Dowdy’s failure to disclose
the fact he stopped the tape is unpersuasive, as his trial counsel
clearly cross-examined Dowdy at trial on this very point.

58

402:11.)

Dowdy acknowledged that stopping the tape was against

his normal practice.

(Doc. 87-2 at 338:14-20.)

And Paul Martin,

then-head of DPD’s Organized Crime Division, testified that DPD
trained officers to record the entire interview but that whenever
a recording needed to be stopped, to explain the reason for doing
so.

(Doc. 87-7 at 36:10-37:5.)

When asked about the discrepancy,

Dowdy testified that when he “first initially went in to interview”
Southerland he was interrupted for 10 to 15 minutes by personnel
from the vice unit.

(Id.)

the taping at that point.

It is unclear whether he had started
Regardless, a 10- to 15-minute delay

does not explain the 30 to 35 minutes missing from the tape.
In his deposition, Dowdy testified that he may have stopped
the interview to “go[] back over what [Southerland] was saying” or
“to clarify some information she may have been telling [him].”
(Doc.

87-2

at

337:13-14,

338:1-2.)

He

argues

that

at

his

deposition some 24 years after the fact he was merely speculating
why it took 46 minutes to complete Southerland’s interview and
that such speculation is too thin a reed to support a fabrication
claim.
Howard’s pursuit of this claim is hampered by the fact that
the recording of the interview is not in the record, nor was it
made a part of the trial record.

So, one cannot discern when, if

anytime, the tape was stopped during the interview.

Moreover,

Southerland has not been found, nor was she deposed, so she cannot
59

add context to the interview.

Unlike other witnesses, however,

she did testify at trial at one point that she was not present
during, and knew nothing about, the murders.

On the other hand,

at one point she did adopt her recorded statement as true.

(Doc.

72-1 at 305:6-15.)
Howard’s claim therefore rests on the 36-minute discrepancy
between

the

length

of

the

interview

and

the

length

of

the

recording, Dowdy’s concession that he may have stopped the tape to
probe

Southerland’s

inconsistent

answers,

his

inconsistent

explanations for stopping the tape in violation of his own practice
and DPD training, Dowdy’s concession that he “probably” told her
she could be charged with murder or being an accessory to murder
(Doc. 87-2 at 400:19-24), and Southerland’s testimony that, at
times,

adopted

and

contradicted

the

statement.

Dowdy

also

acknowledged that Southerland’s statement contained details that
only someone who was either present or had reviewed the autopsy
reports would know, such that if she was not present then Dowdy
would have been the likely source of that information.
2 at 340:11-25.)

(Doc. 87-

Viewed in the light most favorable to Howard as

the nonmoving party, this evidence creates a genuine issue of
material

fact

Southerland’s

whether
statement

Dowdy
or

fabricated

recklessly

any

offered

portion
her

of

testimony

knowing or having serious doubts it was likely false in light of
all the other available evidence at the time.
60

Massey, 759 F.3d at

357 (liability may be demonstrated by showing that the investigator
“entertained serious doubts as to the truth of [the] statements or
had obvious reasons to doubt the accuracy of the information he
reported”).
Therefore,

Dowdy’s

motion

for

summary

judgment

as

to

Southerland’s testimony as the basis of a claim of fabrication
will be denied at this time.29
vi.

Roneka Jackson

Howard argues that Dowdy fabricated a statement from Roneka
Jackson

after

Southerland.

he

had

completed

his

interview

with

Angela

Dowdy recorded two statements from Jackson regarding

the murders: one in the days immediately following the murders in
1991 and another roughly a year after the murders in 1992.

At the

time of the murders, Jackson was 17 years old.
In the first interview, which was conducted on November 30,
1991, and taped, Jackson said she observed Howard and Doris in an
argument at about 10:00 p.m. the night of the murders, which was
precipitated by a shooting by some “white boys” and that Howard
said he was coming back and that “[w]e going to kill her and her
daughter.”

(Doc. 87-16 at 12.)

After that, about midnight, she

29

It is not at all clear how, in the absence of Southerland’s testimony
or a copy of the audio recording, Howard will demonstrate in what manner
Southerland’s recorded statement was allegedly altered, as Howard has
not addressed how a jury would determine when the recording was stopped
and how that may have affected Southerland’s subsequent statements. This
issue will need to be addressed further by the parties.

61

saw Howard exit Doris’s apartment with a television and a VCR,
followed by his brother, Bruce, whom she knew as a drug dealer,
and put the items in a car.

(Id. at 13-17.)

It was about 15

minutes later that she saw smoke coming from Doris’s apartment.
(Id. at 22.) When asked for more detail, she explained that Howard
was upset that his girlfriend, who was in Doris’s apartment, had
been trading sexual favors for drugs and Doris would not let her
out or Howard come in.

(Id. at 18.)

She said that she was

providing this information of her own free will, without any
promise or expectation and, when pressed, said the information was
based on what she saw, not what she heard.

(Id. at 21-24.)

Dowdy spoke with Jackson a second time nearly a year later,
on November 11, 1992, at the DPD after Dowdy had interviewed Angela
Southerland.

(Id.

at

44.)

His

report

states

that

Jackson

identified Southerland from a six-person photo array as “the person
she had seen on the night of 11/27/91 along with Darryl Howard”
(id.) even though she did not report in her taped interview that
she saw Southerland that night.

She also identified out of a six-

person photo array Howard’s brother Harvey (not Bruce, as she
reported in her taped interview) as the person she had seen with
Howard that night.

(Id.)

At Howard’s trial, Jackson testified that she lived a street
over from Few Gardens and had known Doris and her daughter for
about 2 to 3 years.

She also knew Howard to be a friend of Doris’s
62

and that Doris sold cocaine, which both Howard and Doris used.
(Doc. 72-1 at 169:2-171:15.)

Jackson testified that sometime in

the afternoon of the murders, she observed (from about 12 feet
away) Howard looking for his girlfriend, who was at Doris’s
apartment, but Doris would not let him in.
174:3-4.)

(Id. at 172:14-173:4,

Upset, Howard yelled to Doris’s upstairs window and

said he was going to kill her and her daughter, and then left.
(Id. at 173:15-175:23.)

About 10:00 p.m. that evening, she saw

Howard and his brother, Bruce (“I think that’s his name”) leave
Doris’s apartment with a television and go to a car.
176:13-177:23.)

(Id. at

She then saw Howard use a nearby payphone,

followed by smoke from Doris’s apartment.

(Id. at 177:24-178:25.)

Fire trucks came about 15 minutes later.

(Id. at 179:7-9.)

She

said she saw a female she recognized as Howard’s girlfriend at
Doris’s apartment that evening, but she could not remember whether
she left with him.

(Id. at 180:7-18.)

On cross examination, she

acknowledged multiple prior convictions, a poor memory, and that
Howard seemed to be acting casually, and not in any hurry, when he
left Doris’s apartment.

(Id. at 183:10-187:10, 188:6-190:8.)

She

also said she had not talked to Dowdy or anyone else in preparation
for her testimony.
Howard

argues

(Id. at 191:15-22.)
that

discrepancies

in

Jackson’s

various

retellings of the night of the murders are sufficient for a
reasonable jury to conclude that Dowdy fabricated Jackson’s second
63

statement

because

it

is

highly

unlikely

that

Jackson

would,

unprompted, change her story to adhere so closely to Southerland’s
version without Dowdy’s intervention.

Furthermore, Howard argues,

Jackson’s trial testimony appeared to revert back to her original
1991 statement –- she identified Bruce, not Harvey, as the brother
she saw with Howard that night, and she could not identify Howard’s
girlfriend.

Dowdy

argues

that

such

discrepancies

are

not

sufficient to support a fabrication claim and also contends that
in the absence of any post-trial testimony by Jackson, it invites
only speculation as to whether Dowdy did anything to improperly
influence or fabricate Jackson’s testimony.
Because Jackson was murdered after the trial, Howard was
unable to depose her for this lawsuit.

A careful review of

Jackson’s recorded statement, second interview notes, and trial
testimony, however, reveal an insufficient basis for a finding of
fabrication.

Jackson’s trial testimony materially followed her

November 30, 1991, recorded statement, which was given before Dowdy
took Southerland’s statement on October 10, 1992.

Howard does not

argue that Dowdy fabricated this first statement.

Moreover, while

Howard claims that Jackson did not implicate Howard’s girlfriend
in this first interview (but rather in the subsequent interview
when she identified Southerland in a photo array as the woman she
saw Howard with that night), her first interview in fact reflected
that she knew that Howard’s girlfriend was at Doris’s apartment
64

that night.

Howard’s argument to the contrary (Doc. 87 at 63)

puts too literal a reading on Dowdy’s deposition testimony, as
Dowdy clearly acknowledged that Jackson did not say she saw anyone
“with” Howard or his brother but that Jackson had stated a female
had been in the apartment with Doris (Doc. 87-2 at 297:2-24).
While Jackson was not expressly asked in her first interview if
she had seen the girlfriend, it can reasonably be inferred that
she may have in order to have stated that the girlfriend was in
Doris’s

apartment.

This

is

consistent

with

Jackson’s

trial

testimony that she saw the girlfriend, whose name she did not know,
at Doris’s apartment that evening.
Jackson’s

second

statement

led

In any event, nothing from
to

any

trial

testimony;

specifically, Jackson never identified Southerland at trial.

This

is important because, while Howard points to Dowdy’s concession
that he “needed” Jackson’s identification of Southerland (Doc. 87
at 25), the issue on this claim is Howard’s conviction, not his
arrest.

Gilliam, 932 F.3d at 234, 240-41 (analyzing separately

whether fabrication of evidence was sufficient to support a Fourth
Amendment malicious prosecution claim and a Fourteenth Amendment
due process fabrication claim); see also Halsey, 750 F.3d at 291
(“The boundary between Fourth Amendment and Fourteenth Amendment
claims is, at its core, temporal.

. . . . [T]he Fourth Amendment

forbids a detention without probable cause.

65

But this protection

against unlawful seizures extends only until trial.” (internal
citations omitted).)
Furthermore, the fact Jackson identified Howard’s brother
Harvey, not Bruce, in the second interview is insufficient for a
fabrication claim, because she testified at trial that she saw
Bruce.

The discrepancy was fodder for cross-examination to attack

Jackson’s credibility, but it was not exploited.

Moreover, there

is no indication that any of Jackson’s statements or testimony was
anything but voluntary; she acknowledged as much in her first
statement (which Howard does not challenge), and she was not crossexamined on that point at trial.

On this record, especially where

Jackson is now unavailable, it would be merely speculative for a
jury

to

conclude

that

Dowdy

improperly

influenced

Jackson’s

statements or testimony. See Halsey, 750 F.3d at 295 (“A witness’s
misidentification should not be regarded as a fabrication in the
absence of persuasive evidence supporting a conclusion that the
proponents of the evidence were aware that the identification was
incorrect, and thus, in effect, offered the evidence in bad
faith.”).
For these reasons, Dowdy’s interviews of Jackson cannot serve
as the basis for a claim of fabrication.
vii. Nishonda Washington’s Boyfriend and her
Sexual Activity
Howard also argues that once the DNA evidence came back

66

clearing Howard of any sexual assault of Nishonda Washington, Dowdy
falsely advised the prosecutor that he had evidence that Nishonda
had been staying with her boyfriend up until the evening before
her murder, ruling out sexual assault as part of the crimes and
thus accounting for the presence of exculpatory DNA evidence from
her rape kit tests.
Dowdy points to three examples in his report that show he did
not fabricate such evidence.

He reported that Ella Moore told him

Nishonda had been away for four days and returned on Sunday -- two
days before the murders (Doc. 87-8 at 9-10); that Alice Gordon
told him that she had not seen Nishonda for a week prior to the
murders (id. at 10); and that Howard himself had told DPD officers
that Doris was angry Nishonda had been seeing an older man (id. at
8).

Dowdy further testified at his deposition that he had asked

neighbors about Nishonda’s whereabouts and was told that she had
been gone for four or five days with her boyfriend and then
returned home the day of the murders.

(Doc. 80-5 at 171:16-21.)

He also points to a contemporaneous newspaper article reporting on
the murders that stated “[n]eighbors said Nishanda [sic] . . . had
run away from home recently, but returned Tuesday,” as evidence
that Dowdy’s interviews with neighbors were corroborated.
80-7 at 1.)

(Doc.

At trial, Dowdy testified (without objection)30 that

30

The admissibility of this testimony at trial, a contested fact issue,
is unclear.

67

Nishonda had been away for a week with her boyfriend and had
returned on November 26, the evening before the murders.
72-1 at 423:8-19.)

(Doc.

Dowdy further points out that, after he

submitted his investigatory report but continued to investigate
the

whereabouts

of

Nishonda’s

boyfriend

at

the

prosecutor’s

request, he did not submit his handwritten notes on the matter
because his investigation turned up no new evidence to report to
the prosecutor.
Dowdy

argues

that

he

was

not

required

to

record

every

interview or discussion he had with neighbors. While true, Dowdy’s
deposition indicates that he took a broad, inclusive approach as
to what he ought to put into his investigative report in this case.
(Doc. 87-2 at 88:16-90:11.)
conversations

with

He suggests that he may have recorded

neighbors,

conducted

at

the

prosecutor’s

request shortly before trial, in contemporaneous handwritten notes
(id. at 186:22-189:17), but those notes are missing.

He also

incorrectly claimed that his report contained witness testimony
that Nishonda had returned the day of the murder.
11.)

(Id. at 171:7-

He stated that if information was not contained in his

report, it meant he did not believe it was sufficiently relevant
to the investigation.

(Id. at 188:7-23.)

Although there is evidence that Dowdy received information
that Nishonda had an older boyfriend and had been away with him
for a few days, Dowdy’s report contains no indication how he
68

learned that Nishonda had returned the afternoon before her murder.
The timing of Nishonda’s return is important because the jury was
told that the sperm found in Nishonda’s rape kit had been deposited
within approximately 24 hours of the autopsy, which took place at
10:00 a.m. the day after the murders.

(Doc. 72-1 at 80:17-25.)

Furthermore, Dowdy knew that Nishonda had reportedly said she was
taking a bath the night of the murders, which may have reduced the
presence of any sperm previously left by a boyfriend, and Dowdy
knew this 24-hour window was of critical importance to his theory
of the case (Doc. 87-2 at 184:17-185:13); if Nishonda in fact
returned to the apartment on Sunday, two days prior to the murders,
whether she had spent a few days with her boyfriend would be
irrelevant, and the recent sexual activity of a 13 year-old under
these circumstances would be hard to explain.

Dowdy’s report,

while showing that Nishonda had been away for some time and had
been seeing an older man, only states that Nishonda returned on
Sunday –- outside the 24-hour window.

Nowhere does the report

state that she returned Tuesday evening, hours before the murders;
yet that is precisely what Dowdy told the prosecutor, who relied
on that at trial.

(Doc. 72-1 at 423:8-19.)

If Dowdy had found

witnesses to support his statement that Nishonda had returned only
the day of the murders, that would be different from what his
report

stated

and

thus

would

be

new

evidence

warranting

amendment to his report, according to Dowdy’s own standard.
69

an

Dowdy properly notes that he cannot be held liable for his
testimony at Howard’s trial.

Washington, 407 F.3d at 283.

But it

is his alleged false assurances to the prosecutor that he had fully
investigated

the

boyfriend

issue

and

had

evidence

Nishonda

returned home the day of the murders that is the basis of the
fabrication claim.

Id. (citing Jones v. City of Chicago, 856 F.2d

985, 994 (7th Cir. 1988)) (“[A] prosecutor's decision to charge,
a grand jury's decision to indict, a prosecutor's decision not to
drop charges but to proceed to trial –- none of these decisions
will shield a police officer who deliberately supplied misleading
information that influenced the decision.”).

Because the only

evidence in Dowdy’s report about when Nishonda returned home from
her boyfriend would tend to prove the opposite of what Dowdy told
the prosecutor, a genuine issue of material fact exists as to
whether Dowdy properly reported or fabricated this evidence.
*

*

*

With these potential bases for fabrication in mind, the
question is whether Howard can satisfy the causation element of a
fabrication claim by showing that his loss of liberty –- i.e., his
conviction and subsequent imprisonment -- “resulted from [the
officer’s] fabrication of evidence.”

Washington, 407 F.3d at 283.

This requires a showing of “both but-for and proximate causation.”
Evans,

703

F.3d

at

647.

Howard

70

must

demonstrate

that

his

conviction was a reasonably foreseeable result of Dowdy’s alleged
acts of fabrication.

Washington, 407 F.3d at 283.

The court finds that, viewing the evidence in the light most
favorable to Howard, a reasonable jury could conclude that Dowdy’s
alleged fabrications, if believed, both actually and proximately
caused his conviction.

Angela Southerland’s testimony provided a

critical link: it placed Howard at the scene of the crimes and
detailed how he actually committed them.

Howard was a frequent

visitor to Few Gardens, but she was the only witness who claimed
to have been present in Doris’s apartment during the murders and
observe Howard’s attack of Doris (including causing her chest
injury that was the actual cause of death).

(Doc. 87-8 at 36.)

The prosecutor acknowledged in his closing argument (and later in
his deposition) that she was the “most important” –- indeed the
“key” -- witness whose testimony was necessary for a conviction in
an otherwise heavily circumstantial case.
24;

Doc.

88-6

at

189:13-191:2.)

And

(Doc. 72-1 at 735:22Dowdy’s

alleged

false

assurances to the prosecutor that he had evidence that Nishonda
had been with her boyfriend up until the evening of the murders,
in light of his written report to the contrary, provided a key to
linking Howard to the murders while explaining away any sexual
assault and lack of Howard’s DNA found in the minor victim.
Without Dowdy’s assurances on this issue, the prosecution’s main
theory of the case was significantly impaired.
71

While a close

question given the other evidence against Howard, it was reasonably
foreseeable that the jury would have found reasonable doubt had
the alleged fabrications not occurred.

Therefore, Dowdy’s motion

for summary judgment as to the fabrication claim will be denied.
b.

Brady-Based § 1983 Claims

Howard brings a § 1983 claim against Dowdy, arguing that on
at

least

three

occasions

disclosable under Brady:

he

suppressed

exculpatory

evidence

(1) evidence that Roneka Jackson was a

confidential informant for the DPD while also deeply embedded with
the New York Boys gang; (2) exculpatory statements that witnesses
gave him; and (3) his alleged knowledge that he lacked evidence
that Nishonda Washington had returned from her boyfriend’s Tuesday
night but nevertheless investigated the murders as a sexual assault
case.
In Brady v. Maryland, the Supreme Court held that when the
prosecution

suppresses

evidence

that

is

“favorable

to

[the]

accused” and is “material either to guilt or to punishment,” the
accused’s due process rights are violated. 373 U.S. 83, 87 (1963).
The Fourth Circuit has held that a § 1983 claim based on Brady
violations may be brought against police officers who fail to
disclose exculpatory evidence to the prosecution.

Barbee v.

Warden, Md. Penitentiary, 331 F.2d 842, 846-47 (4th Cir. 1964).
Such claims apply equally to impeachment evidence as well.
v. United States, 405 U.S. 150, 154 (1972).
72

Giglio

To make out a Brady

claim against Dowdy under § 1983, Howard must present evidence
that “(1) the evidence at issue was favorable to him; (2) the
[o]fficer[] suppressed the evidence in bad faith; and (3) prejudice
ensued.”

Owens v. Balt. City State’s Att’ys Off., 767 F.3d 379,

396-97 (4th Cir. 2014) (footnote omitted).

Prejudice exists “if

there is a reasonable probability that the jury would have reached
a different result had the evidence been properly disclosed.”
at 397 (internal quotations omitted).

Id.

However, the issue is not

merely “whether the defendant would more likely than not have
received a different verdict” if the evidence had been disclosed
but “whether, in the absence of disclosure, the defendant received
a fair trial, understood as a trial resulting in a verdict worthy
of confidence.”

Id. (internal quotations omitted).
i.

Roneka Jackson’s Confidential Informant
Status and New York Boys Gang Connection

Howard argues that Dowdy purposefully withheld information
from the prosecutor (and thus from Howard) that Roneka Jackson was
a confidential informant for the DPD and was connected to the New
York Boys gang.

According to Howard, Jackson was embedded with

the New York Boys gang because she sold drugs for them and had a
child with one of their members.

He also notes that, at the same

time, she served as a paid confidential informant for the DPD and
had provided the department information and tips related to various
crimes.

Thus, he contends, she “had significant motives to point

73

the police away from the true perpetrators and towards Howard,”
satisfying both the DPD and the New York Boys.

(Doc. 87 at 70.)

Howard argues that had the jury learned of her informant status,
a reasonable probability existed that it would have given Jackson’s
testimony far less credence.

Dowdy does not dispute Jackson’s

connections with DPD and the New York Boys gang and acknowledges
that they were never disclosed to Howard, but he maintains that he
never knew about these connections at the time of Howard’s trial.
(Doc. 80-5 at 268:5-269:3.)

He further argues that, in any event,

Jackson’s credibility was already sufficiently attacked based on
her extensive criminal record and the fact that she was entitled
to a monetary reward for her information leading to Howard’s
arrest.

(Doc. 80 at 33.)

At oral argument on the present motions, Dowdy’s counsel
acknowledged that Jackson’s status as a paid informant was Brady
material.

(Doc. 117 at 33:17-22.)

See Banks v. Dretke, 540 U.S.

668, 698 (2004); see also Robinson v. Mills, 592 F.3d 730, 737-38
(6th Cir. 2010).

Her connection to the New York Boys gang is

similarly favorable to Howard, as it provides a reason why she
would lie.

See Amado v. Gonzalez, 758 F.3d 1119, 1133 (9th Cir.

2014) (finding that a witness’s affiliation with a rival gang was
“clearly” material under Brady); United States v. Sanchez, No. 07
CR 0149, 2009 WL 5166230, at *9-10 (N.D. Ill. Dec. 22, 2009)
(finding that the government was obliged to disclose that a key
74

witness had been a member of street gang and had an extensive
arrest record). Thus, the issue is whether Dowdy knew of Jackson’s
status in these respects.
Jackson had two “handlers” at DPD who knew of her status:
Betty Boswell and Robby Davis.

Boswell did not work on the

Washington murder investigation; Davis did but died thereafter, so
he was never deposed.

(Doc. 87 at 24 n.12.)

According to Boswell,

Jackson became a confidential informant in 1994 (Doc. 80-13 at
84:11, 84:23-85:6), roughly two years after she gave her second
statement to Dowdy on November 11, 1992 (Doc. 87-8 at 44) but prior
to Howard’s criminal trial, which began on March 27, 1995 (Doc.
72-1 at 1).31 Jackson was paid for information she provided. (Doc.
87-7 at 71:7-12, 75:20-22.)
Dowdy testified at his deposition that he never knew of
Jackson’s confidential informant status or involvement with the
New York Boys gang until after Jackson was brutally murdered by
members of that gang a few months after the trial.

31

(Doc. 80-5 at

Howard claims that he has presented evidence that Jackson was an
informant prior to 1994. Boswell indicated that Jackson had informally
provided information to her about various crimes in the area for a few
years such that she may have been colloquially considered an “informant”
(Doc. 88-16 at 185:9-25, 262:11-16), but she did not officially register
as a confidential informant with the DPD until 1994 (Doc. 80-13 at 84:8,
84:23-85:6). This is consistent with the deposition testimony of Paul
Martin, head of DPD’s Organized Crime Division, that Jackson was an
informant when she was 17 years old and was an informant for four years
(from age 17-21). (Doc. 88-6 at 74:21-75:22.) However, the key question
is whether Dowdy knew of her informant status at the time Jackson
testified at trial, at which time there is no dispute she was an
informant.

75

269:6-21.)

He also denied knowing that Jackson had provided a

statement regarding a different murder case two weeks before
Howard’s trial.

(Id. at 279:18-281:24.)

Boswell testified that she never would have told Dowdy that
Jackson

was

a

confidential

informant,

even

if

Jackson

were

testifying in one of Dowdy’s cases, as any interaction with other
DPD departments was the responsibility of the head of the Organized
Crime Division.

(Doc. 80-13 at 167:13-22, 193:12-14, 194:8-24.)

The only employees of DPD she would have informed about Jackson’s
status would have been Jackson’s co-handler –- Robby Davis –- and
Paul Martin, who at the time was the head of DPD’s Organized Crime
Division, which handled confidential informants.
14.)

(Id. at 193:12-

She directed her confidential informants not to tell others

about their status in order to maintain their safety.
144:13-145:20, 151:7-21.)

(Id. at

According to Boswell, a confidential

informant’s status was not widely known throughout DPD, even if
that informant was involved in other DPD cases. Boswell disclaimed
any

knowledge

identification.

of

how,

if

at

all,

Martin

handled

informant

(Doc. 88-16 at 212:7-20.)

Paul Martin, as head of DPD’s Organized Crime Division, was
privy to the DPD’s registry of confidential informants.
16 at 167:14-25; Doc. 80-14 at 51:3-17.)

(Doc. 88-

He was not one of Dowdy’s

direct supervisors and did not oversee or review Dowdy’s work or
actions, as the two worked in different departments.
76

(Doc. 80-14

at 18:21-23.)

He explained that confidential informants typically

did not testify at trials because their informant status would
have to be disclosed, thus risking both the informants’ personal
safety and their use to the DPD as an informant.
22.)
within

(Id. at 50:5-

But, as he further testified, the different departments
DPD,

including

his

own,

would

cooperate

information when cases or crimes overlapped.

by

sharing

(Id. at 51:20-52:3.)

To that effect, Martin explained, his division detectives were
trained to cooperate with other divisions, including homicide,
where Dowdy worked, to share pertinent information safely and
securely.

(Id. at 52:4-53:13.)

Specifically, Martin agreed that

his division’s detectives “were expected to share any information
they had relating to their confidential informants who may have
any information about a homicide.”

(Id. at 53:9-13.)

This

included Martin’s understanding that if one of his detectives
learned that his informant was going to testify in a homicide case,
he was expected to disclose the informant’s status to the homicide
detective in charge of that witness.

(Id. at 54:22-55:13.)

When

presented with evidence of Boswell’s direction to Jackson to speak
to an investigator in the homicide division of DPD about providing
information in a different murder case, Martin described it as
“typical” of how DPD worked together with shared witnesses.
87-7 at 77:2-24.)

(Doc.

Thus, Martin understood that either Boswell or

Robby Davis would have told Dowdy that Jackson was a confidential
77

informant for DPD had they learned she was to testify at Howard’s
trial.

(Doc. 87-7 at 86:24-87:11.)

In fact, Martin testified

that Davis would have been obliged to tell Dowdy about Jackson’s
status under these circumstances, which is why, he said, DPD had
certain “policies and procedures” about “tracking” in place. (Doc.
80-14 at 50:14-51:2.)
have done that.”

And Martin “fully expect[ed] Davis would

(Doc. 87-7 at 87:9-11.)

Of course, Davis was

directly involved with the Washington homicide investigation,
having

been

the

officer

who

originally

arrested

Howard

for

trespassing the morning after the murders and who reported that
Howard repeatedly said Doris had killed Nishonda and then herself.
(Doc. 87-8 at 7-8.)

And, importantly, he testified at Howard’s

trial on the same day that Jackson resumed and completed her
testimony that she had begun the day prior.
282:20.)

(Doc. 72-1 at 267:1-

According to Martin, Dowdy also worked on other cases

involving the New York Boys in which Jackson was involved, so
Martin believed that Dowdy would have been aware of Jackson’s
status as to those cases as well.

(Doc. 87-7 at 87:12-24.)

Dowdy argues that this claim “disregards [his] testimony that
he was unaware of Jackson’s status” at the time.
14.)

(Doc. 105 at 13-

He contends that Martin’s testimony should be disregarded

because

(1)

Martin

had

no

personal

knowledge

about

Dowdy’s

knowledge of Jackson’s confidential informant status and merely
speculated about what Dowdy should or should not have known, and
78

(2) Martin’s testimony does not qualify as evidence of a usual
practice of DPD as to confidential informants under Rule 406 of
the Federal Rules of Evidence.

Dowdy has also submitted an

affidavit from DPD Captain Joseph Kelly, who worked at DPD during
Howard’s trial and is the current head of the Organized Crime
Division.

Kelly

investigation,

states

it

was

that

DPD

during

policy

the

to

Washington

limit

a

murder

confidential

informant’s status to the head of the Organized Crime Division and
the officer who registered the informant.
18-21.)

(Doc. 80-4 ¶¶ 10-14,

None of these is sufficient to warrant granting summary

judgment.
Kelly’s affidavit conflicts with Martin’s testimony of how
(or if) an informant’s identity would be disclosed
officers within DPD.

to other

At this stage, the evidence must be viewed

in the light most favorable to Howard.

As such, the court cannot

accept Dowdy’s invitation to find his and Kelly’s testimony as
more credible, and there is sufficient evidence from which a jury
could conclude that Dowdy would have been informed of Jackson’s
status as a paid DPD informant and her connection to the New York
Boys gang.
Division

Were a jury to believe that DPD’s Organized Crime

required

handlers

to

inform

case

detectives

of

an

informant’s status, as Martin testified, it could conclude that at
least Robby Davis must have known about it, especially since he
testified as a witness in Howard’s trial, and likely would have
79

informed Dowdy.32

The same is true as to Jackson’s involvement

with the New York Boys gang.

Boswell testified that she knew that

Jackson had a child with a member of the New York Boys and that
the information Jackson provided was tied specifically to the New
York Boys’ drug operation.

(Doc. 88-16 at 184:3-20.)

She also

understood that “Roneka was pretty imbedded with the New York
Boys,” which was precisely why Boswell wanted information from
her.

(Id. at 226:16-17.)

Boswell knew this when she signed

Jackson as an informant, including the fact she was dating a member
of the gang.
different

(Id. at 227:16-21.)

murder

case,

Furthermore, Dowdy worked on a

contemporaneous

with

his

work

on

the

Washington murders, in which he worked with detectives from the
Organized Crime Division.

Martin testified that Dowdy would have

cooperated with the Organized Crime Division detectives such that
he would have been made aware of any DPD informants who had
pertinent information regarding the case and other cases with
Jackson involving the New York Boys gang.
68:24.)

(Doc. 87-7 at 63:1-

Dowdy also supervised a separate murder case in which

32

Dowdy’s contention that Martin’s testimony fails under Federal Rule
of Evidence 406 is misplaced.
Dowdy relies on a line of cases that
requires evidence of a routine practice of an organization to contend
that Howard has failed to demonstrate that DPD regularly disclosed an
informant’s identity to a homicide detective.
See, e.g., Wilson v.
Volkswagen of Am., Inc., 561 F.2d 494, 511-12 (4th Cir. 1977). Those
cases apply the rule where the existence of the practice is demonstrated
only through experience, and not by any rule. Here, the factual dispute
is over the existence of an internal rule or policy within the Organized
Crime Division or DPD, not a routine or regular practice. Thus, the
issue is distinguishable from Rule 406 cases.

80

Jackson provided two statements to DPD in 1994, prior to Howard’s
trial.

Martin testified that as a supervisor on this homicide

investigation, Dowdy would have been told by Organized Crime
Division

detectives

about

the

identities

of

confidential

informants who provided information in that case -– including
Jackson.

(Id. at 78:22-83:18.)

Thus,

although

the

evidence

is

conflicting,

there

is

sufficient evidence which, if believed, would permit a jury to
reasonably conclude that Dowdy knew of, but did not disclose,
Jackson’s status as a paid DPD informant and New York Boys gang
affiliate at the time of her testimony. Dowdy’s motion for summary
judgment on this claim will therefore be denied.

The suppression

of such evidence, if true, would have substantially undermined the
fairness of the trial.
ii.

Exculpatory Witnesses Statements

Howard contends that Dowdy suppressed exculpatory statements
from witnesses.

Alternatively, even if witnesses did not give

exculpatory statements, Howard contends that Dowdy’s suppression
of their answers (by fabricating false statements instead) could
have been used to impeach Dowdy at trial.
instances.

Howard cites two

First, he points to Eric Lamont Shaw’s deposition

testimony that he told Dowdy that he only knew rumors about the
Washington murders, yet Dowdy reported that Shaw had been present
at a New York Boys gang meeting in which the gang ordered Howard
81

to kill Doris Washington.

Even though Shaw did not testify at

trial, Howard argues that Dowdy’s misconduct in falsifying Shaw’s
testimony and failing to truthfully record his statements could
have been used to impeach Dowdy and his reliability at trial.
Second, based on Dwight Moody Moss’s deposition testimony, Howard
claims that Dowdy suppressed Moss’s statement that he did not know
what happened on the night of the murders, never read the written
statement Dowdy presented to him, and claimed to know that Kelvin
Best was paid a reward.

Dowdy contends that this is insufficient

to support a Brady claim.
Dowdy is correct. Shaw never testified. It is too far afield
to suggest that Dowdy’s alleged knowledge that he falsified Shaw’s
statements constitutes exculpatory Brady material on the grounds
it could be used to attack Dowdy’s credibility.

Howard cites no

case to support his argument that misconduct committed by Dowdy as
it related to Shaw -– who did not testify and whose statements
were not otherwise used in the investigation –- supports a § 1983
Brady (or Giglio) claim.

In Gauger v. Hendle, 349 F.3d 354, 360

(7th Cir. 2003), overruled on other grounds by Wallace v. City of
Chicago, 440 F.3d 421 (7th Cir. 2006), the Seventh Circuit rejected
such a claim in an even less attenuated posture.

There, the

plaintiff brought a § 1983 claim against detectives who allegedly
lied about what he had said during an interrogation.

He styled

his claim under Brady, but the Seventh Circuit disagreed: “Gauger
82

argues that Brady . . . required the detectives to give truthful
versions

of

Gauger’s

statements

at

the

interrogation

to

the

prosecutors to be forwarded to his counsel at his criminal trial.
We

find

the

understand.

proposed

extension

of

Brady

difficult

even

to

. . . The problem was not that evidence useful to

[Gauger] was being concealed; the problem was that the detectives
were giving false evidence.

Gauger wants to make every false

statement by a prosecution witness the basis for a civil rights
suit, on the theory that by failing to correct the statement the
prosecution deprived the defendant of Brady material, that is, the
correction itself.”

Id. at 360.

Cf. Armstrong v. Daily, 786 F.3d

529, 553 (7th Cir. 2015) (“[A]n accused has no claim against an
officer who fabricates evidence and puts the evidence in a drawer,
never to be used.”).
As to Moss, his deposition testimony directly conflicts with
his sworn trial testimony.

In the absence of evidence that Dowdy

improperly influenced or coerced Moss, and there is none, Howard
cannot create a claim of suppression when Moss testified under
oath at trial to facts that eliminate this new claim.

Howard also

misstates the record as to what Moss allegedly knew about Best’s
supposed reward.

Howard’s brief states that Moss testified that

“his good friend [Kelvin] Best showed him the paperwork for the
reward money he had received in exchange for his testimony” (Doc.
87 at 17); but Moss’s deposition indicates only that Best showed
83

him an “envelope” that had “the Department of such and such, or
whatever” written on it.

(Doc. 88-24 at 34:11-16.)

Best himself

testified at his deposition that he never asked for and never
received money for his testimony in Howard’s case.
136:19-137:8, 137:18-138:5.)

(Doc. 80-12 at

Moss’s testimony that Best received

reward money, on this record, lacks foundation.

This ground

therefore fails.
iii. Suppressed Investigation as a Sexual
Assault Case and Failure to Investigate
Nishonda’s Boyfriend
Howard argues that Dowdy suppressed the fact that he initially
“suspected the crimes were sexual assaults” and then withheld the
fact that he did not perform an additional investigation into the
whereabouts of Nishonda Washington’s boyfriend or where Nishonda
had been prior to the murders.

(Doc. 87 at 78.)

The only evidence

Howard cites in support of this argument is Dowdy’s deposition in
which, after being assigned to the case, Dowdy wanted to know
whether Doris and Nishonda had been sexually assaulted.
2 at 208:18-209:25.)

(Doc. 87-

Dowdy agreed that the autopsies and the fact

that the Washingtons’ bodies were found naked in bed suggested
that they had been sexually assaulted.

(Id.)

But there is no indication in the record that Dowdy misled
the prosecutor, Michael Nifong, about the nature of the crime by
not telling him he originally suspected the crimes were sexual
assaults.

Nifong testified that he understood the fact that Doris
84

and Nishonda were sexually assaulted was a “mechanism to accomplish
the purpose of the crime in the first place, which was to either
get information or to punish somebody.”

(Doc. 80-9 at 34:6-15.)

Yet the evidence available to him did not show “sexual motivation”
as an impetus for the murders.

(Doc. 88-6 at 119:1-4.)

Nifong

did say that one of the bases for his understanding was Dowdy’s
assurances that he had investigated and concluded that Nishonda
had stayed with a boyfriend.

(Id. at 119:13-21.)

Howard urges

that Dowdy suppressed the fact that “he had not actually done any
investigation

into

Nishonda’s

alleged

boyfriend

and

had

no

evidence supporting his assertion that she had been away until the
night of the crime.”

(Doc. 87 at 78.)

But this lack of evidence

was known to Howard at the time of his trial.

As the court has

discussed at length above, Dowdy’s investigative report contained
no reference or witness statement that Nishonda had returned home
on the evening of her murder.

The only evidence that she had

returned was Dowdy’s testimony at trial. However, Howard’s counsel
did not cross-examine Dowdy on this issue, despite the fact that
nothing else in the record supported Dowdy’s testimony.

In other

words, the lack of evidence that Howard claims Dowdy suppressed
was evident at the time of Howard’s trial.

Furthermore, the crux

of Howard’s claim here is Dowdy’s fabrication that he did in fact
investigate and find evidence of Nishonda’s whereabouts with her
boyfriend.

The court has already found that Howard’s fabrication
85

claim on this point survives summary judgment. But Dowdy’s failure
to

disclose

the

alleged

absence

of

information

about

that

relationship and its timing is not exculpatory or impeachment
evidence within the meaning of Brady and Giglio.

Otherwise, every

alleged failure to act or fabrication could be deemed a Brady
violation.

See Gauger, 349 F.3d at 360.

This basis for the claim

therefore fails.
c.

Malicious Prosecution

Howard brings a federal malicious prosecution claim against
Dowdy.

Neither party devotes much analysis to this claim in his

briefing.

In fact, Dowdy’s motion for summary judgment did not

directly address Howard’s federal malicious prosecution claim but
sought summary judgment as to the parallel claim under North
Carolina law.

(Doc. 80 at 41-43.)

In his reply brief, Dowdy

generally argues that Howard’s malicious prosecution claims –both federal and state -– fail as a matter of law.

(Doc. 105 at

17-18.)
A § 1983 malicious prosecution claim is “properly understood
as

a

Fourth

Amendment

claim

for

unreasonable

seizure

incorporates certain elements of the common law tort.”

which

Evans v.

Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (quoting Lambert v.

86

Williams, 223 F.3d 257, 261 (4th Cir. 2000)).33

Howard must show

that Dowdy (1) caused (2) a seizure of Howard pursuant to legal
process

unsupported

by

probable

cause,

proceedings terminated in Howard’s favor.

and

(3)

criminal

Hupp v. Cook, 931 F.3d

307, 324 (4th Cir. 2019) (quoting Evans, 703 F.3d at 647).
Dowdy contests only the second element, arguing that because
he did not fabricate witness statements, probable cause existed
for Howard’s November 12, 1992 arrest.

(Doc. 105 at 17-18.)

“Probable cause is determined by a ‘totality-of-the circumstances’
approach.”

Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017)

(quoting Illinois v. Gates, 462 U.S. 213, 230 (1983)). It requires
“more than bare suspicion” but “requires less than that evidence
necessary to convict.”
(4th

Cir.

Furthermore,

1998)

(en

probable

United States v. Gray, 137 F.3d 765, 769
banc)
cause

(internal
is

“an

quotations

objective

omitted).

standard

of

probability that reasonable and prudent persons apply in everyday
life.”

Id.

A court must consider “the facts within the knowledge

of the arresting officers to determine whether they provide a

33

“Because the Fourth Amendment is the only constitutional provision
implicated by a § 1983 malicious prosecution claim . . . even malfeasance
that would normally implicate a common law malicious prosecution claim,
such as the continuation of a prosecution without reasonable cause but
after an initial appearance, is not actionable under § 1983.” Gray v.
Maryland, 228 F. Supp. 2d 628, 637 (D. Md. 2002) (internal citations
omitted) (citing Brooks v. City of Winston-Salem, 85 F.3d 178, 183-84
(4th Cir. 1996)).

87

probability on which reasonable and prudent persons would act.”34
Id.

Fabricated or coerced evidence cannot establish probable

cause.

See Gilliam, 932 F.3d at 234.

Because Howard argues that Dowdy fabricated certain prearrest

evidence

implicating

him,

the

court

must

examine

the

remaining evidence to determine whether it provided Dowdy probable
cause to arrest Howard for the murders.
253.

See Munday, 848 F.3d at

Unlike the court’s previous fabrication analysis, which

considered the trial testimony of the witnesses, the focal point
on this claim is Howard’s arrest.

The court must consider whether

the unchallenged evidence available to Dowdy at

the time of

Howard’s arrest was sufficient to establish probable cause.
Under this standard, the court will not consider, for example,
Angela Southerland’s taped statement or Roneka Jackson’s second
statement that corroborated Southerland’s account.

Nor will it

consider the entirety of Dwight Moody Moss’s statement, as Howard
has challenged it and the court has not determined that Moss is
incompetent to testify (even though its admissibility and Moss’s

34

Howard points to Dowdy’s deposition testimony that subjectively he
believed he lacked probable cause to arrest Howard in February 1992.
(Doc. 87-2 at 113:4-8.) Later, Dowdy said that he did have probable
cause by February 1993.
(Id. at 123:13-15.)
The deposition is not
wholly clear on this point, because the context of the questioning was
whether Dowdy had probable cause when the DPD requested reward money
from the Governor (which was February 1992) but the questioner asked
Dowdy if he had probable cause in February 1993.
(Id.)
Ultimately
Howard was arrested in November 1992, so that was when Dowdy needed
probable cause. Regardless, because the standard is objective, Dowdy’s
subjective belief is not relevant. Gray, 137 F.3d at 769.

88

competency have yet to be determined).

Smith’s statement of

Howard’s alleged confession cannot be considered as it came after
Dowdy’s arrest of Howard.

But while Dowdy allegedly fabricated

parts of other witnesses’ statements, unchallenged portions can be
considered.

Thus,

Kelvin

Best’s

second

statement

(that

he

witnessed Howard exiting the back door of Doris Washington’s
apartment) will not be considered, but there is no dispute that
Best

told

Dowdy

he

saw

Howard

come

from

Washington’s apartment complex generally.

the

back

side

of

Nor does Howard dispute

Best’s first statement in which he says he saw Howard around
Doris’s apartment shortly before emergency responders arrived to
put out the fire.

Howard also does not challenge Roneka Jackson’s

first statement, in which she said she heard Howard threaten to
kill Doris earlier in the day and saw Howard come out of Doris’s
apartment roughly fifteen minutes before firefighters responded to
the fire.
Dowdy has not provided a detailed analysis of what evidence
supported the finding of probable cause, and the court need not do
the work for him.

However, in addition to the above, the following

information appears to have been known to Dowdy at the time of
Howard’s arrest, since Dowdy recorded it in his investigative
report:
A

statement

from

Rhonda

Davis,

a

friend

of

Doris

Washington’s, that around midnight on the night of the
89

murders she went to Doris Washington’s apartment, knocked
on the door, and could tell someone was looking through
the kitchen curtains but the lights were out.

She heard a

male voice inside say that the occupants were busy.

(Doc.

87-8 at 11.)
A DPD officer reported that when Howard was arrested by
DPD for trespassing the day after the murders, Howard,
without being asked about the murders, told the officer
that he had been at Doris’s apartment that night and that
he could not understand why she had killed her daughter
and then herself.

(Id. at 8.)

This version appeared at

the time to be counterfactual.
When Dowdy spoke with Howard in the hospital in June 1992,
Howard said he had actually been in a different apartment
in Few Gardens that night and that he had altered his story
because Dowdy “was attempting to place the murder[s] . . .
on

[Howard]

and

that

this

was

[Howard’s]

assisting . . . in the investigation.”
However,

Howard

did

not

tell

Dowdy

way

of

(Id. at 29.)

anything

further,

stating that it was DPD’s job to figure out who killed the
Washingtons and that he was not a snitch.

(Id. at 30.)

DPD’s case was admittedly circumstantial, as the prosecutor
told the jury at trial.

(Doc. 88-6 at 28:22-29:3, 189:13-190:8.)

But even viewing the evidence in the light most favorable to Howard
90

and without considering any of the evidence the court has found to
be the proper subject of a claim of fabrication, probable cause
nevertheless existed to support Dowdy’s arrest of Howard for the
murders

of

Doris

and

Nishonda

Washington.

Dowdy

knew

from

Jackson’s first interview that Howard and Doris Washington had
argued the evening of the murders over what was described as
Howard’s

anger

over

Doris

allowing

Howard’s

girlfriend

to

prostitute herself at Doris’s apartment, and Howard had ended the
argument by threatening to kill Doris and Nishonda.35

Dowdy knew

as well that two witnesses -- Jackson and Best -- saw Howard and
his brother coming from around the back of Doris’s building
carrying a television and VCR right before the fire was detected
(according to Jackson, from 5 to 15 minutes).

Dowdy also had the

statement from Gwen Roper Taylor, who was present and heard Howard
boast (even assuming it was to another, as she later testified)
that he had committed the murders.

Dowdy thus had evidence of a

motive, opportunity, and a confession suggesting that Howard had
murdered the Washingtons.

While perhaps less than sufficient

evidence to convict, this was sufficient evidence to reasonably
conclude that Howard probably committed the crimes.

See, e.g.,

Gray, 137 F.3d at 770 (finding probable cause existed to arrest
35

Although Jackson later testified on cross-examination at Howard’s
trial that Doris Washington did not seem upset, bothered, or worried by
Howard’s threats (Doc. 72-1 at 187:14-188:1), there is no indication
that Jackson told Dowdy this during her first interview. Thus, Dowdy
had no reason to second-guess Doris’s reaction to Howard’s threats.

91

murder suspect after (1) wiretap information identified suspect’s
street name as being involved with the murder, (2) forensic
evidence demonstrated that a firearm that the defendant possessed
had been fired at the crime scene, and (3) a witness from the scene
identified the defendant as resembling one of the assailants);
Gomez v. Atkins, 296 F.3d 253, 262-66 (4th Cir. 2002) (in § 1983
claim, finding probable cause for murder even though defendant was
acquitted

where

motive,

opportunity,

and

physical

evidence

(although “not overly compelling”) linked defendant despite an
alibi); Mallory v. Holdorf, Civil Action No. 3:11-03295-MBS, 2012
WL 4479070, at *2-3, *11 (D.S.C. Sept. 28, 2012) (in § 1983 claim,
finding probable cause to arrest a husband for the murder of his
wife despite his later acquittal when witnesses reported hearing
what they believed to be a married couple arguing, saw a man run
to a vehicle resembling plaintiff’s van and driving away after the
argument/murder, plaintiff failed a polygraph test regarding the
murder, and his alibi did not conclusively exclude him from
committing the murder), aff’d, 575 F. App’x 108 (4th Cir. 2014)
(per curiam); Schlamp v. Prince George’s Cty., Civil Action No.
DKC 2006-1644, 2008 WL 7482628, at *6 (D. Md. Sept. 11, 2008) (in
a § 1983 claim, finding that probable cause existed to arrest
plaintiff for murder (by stabbing) when the undisputed facts showed
that, immediately before a large fight, plaintiff had shouted he
was going to kill the victim, plaintiff instigated the fight, and
92

witnesses reported seeing plaintiff punching the victim), aff’d,
322 F. App’x 312 (4th Cir. 2009) (per curiam); Kipps v. Ewell, 538
F.2d 564, 566-67 (4th Cir. 1976) (finding probable cause for murder
based on statement from fellow inmate that defendant admitted the
murder and showed him the weapon, defendant had been seen with the
victim within days of her estimated death, and several others
reported that defendant told them shortly after the victim’s body
was found that he could provide information about the victim but
would not do so voluntarily); Mead v. Shaw, Civil Action No. 3:12CV-00132-GCM, 2016 WL 316870, at *6 (W.D.N.C. Jan. 25, 2016) (in
a § 1983 case, finding that probable cause existed to arrest
boyfriend for the murder of girlfriend, despite his acquittal at
trial, based on, among other things, his demeanor at the crime
scene and during interviews with law enforcement, his past violent
or difficult relationships with women, his apparent attempts to
manipulate a polygraph exam, and the presence of his DNA in the
victim’s rape kit), aff’d, 716 F. App’x 175 (4th Cir. 2018) (per
curiam); Harkness v. City of Anderson, No. C.A. 8:05-1019-HMH,
2005 WL 2777574, at *1–4 (D.S.C. Oct. 25, 2005) (in a § 1983 case,
finding that probable cause existed to arrest plaintiff for murder
after a 12-year-old witness (who law enforcement later determined
actually

committed

the

murders)

shooter,

correctly

identified

identified

plaintiff’s

plaintiff

vehicle,

as

identified

plaintiff out of a photographic line-up as the shooter,
93

the

and

generally provided inculpatory information that law enforcement
was able to verify).
Thus, even disregarding the allegedly fabricated evidence, a
reasonable officer would have believed there was a probability
that Howard was responsible for the murders.

Because probable

cause existed to arrest Howard for the murders and arson, his
§ 1983 malicious prosecution claim fails.36
d.

Failure to Investigate

Howard alleges that Dowdy violated his due process rights by
failing to properly investigate his case; namely, Dowdy fabricated
evidence to implicate Howard, withheld exculpatory evidence, and
intentionally failed to perform further investigations into the
source of sperm found in Nishonda.

Furthermore, Howard argues

that Dowdy failed to adequately investigate the New York Boys as
suspects, even though Dowdy received a tip strongly suggesting
that the gang was responsible for the murders.
Law enforcement has no constitutional duty to “investigate
independently every claim of innocence” or “perform an error-free
investigation.”

Baker v. McCollan, 443 U.S. 137, 146 (1979).

The

Fourth Circuit has also made clear that “there is no independent
constitutional right to investigation of a third party.”

36

Gilliam,

Howard’s argument that Dowdy conceded otherwise is wrong, as he clearly
stated he believed he had probable cause for an arrest. (Doc. 72-1 at
382:5-13.)

94

932 F.3d at 240.

However, it has recognized a due process claim

for failure to perform an adequate investigation if an officer
takes bad faith actions to shield his wrongful acts, including
fabricating
evidence.

testimony

and

Id. at 240-41.

failing

to

disclose

exculpatory

Dowdy argues that because Howard’s

fabrication and Brady claims fail, his failure to investigate claim
necessarily fails because there was no illegal conduct from which
Dowdy would shield himself.

He contends, alternatively, that in

the absence of any evidence of bad faith he is entitled to
qualified immunity because any duty to follow alternative leads
was not clearly established in 1991-94.
To the extent the court has found that Howard has presented
evidence from which a jury could conclude that Dowdy fabricated
and suppressed evidence, Dowdy’s motion for summary judgment as it
relates to Howard’s claim of inadequate investigation will be
denied.

It will be up to a jury to determine whether Dowdy

fabricated and suppressed evidence to cover up his failure to
adequately investigate the New York Boys’ participation in the
murders37 and Nishonda’s sexual history and return date to Doris’s
apartment (particularly after DNA evidence excluded Howard as a
source of the sperm found in Nishonda before trial) and, if so, if

37

To be clear, Howard has not provided evidence that the New York Boys
in fact had any role in the murders of the Washingtons.

95

he acted in bad faith to shield his allegedly wrongful acts.38
Consequently, the court need not reach Dowdy’s immunity argument.
2.

State Law Claims

Howard brings three state law claims against Dowdy: malicious
prosecution; negligence; and intentional infliction of emotional
distress. Dowdy first argues that public official immunity shields
him from liability against all three claims.
“Public official immunity, which applies to public officials
sued in their individual capacity, is analogous to qualified
immunity in the federal context.”

White v. City of Greensboro,

408 F. Supp. 3d 677, 705 (M.D.N.C. 2019).

A public official is

entitled to immunity from suit unless he “engaged in discretionary
actions which were allegedly: (1) corrupt; (2) malicious; (3)
outside of and beyond the scope of his duties; (4) in bad faith;
or (5) willful and deliberate.”

Smith v. Jackson Cty. Bd. of

Educ., 608 S.E.2d 399, 411 (N.C. Ct. App. 2005) (quoting Reid v.
Roberts,

435

S.E.2d

specifically,

“public

officials

their

in

116,

119

(N.C.

Ct.

App.

1993)).

official

immunity

applies

individual

capacity

for

to

More
public

negligence

in

performance of their duties,” not to actions taken with malice.
White,

408

F.

Supp.

3d

at

704

38

n.20.

Thus,

if

Howard

has

The Fourth Circuit concluded in Gilliam that as of 1983 a defendant’s
“constitutional rights not to be imprisoned and convicted based on
coerced, falsified, and fabricated evidence or confessions, or to have
material exculpatory evidence suppressed, were clearly established.”
Gilliam, 932 F.3d at 241.

96

sufficiently forecast evidence showing Dowdy acted with malice,
public official immunity will not shield him from liability.
Malice in the public official immunity context refers to
“wantonly do[ing] that which a man of reasonable intelligence would
know to be contrary to his duty and which he intends to be
prejudicial or injurious to another.”
888, 890 (N.C. 1984).

Grad v. Kaasa, 321 S.E.2d

Dowdy argues that Howard has failed to show

that he acted with malice in investigating the Washington murders.
However,

the

actions

described

in

analyzing

Howard’s

federal

claims, taken in the light most favorable to Howard, create an
issue of material fact as to whether Dowdy acted with malice since
Howard’s state law claims arise out of the same facts as his
federal claims.

Thus, Howard has forecast sufficient evidence, if

believed, to deprive Dowdy of public official immunity.

See Wells

v. N.C. Dep’t of Corr., 567 S.E.2d 803, 813 (N.C. Ct. App. 2002)
(“[I]f

the

plaintiff

determination

[whether

alleges
public

an

intentional

official

tort

immunity

claim,

applies]

a
is

unnecessary since . . . a public official . . . is [not] immunized
from suit.”); cf. Maney v. Fealy, 69 F. Supp. 3d 553, 564-65
(M.D.N.C. 2014) (synthesizing North Carolina cases and concluding
that public official immunity does not apply to intentional torts
in which malice encompasses intent).

Therefore, Howard’s claims

for malicious prosecution and intentional infliction of emotional
distress against Dowdy are not barred by public official immunity.
97

Furthermore,
pierced

.

.

“once
.

the

the

cloak

of

official

defendant

is

not

immunity

entitled

to

has

been

[immunity]

protection on account of his office and he is then liable for
simple negligence.”
238

(N.C.

Ct.

App.

quotations omitted).

Wilcox v. City of Asheville, 730 S.E.2d 226,
2012)

(alteration

in

original)

(internal

Because Howard has satisfied his “burden of

showing that [Dowdy] acted maliciously,” public official immunity
will not shield Howard’s negligence claim.

Id.

Having concluded that Dowdy is not entitled to public official
immunity as to Howard’s state law claims, the court will turn to
the merits of each claim.
a.

Malicious Prosecution

To bring a state law claim for malicious prosecution in North
Carolina, Howard must demonstrate that Dowdy “(1) instituted,
procured or participated in the criminal proceeding against [him];
(2) without probable cause; (3) with malice; and (4) the prior
proceeding terminated” in Howard’s favor.
S.E.2d

415,

421

(N.C.

Ct.

App.

1996)

Moore v. Evans, 476
(quoting

Williams

v.

Kuppenheimer Mfg. Co., Inc., 412 S.E.2d 897, 899 (N.C. Ct. App.
1992)).
Dowdy argues that Howard’s malicious prosecution claim fails
because (1) the prosecutor independently made the decision to bring
Howard’s case to trial, and (2) probable cause existed to prosecute
Howard for the murders.

As to his first argument, Dowdy argues
98

that the North Carolina Supreme Court’s decision in N.C. Farm
Bureau Mutual Insurance Co. v. Cully’s Motorcross Park, Inc., 742
S.E.2d 781 (N.C. 2013), altered the first element of a malicious
prosecution claim such that when a third party “independently
exercise[s] discretion to make the prosecution his own,” after a
defendant provides the third party with information, that decision
insulates the defendant from liability.
contends

that

officials.

Cully’s

has

no

Id. at 787-88.

application

to

law

Howard

enforcement

However, it is not necessary to decide this issue

because, as the court has already determined, probable cause
existed to arrest Howard for the murders.39
Just as the court cannot consider the alleged fabricated
evidence in deciding whether probable cause existed in relation to
Howard’s § 1983 malicious prosecution claim, it cannot consider
the same evidence in relation to Howard’s common law malicious

39

Although the finding is unnecessary, Dowdy is likely incorrect that
Cully’s would be applicable here.
The North Carolina Supreme Court
expressly limited the holding of Cully’s to instances where a private
party provides information to a public official. Cully’s, 742 S.E.2d
at 787-88. Furthermore, Cully’s rule only applies where an individual
provides information that he “believes to be true.” Id. at 787. But
Dowdy was not acting as a private party and the court has found there
is a jury question whether Dowdy knowingly provided the prosecutor with
false information. As Cully’s noted, “where it is unlikely there would
have been a criminal prosecution of [the] plaintiff except for the
efforts of [the] defendant,” a genuine issue of material fact exists
regarding the first element of a malicious prosecution claim. Becker
v. Pierce, 608 S.E.2d 825, 829 (N.C. Ct. App. 2005) (internal quotations
omitted).

99

prosecution claim.

See Braswell v. Medina, 805 S.E.2d 498, 507

(N.C. Ct. App. 2017).

Even so, as the court found with the federal

claim, Dowdy did not lack probable cause when he arrested Howard
for the murders of the Washingtons.

Thus, for the same reasons

that the court granted Dowdy’s motion as it relates to Howard’s
federal malicious prosecution claim, Dowdy’s motion as to Howard’s
state malicious prosecution claim will be granted.40
b.

Negligence

Dowdy’s only argument regarding Howard’s negligence claim
relies upon public official immunity. However, the court has found
that Howard has presented evidence sufficient to pierce the cloak
of public official immunity such that Dowdy is not shielded from
liability

against

Howard’s

negligence

claims.

Because

Dowdy

offers no other argument on this issue, his motion for summary
judgment as it relates to Howard’s negligence claim will be denied.
c.

Intentional Infliction of Emotional Distress

To bring a claim for intentional infliction of emotional
distress, Howard must show “(1) extreme and outrageous conduct,
(2) which is intended to cause and does cause (3) severe emotional

40

Unlike a § 1983 malicious prosecution claim, a common law malicious
prosecution claim is not bound by the strictures of the Fourth Amendment.
The North Carolina Supreme Court has recently declined to clarify whether
North Carolina law recognizes a malicious prosecution claim when, after
a magistrate or grand jury finds probable cause, “that probable cause
later evaporates but the prosecution nevertheless continues in bad
faith.” Turner v. Thomas, 794 S.E.2d 439, 445-46 (N.C. 2016). As Howard
has not raised this particular argument, the court does not consider it.

100

distress to another.”
(N.C. 1981).

Dickens v. Puryear, 276 S.E.2d 325, 335

The tort may also be established if Dowdy’s actions

demonstrate “a reckless indifference to the likelihood” that he
would cause Howard severe emotional distress.

Turner v. Thomas,

794 S.E.2d 439, 446 (N.C. 2016) (quoting Dickens, 276 S.E.2d at
335).

Dowdy argues that Howard has offered no evidence that he

engaged in extreme and outrageous conduct sufficient to satisfy
the first element of the tort.
The North Carolina Supreme Court has defined extreme and
outrageous conduct as actions that “exceed[] all bounds of decency
tolerated by society.”

West v. King’s Dep’t Store, Inc., 365

S.E.2d 621, 625 (N.C. 1988).
high threshold.

Extreme and outrageous conduct is a

Turner, 794 S.E.2d at 446.

The North Carolina

Supreme Court has found that when “law enforcement officials
deliberately

abus[e]

their

authority

as

public

officials

to

manipulate evidence and distort a case for the purpose of reaching
a foreordained conclusion of guilt,” their actions constitute
extreme and outrageous conduct.

Id.

As already noted, Howard has established a genuine issue of
material fact whether Dowdy fabricated important evidence while
prosecuting the murders.

If a jury were to find that Dowdy

committed this misconduct, it could likewise determine that his
actions were extreme and outrageous.
his

motion

for

summary

judgment
101

as

Thus, the court will deny
to

Howard’s

intentional

infliction of emotional distress claim.
C.

Milton Smith

Milton Smith seeks summary judgment on the two claims Howard
brings for allegedly fabricating a confession from Howard while he
and his brother Harvey were being booked in jail.41
76.)

(Docs. 75,

Howard brings a federal § 1983 fabrication claim and a state

law claim for intentional infliction of emotional distress against
Smith.

(Doc. 87 at 86-89.)

After Howard had been arrested by DPD for the Washington
murders, Smith obtained warrants to arrest Howard and his brother
Harvey for the arson of the Washingtons’ apartment.

In the course

of booking the two, Smith recorded the following exchange in his
report:
Darryl Howard appeared to my left, still in the jail
holding area. Darryl Howard stated that “Wiz” was not
with him in Few Gardens when this “thing went down.”
Darryl Howard stated that his brother Kenneth was with
him.
This investigator then asked Darryl Howard, “so ‘Wiz’
was not with you, huh? So your brother Kenneth was with
you when you did the thing”? Darryl Howard stated that
“yes, it was me and Kenneth.”
(Doc. 88-40 at 5-6 (emphasis added).)

As Smith continued to

complete the arrest/detention report, he recorded that Howard,
“who had walked from my left, behind me and now stood to my right

41

Howard has abandoned his state law malicious prosecution claim against
Smith. (Doc. 87 at 88 n.33.) Smith’s motion for summary judgment will
therefore be granted as to that claim.

102

stated ‘you’re a smart mother fucker aren’t you?’”

(Id. at 6.)

At trial, Smith characterized Howard’s statement as a confession
that

he

had

committed

the

murders

maintained in his later deposition.

and

arson,

a

position

he

(Doc. 72-1 at 324:15-325:19;

Doc. 88-12 at 65:18-23 (“All I know is he confessed to it.

And he

was a grown-assed man when he confessed to it.”).)
When cross-examined at trial about whether he told Smith that
he and Kenny “did that thing,” Howard testified, “I didn’t tell
him

that,”

and

said

that

the

statement

was

Smith’s

interpretation to help himself to say something like that.”
72-1 at 546:8-14.)

“own
(Doc.

According to Howard, Smith had asked where

Howard and his brother Harvey had been the night of the murders
(id. at 545:20-546:1), and he responded specifically to that
question (id. at 534:16-19).

Howard testified that Smith heard

him say that Kenny was with him that night and “wrote it the way
he wanted to say it.”

(Id. at 534:8-20.)

In his deposition,

Howard testified that he had no recollection of telling Smith that
Harvey was not with him in Few Gardens “when this thing went down”
and that Kenny was with him.

(Doc. 88-3 at 361:8-25.)

Later in

his deposition, Howard insisted that he had never confessed to the
murders and arson and never told Smith that he had “[done] this
thing.”

(Id. at 419:23-420:9.)
1.

Section 1983 Fabrication Claim

103

Smith argues that Howard has failed to present evidence that
he knowingly fabricated or misrepresented any statement by Howard
and, in any event, has failed to demonstrate that his report was
the but-for cause of Howard’s conviction.

According to Smith, the

only evidence that he fabricated a confession is found in Howard’s
deposition where, when asked whether he said he “did this thing,”
testified, “I don’t remember telling him that.”
361:8-25.)

(Doc. 88-3 at

Smith contends that Howard’s attempt to clarify his

response later in the deposition fails to create an issue of
material

fact

testimony.

by

offering

conflicting

versions

of

his

own

Howard points to his trial testimony denying Smith’s

version of the exchange and his deposition testimony that he never
confessed to the murders or said he “did this thing.”
In the light most favorable to Howard, there is a genuine
issue of material fact whether Smith accurately recounted Howard’s
alleged statement in his report.

Smith’s contention that Howard’s

deposition testimony is the only evidence that he fabricated a
confession

ignores

Howard’s

trial

testimony

that

Smith

purposefully mischaracterized their conversation into a confession
and that Howard never confessed to the killings.

Moreover,

Howard’s deposition testimony is not fatally conflicting; his lack
of any recollection of having said he “did this thing” is not

104

inconsistent with his denial of ever confessing to the murders. 42
Thus, a jury must decide which of the two characterizations of
this conversation is correct. See, e.g., Swick v. Wilde, No. 1:10cv-303, 2012 WL 3780350, at *21 (M.D.N.C. Aug. 31, 2012).
Smith also argues that Howard cannot show causation because
his arrest, indictment, conviction, and incarceration would have
occurred even had Smith’s alleged fabrication not been presented
to the jury.

(Doc. 76 at 15.)

To the extent Smith argues that

the alleged statement was not material to the finding of probable
cause (because Howard had already been arrested for murder) or the
prosecutor’s

decision

to

indict,

Smith

relies

on

the

wrong

standard. (Id. at 16 (relying on cases addressing § 1983 malicious
prosecution claims regarding plaintiff’s pretrial detention).)43
As Howard notes and the court has stated earlier, the liberty
interest here is Howard’s conviction and incarceration.

Massey v.

Ojaniit, 759 F.3d 343, 354 (4th Cir. 2014); see also Jones v. City
of Chicago, 856 F.2d 985, 994 (7th Cir. 1988).

42

Smith’s reliance on “sham affidavit” cases barring the presentation
of an affidavit to conflict with prior deposition testimony, e.g.,
Cordero v. City of Columbia, C/A No. 3:11-cv-2502-JFA, 2013 WL 1282061,
at *3 (D.S.C. Mar. 27, 2013), aff’d, 543 F. App’x 334 (4th Cir. 2013)
(per curiam), is therefore misplaced. See Sanders v. Mitre Corp., No.
CIVA 104CV1116 JCC, 2005 WL 5436644, at *3 (E.D. Va. July 20, 2005),
aff’d, 198 F. App’x 304 (4th Cir. 2006) (per curiam) (declining to strike
affidavit that failed to directly contradict prior sworn testimony).
43

E.g., Durham v. Horner, 690 F.3d 183, 188-89 (4th Cir. 2012)
(addressing a § 1983 malicious prosecution claim); Miller v. Prince
George’s Cty., 475 F.3d 621, 627–28 (4th Cir. 2007) (Fourth Amendment
unreasonable seizure claim).

105

To

be

sure,

Smith’s

trial

testimony

is

Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983).

not

actionable.

But this does not

immunize Smith from liability for conduct “outside the courtroom”
that “violated an accused’s rights.”

Snyder v City of Alexandria,

870 F. Supp. 672, 688 (E.D. Va. 1994).

“Courts considering the

applicability of Briscoe in police misconduct cases have held that
a witness cannot immunize pretrial conduct by testifying about
it.”

Washington v. Wilmore, No. Civ. A. 3:02CV00106, 2006 WL

2471611, at *7 (W.D. Va. Aug. 23, 2006) (citing Snyder, 870 F.
Supp. at 688).

“[I]n fabrication of evidence cases, it is clear

that the fabricator may be liable for his pretrial actions even
where he himself has offered the evidence in an immunized judicial
proceeding.”

Id. at *8 (citing Zahrey v. Coffee, 221 F.3d 342 (2d

Cir. 2000)).

See Spurlock v. Satterfield, 167 F.3d 995, 1001-04

(6th Cir. 1999) (finding that an officer was immune from liability
as to his trial testimony, but not for officer’s misconduct that
formed

the

grounds

for

his

trial

testimony);

Buckley

v.

Fitzsimmons, 20 F.3d 789, 796 (7th Cir. 1994) (“Immunity for
prosecutorial deeds does not whitewash wrongs completed during the
investigation.”); Burgess v. Balt. Police Dep’t, Civil Action No.
RDB-15-0834, 2016 WL 795975, at *7 n.10 (D. Md. Mar. 1, 2016)
(rejecting crime lab analyst’s argument that, because he testified
at plaintiff’s criminal trial, he was immune from plaintiff’s
claims that he fabricated lab results implicating plaintiff in the
106

crime and subsequently testified about the results at trial);
Washington v. Buraker, No. CIVA302CV00106, 2006 WL 759675, at *7
(W.D. Va. Mar. 23, 2006) (noting that “although it does not appear
that the [fabricated] police report [authored by the defendant]
influenced the decision to bring charges, it is unquestionable
that” false information in the report “influenced the way in which”
the case was prosecuted (internal citations omitted)).
The issue is whether Howard’s conviction was a “reasonably
foreseeable result of [Smith]’s initial act of fabrication” –- his
report of the confession.

Washington v. Wilmore, 407 F.3d 274,

282-83 (4th Cir. 2005). That will be for a jury to decide. Smith’s
argument

that

the

allegedly

fabricated

confession

cannot

construed to have caused Howard’s conviction is unavailing.
case was admittedly circumstantial.

be

This

As the prosecutor argued to

the jury, “the real crux of this case comes down to one thing and
that is whether or not you believe the defendant.”
719:21-24.)

A confession reported by a law enforcement officer

carries great potential weight.
confession

(Doc. 72-1 at

or

the

other

In the absence of the reported

allegedly

fabricated

evidence,

a

reasonable jury could conclude that reasonable doubt existed to
avoid a finding of guilt.

See, e.g., Tarlton for McCollum v.

Sealey, No. 5:15-CV-451-BO, 2018 WL 1129976, at *12 (E.D.N.C. Mar.
1, 2018), aff’d sub nom. Gilliam v. Sealey, 932 F.3d 216 (4th Cir.
2019); Washington v. Buraker, 322 F. Supp. 2d 702, 712 (W.D. Va.
107

2004) (finding causation where fabricated evidence “could have
affected the judgment of the jury”), aff’d sub nom. Washington v.
Wilmore, 407 F.3d 274 (4th Cir. 2005).
Thus,

Smith’s

motion

for

summary

judgment

on

Howard’s

fabrication claim must be denied.
2.

Intentional Infliction of Emotional Distress

Smith finally seeks summary judgment on Howard’s claim for
intentional infliction of emotional distress.

Smith challenges

only the causation element.

Specifically, he

(Doc. 76 at 17-18.)

contends that even if Howard was wrongfully convicted, he cannot
show that any emotional distress was caused by the firefighter’s
report.

Smith urges that “Howard was going to be indicted and

tried for the Washington murders . . . regardless of whether Smith
recorded the statements” in his report.

(Id. at 18.)

However, as

the court detailed in considering the causation prong of Howard’s
fabrication claim against Smith, the issue is not whether Smith’s
actions caused Howard to be tried, but rather whether the allegedly
fabricated

report

incarceration.
recently

found

caused

Howard’s

conviction

and

subsequent

Notably, the Supreme Court of North Carolina
that

the

causation

element

of

an

intentional

infliction of emotional distress claim was satisfied when law
enforcement officers “altered and manipulated evidence” to obtain
a murder conviction “despite evidence to the contrary.”
Thomas, 794 S.E.2d 439, 446–47 (N.C. 2016).
108

Turner v.

Here, a jury could

reasonably

conclude

misconstrued

that

statements

Smith

made

by

fabricated
Howard

or

into

deliberately
a

confession.

Consequently, a jury must resolve whether Smith misrepresented or
fabricated a confession of the murders in his report and, if so,
whether that caused Howard severe emotional distress.
D.

Soucie and Pennica

Defendants Michele Soucie and Scott Pennica jointly move for
summary judgment as to the three claims against them: a § 1983
suppression claim, a state law claim for obstruction of justice,
and a state law claim for intentional infliction of emotional
distress.

(Docs. 77, 78.)

They argue that Howard has failed to

forecast sufficient evidence from which a reasonable jury can
conclude that they acted intentionally because there is no evidence
they knew of the state court’s September 2011 Order requiring DPD
to alert him to any exculpatory evidence found in connection with
the additional DNA tests.

Further, they contend, even if there

was a constitutional violation they are entitled to qualified
immunity.
1.

Section 1983 Suppression Claim

Howard alleges that Soucie and Pennica violated his liberty
interest in proving his innocence under North Carolina’s postconviction

relief

statutes

by

intentionally

suppressing

exculpatory post-conviction information; namely, notes and a video
recording of their December 2011 interview of Jermeck Jones when
109

they obtained his buccal DNA sample for the SBI.

Howard contends

their failure caused him to spend an additional four and one-half
years in prison.

Soucie and Pennica do not dispute that DPD’s

audio recording of Jones’s interview and their related notes
contain exculpatory information whose disclosure was required by
the state court’s September 2011 Order.

Rather, they maintain

that no one ever shared the court order or its requirements with
them, and because they had no independent duty to provide the
materials, there is no basis from which a jury could reasonably
conclude that they acted intentionally.
As noted in this court’s prior order denying Soucie and
Pennica’s motion to dismiss, while the Brady duty to disclose
exculpatory evidence does not continue post-conviction, convicted
individuals

have

a

liberty

interest

in

demonstrating

innocence with new evidence under state law.

their

(Doc. 22 at 13

(citing Dist. Att’y's Off. for Third Jud. Dist. v. Osborne, 557
U.S. 52, 68 (2009); Burgess v. Balt. Police Dep't, Civil Action
No. RDB-15-0834, 2016 WL 795975, at *7–8 (D. Md. Mar. 1, 2016)).)
Howard agrees, as this court also noted in that same order (Doc.
22 at 14-15) that to be actionable a violation of this interest
must be intentional.

(Doc. 87 at 90.)

Howard’s claim relies on circumstantial evidence to suggest
that DPD was informed of its obligation under the September 2011
Order to disclose the materials that were not provided.
110

Both

Soucie and Pennica maintain that they never had knowledge of that
order or the obligations set forth within it.
24; Doc. 78-4 at 29:4-32:17.)

(Doc. 78-3 at 64:9-

Howard points to statements by

Durham Assistant District Attorney Dale Morrill who, while having
no specific recollection of ever receiving the order or what he
may have done in response, acknowledged that, as was his practice,
“If I receive an order, I’m going to comply with it to the best of
my ability.”

(Doc. 89-13 at 250:13-14.)

Based on Morrill’s

“general practices” and the evidence of what he did, Howard
contends a jury can infer that he disclosed the order’s contents
to Pennica and Soucie.

(Doc. 87 at 91.)

For example, District

Attorney Tracey Cline requested, and Morrill turned over, DPD’s
complete file to Howard’s post-conviction counsel, as required by
the order.

(Doc. 89-13 at 131:21-132:7, 151:14-152:8.)

Morrill

also met with Howard’s counsel to review the evidence and sent a
letter to DPD requesting it to send the evidence to the SBI.
at 149:20-150:3, 153:5-17.)

(Id.

Additionally, Morrill coordinated

with the SBI for the testing of DNA.

(Id. at 162:5-15.)

Morrill

also recalls having spoken with Pennica between August 26 and
September 15, 2011.

(Id. at 256:13-16.)

Howard also cites the actions of Pennica, a DPD sergeant, and
Soucie, a DPD investigator.

Pennica had one or two “brief”

conversations with Morrill, “reiterating what [Morrill’s] boss
[District Attorney Cline] was telling him.”
111

(Doc. 89-19 at 62:22-

24.)

Pennica retrieved a copy of Howard’s trial transcript, which

he reviewed to familiarize himself with the case.

(Id. at 54:21-

25.) He recommended to his supervisors that they try to find Jones
and interview him so that “hopefully the truth . . . would come
out one way or the other.”

(Id. at 60:6-10, 79:2-6.)

Pennica

assigned Soucie the responsibility of locating the subject whose
DNA had been returned on the CODIS report.
22.)

(Doc. 89-26 at 32:18-

He also joined her for the session with Jones to extract his

DNA sample and attempt to question him following his arrest. (Doc.
89-19 at 68:15-18.)
Soucie learned that Jones had an outstanding warrant relating
to a driving offense, emailed his probation officer, had him
brought in, and read him his rights.
7; Doc. 89-29 at 3:17-4:18.)

(Doc. 89-26 at 41:4-20, 48:5-

She obtained the buccal DNA sample,

sent it to the SBI crime lab, burned a copy of the CD from the
recording of the encounter with Jones, and testified that, as
Pennica instructed her, turned it all into the “records” file.
(Doc. 89-26 at 84:1-85:23.)

Focusing on Soucie’s acknowledgment

that it was her practice to send all materials to the district
attorney in an open homicide case (id. at 22:3-9), Howard contends
this is a concession of intentional misconduct. He focuses heavily
on the potential impeachment value of statements Jones made during
the interview, even though he invoked his right to counsel, and
zeroes in particularly on phone calls Jones made after Pennica and
112

Soucie left the interview room that were recorded on the hidden
camera.44

He concludes that Soucie and Pennica suppressed their

notes and the recording because they recognized that they would
have reflected poorly on DPD’s prior handling of Howard’s case.
A failure to disclose exculpatory information is a necessary,
but not sufficient, condition for police liability under § 1983.
Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000) (en banc)
(Wilkinson, C.J., concurring in the judgment). Indeed, a plaintiff
must show that an officer acted in bad faith in failing to disclose
evidence; this showing must “negate any negligent or innocent
explanation for the actions on the part of the police.”

Id.

Here,

the record fails to meet this standard.
A necessary predicate for Howard’s claim is knowledge by
Pennica and Soucie of their obligation to forward their notes and
video recording of Jones’s DNA extraction to the DA or to Howard’s
counsel.

Morrill does recall speaking to Pennica –- his point of

contact at DPD about Howard’s postconviction case –- after the

44

These include: a statement that Nishonda had been his girlfriend but
that he did not kill her; once he was informed that his DNA would be
taken, his contradictory statement that he did not know Doris (despite
the fact that his DNA was subsequently found on her); a statement that
he had consensual sex with Nishonda (despite the fact that she was 13
years old and his DNA was not found on her); the fact that when he was
in the interview room alone, he made a series of calls from his cell
phone in which he implicated himself in the crimes and indicated that
he had just lied to Soucie and Pennica, including statements that he did
not want to “rat on anybody,” that “I ain’t said nothing,” that “ain’t
nothing they going to learn without my attorney”, and that he had visited
the Washington apartment. (Doc. 89-29 at 13:6-7, 24:21, 26:22-24, 28:3.)

113

August 26, 2011, SBI CODIS report and just prior to the filing of
the September 2011 Order.

(Doc. 78-2 at 256:13-24.)

Morrill told

Pennica that he wanted to go “above and beyond” to ensure the
District

Attorney’s

procedures.

Office

complied

with

the

post-conviction

(Doc. 89-13 at 152:10-154:20.)

However, the parties have acknowledged that Howard’s postconviction counsel never served the September 2011 Order on DPD.
(Doc. 71 ¶ 3.)

There is also no evidence that anyone informed DPD

of the order’s directives as to DPD, which were set out in the
last of several numbered paragraphs which otherwise addressed
other parties.

Morrill testified that he did not specifically

recall receiving the order himself or informing DPD of the its
contents.

(Doc. 78-2 at 253:3-16, 254:9-255:5.)

of ever sending the order to DPD.

He had no memory

(Id. at 255:15-256:11.)

He did

agree that as an officer of the court his general practice was to
follow the law and ensure that state agencies knew of their legal
responsibilities.

(Id. at 253:24-254:8, 254:15-25, 255:5-8.)

All

the evidence indicates that he did so as to his responsibilities
-– turning over the

case file, making the physical evidence

available, and directing DPD to collect Jones’s DNA.

And while

Morrill may have expected DPD to turn over to him any other
evidence that was created, in this post-conviction posture it
cannot be assumed that DPD had the same understanding absent
knowledge of the order.
114

There is also no dispute that the district attorney, Tracey
Cline, had announced that she would not pursue any claims against
Jones related to the Washington murders.
89-13 at 201:12-15.)

(Doc. 89-18 at 1; Doc.

The record reflects that Morrill passed this

declination decision on to Jason Kreag, Howard’s post-conviction
counsel, and to Pennica, who informed Soucie.

(Doc. 89-13 at

201:12-22; Doc. 89-26 at 87:10-12.)
Soucie became involved in the case on December 5, 2011, almost
3 months after the September 2011 Order, and Pennica directed her
to collect Jones’s DNA as per the August 26, 2011, SBI CODIS
report.

(Doc. 89-26 at 26:13-22, 32:18-22.)

The CODIS report,

which was directed to Pennica, included this statement from the
SBI:

“Per a conversation with DA Tracey Cline on 8/26/2011, the

CODIS hit will not be pursued by the Durham County District
Attorney’s Office.”

(Doc. 89-18 at 1.)

It is also important that

by the time Pennica and Soucie got involved, DPD had classified
Howard’s case as “closed.”
normal

rules

about

open

(Doc. 89-26 at 25:6-13.)
file

discovery

and

So, the

disclosing

all

information to the district attorney, upon which Howard relies,
were not applicable.45

This was also the first post-conviction

case on which either investigator had worked. (Doc. 89-26 at 26:812; Doc. 89-19 at 53:12-13.)

45

This is one reason why Brady does not apply at this post-conviction
stage. See Osborne, 557 U.S. at 68-70.

115

Soucie collected Jones’s buccal DNA and forwarded it to the
SBI for further processing.

(Doc. 89-26 at 84:1-10.)

Although

Soucie and Pennica tried to interview Jones about the Washington
murders, he invoked his right to counsel; it was only after Soucie
and Pennica left Jones alone in the room that the recording
equipment hidden in the thermostat continued to run and captured
Jones’s comments about the murders.

But there is no evidence that

anyone at DPD ever viewed the video.

(Doc. 89-30 at 329:4-17.)

In light of the DA’s directive that DPD would not pursue the case,
Soucie wrote her report and put it and the recording in the file,
as Pennica directed.

(Doc. 89-26 at 85:2-15.)

Viewing the complete record, the evidence is insufficient to
negate any innocent or even negligent explanation for the failure
of DPD to provide the notes and recording to Howard’s postconviction counsel.

It is not contested that ordinarily, in an

active investigation, the practice and expectation was for DPD to
disclose its file to the DA’s office, which in turn would disclose
it to the defendant’s counsel; no one suggests that DPD would be
expected to disclose materials directly to defense counsel.
89-13 at 106:4-18.)

(Doc.

But there was no active DPD investigation

here. Soucie and Pennica were told by Morrill, and the SBI’s CODIS
report confirmed, that the district attorney, Cline, had declared
that she was not going to prosecute any case against Jones.

Thus,

the only basis for requiring disclosure was the September 2011
116

Order.

But on this record, a jury could only speculate that its

terms as to DPD’s responsibilities were ever disclosed to Soucie
and Pennica.

Moreover, it defies reason to suggest that two DPD

investigators, knowing their very actions were subject to ongoing
court oversight, would carry out the mandate of the SBI CODIS
report and mail the DNA to the SBI, yet intentionally flout a court
order to produce their interview notes and a video routinely
recorded in order to protect the result of a case on which they
had never worked and which was resolved by jury verdict nearly two
decades earlier.

Rather, the record strongly indicates that

neither Pennica nor Soucie was aware of any obligation to provide
their notes and the recording in a closed case to the DA or to
post-conviction counsel with whom they had no interaction.
Soucie and Pennica’s motion for summary judgment on this claim
will

therefore

be

granted.

Because

Howard

has

failed

to

demonstrate sufficient evidence from which a jury could reasonably
conclude that Soucie and Pennica acted intentionally, the court
need not address their alternative argument that they are entitled
to qualified immunity.
2.

Obstruction of Justice

Soucie and Pennica also seek summary judgment on Howard’s
state

law

claim

for

obstruction

of

justice

against

them.

Obstruction of justice, a common law claim in North Carolina, is
broadly defined as “any action intentionally undertaken . . . for
117

the

purposes

of

obstructing,

impeding,

or

hindering

plaintiff’s ability to seek and obtain a legal remedy.”

[a]

Braswell

v. Medina, 805 S.E.2d 498, 509 (N.C. Ct. App. 2017) (quoting
Blackburn v. Carbone, 703 S.E.2d 788, 795 (N.C. Ct. App. 2010));
see also Jones v. City of Durham, 643 S.E.2d 631, 633 (N.C. Ct.
App. 2007) (quoting Broughton v. McClatchy Newspapers, Inc., 588
S.E.2d 20, 30 (N.C. Ct. App. 2003)).
Howard
suppression

argues
claim

that

the

supports

same

his

conduct

that

obstruction

of

supports
justice

his

claim.

Soucie and Pennica respond similarly that Howard has failed to
demonstrate sufficient evidence from which a jury could reasonably
conclude that they intentionally withheld evidence.

For the same

reasons Howard’s suppression fails –- that, construing the facts
in

the

light

demonstrate
intentionally

a

most

favorable

genuine

to

dispute

disregarded

the

Howard,
whether

September

the

record

Soucie
2011

and
Order

does

not

Pennica
--

his

obstruction claim fails as well. Thus, Soucie and Pennica’s motion
for summary judgment on Howard’s obstruction of justice claim will
be granted.
3.
Howard’s

Intentional Infliction of Emotional Distress
claim

for

intentional

infliction

of

emotional

distress also rests on his contention that Soucie and Pennica acted
intentionally in not disclosing their notes and the video recording
of their session with Jones.

This claim, too, rises or falls on
118

proof of an intentional violation of the September 2011 Order.
Therefore, for the reasons noted above, it fails.

Soucie and

Pennica’s motion for summary judgment as to Howard’s claim for
intentional infliction of emotional distress will be granted as
well.
E.

City of Durham

The City of Durham moves for summary judgment on all of
Howard’s federal constitutional claims against it on the grounds
that Howard has failed to forecast evidence of an unconstitutional
policy, custom, or practice.

(Docs. 81, 85.)

The City further

argues that Howard’s state law claims of obstruction of justice,
intentional

infliction

of

emotional

distress,

and

malicious

prosecution fail to withstand summary judgment because of both the
derivative nature of the claims and governmental immunity.
1.

Monell Claims

To prevail on a § 1983 claim against a municipality, a
plaintiff must demonstrate a constitutional violation as a result
of an official policy, practice, or custom of the municipality.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). However,
a municipality may not be held liable for a § 1983 claim based on
the acts of its employees under a respondeat superior theory of
liability.

Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.

397, 403 (1997); see also Pembaur v. City of Cincinnati, 475 U.S.
469, 479 (1986) (“The ‘official policy’ requirement was intended
119

to distinguish acts of the municipality from acts of employees of
the municipality.”).

A policy, practice, or custom for which a

municipality may be held liable can arise in four ways: “(1)
through

an

express

policy,

such

as

a

written

ordinance

or

regulation; (2) through the decisions of a person with final
policymaking authority; (3) through an omission, such as a failure
to

properly

train

officers,

that

manifest[s]

deliberate

indifference to the rights of citizens; or (4) through a practice
that is so persistent and widespread as to constitute a custom or
usage with the force of law.”

Lytle v. Doyle, 326 F.3d 463, 471

(4th Cir. 2003) (alteration in original) (internal quotations
omitted).

A “final policymaker” under Monell is “someone who has

the responsibility and authority to implement final municipal
policy with respect to a particular course of action.”
(internal quotations omitted).

Id. at 472

This sort of policymaking refers

to the “authority to set and implement general goals and programs
of municipal government, as opposed to discretionary authority in
purely operational aspects of government.”
F.2d 1380, 1386 (4th Cir. 1987).
state law.
(1988)

Spell v. McDaniel, 824

This is an issue determined by

City of St. Louis v. Praprotnik, 485 U.S. 112, 124

(plurality

opinion);

Riddick

v.

Sch.

Portsmouth, 238 F.3d 518, 523 (4th Cir. 2000).

Bd.

of

City

of

In considering

North Carolina law, the court must consider “whether policymaking
authority in fact rests where state law has placed it.”
120

Lytle,

326 F.3d at 472.

In so doing, the court “must look to the relevant

legal materials, including state and local positive law, as well
as custom or usage having the force of law.”

Hunter v. Town of

Mocksville, 897 F.3d 538, 555 (4th Cir. 2018) (quoting Riddick,
238 F.2d at 523).
Howard expressly limits his Monell claim to conduct occurring
up to his conviction in 1995, and more specifically, to alleged
misconduct committed by Dowdy and Smith.46

The City of Durham

argues generally that Howard has failed to forecast evidence
sufficient to establish a Monell violation. In his response brief,
Howard urges two theories of liability involving only the conduct
of Dowdy.
First,

Each will be addressed in turn.
Howard

argues

that

the

City

ratified

Dowdy’s

misconduct “through its maintenance of blatantly insufficient
systems of supervision and discipline despite notice of Dowdy’s
ongoing violations.”

(Doc. 87 at 99.)

Howard argues that Dowdy’s

supervisors, Sergeant M.T. Bowers and Captain E.E. Sarvis, knew of
Dowdy’s unconstitutional actions, were directly involved in the
Washington murder investigations, and did nothing to stop him.
Additionally, Howard argues that the DPD Police Chief became
directly involved in the unconstitutional actions because Dowdy
coordinated with him to obtain an offer of a large money reward

46

Howard had included DPD Officer E.E. Sarvis in the complaint but has
since dismissed all claims against him. (Doc. 20.)

121

from the Governor of North Carolina.

Howard urges that, given

“[t]he sheer amount of flagrant misconduct in this case alone
suggests”

that

constitutional

these

supervisors

violations.

(Id.

were

at

aware

100.)

of

Dowdy’s

Furthermore,

he

contends, because the “high-level supervisors” were aware of the
problems in the Washington murders investigation and failed to
intervene,

they

effectively

ratified

and

misconduct sufficient for Monell liability.

approved

Dowdy’s

(Id. at 103.)

Howard

contends, moreover, that while the actions of Soucie and Pennica
do not subject the City to liability, they are evidence of a
pattern of misconduct within DPD to indicate City liability for
the alleged constitutional violations at issue here. (Id. at 104.)
Under

this

standard,

Howard’s

ratification

claims

fail.

Howard does not contend that any of Dowdy’s direct supervisors can
be considered a final policymaker. That is because police captains
and lieutenants, absent some showing of delegation of power, are
not final policymakers for a municipality.

See Lytle, 326 F.3d at

472-73 (“The police department has multiple captains and multiple
lieutenants, and it is far-fetched to assert that each of these
individuals has the power to be a final policymaker for the
city.”).

Moreover, Howard has not directed the court to any law

or evidence that a final policymaker delegated final decisionmaking authority to Dowdy’s direct supervisors such that they too
could be considered policymakers sufficient to establish liability
122

for the City.

Id.

Thus, the only basis for Howard’s argument of

Monell liability via ratification to prevail is if the DPD Police
Chief

held

final

policymaking

authority

and

ratified

Dowdy’s

actions.
Here, too, Howard’s claim falters.

As a preliminary matter,

Howard fails to cite any municipal code, ordinance, or case law
demonstrating
policymaking

that

the

authority,

DPD

Police

either

Chief

from

has

positive

delegation of powers from the City of Durham.

relevant
law

or

final

from

a

But even if the

chief had such authority, as the City appeared to contemplate at
oral argument (Doc. 117 at 87:11-14), there is no evidence that he
ratified Dowdy’s allegedly unconstitutional actions.
Howard

rests

his

ratification

argument

on

two

points.

Initially, he points to the chief’s coordination with Dowdy some
three months after the murders to submit a letter to the Governor
seeking

authorization

for

a

$10,000

regarding the Washington murders.

reward

for

information

Howard argues that the letter

contained a material misrepresentation –- that there were no leads
in the case -- even though Dowdy suspected Howard as the culprit.
Even if untrue, that representation was not unlawful.

The statute

authorizes the Governor to offer a reward “[w]hen it shall appear
to [him], upon satisfactory information furnished to him, that a
felony . . . has been committed [in North Carolina], whether the
name or names of the person or persons suspected of committing
123

the . . . crime be known or unknown.”

N.C. Gen. Stat. § 15-53.1.

Nor does the misrepresentation suggest that the chief knew about
and approved of Dowdy’s other alleged misconduct.
485 U.S. at 127.

Actually, the opposite.

See Praprotnik,

It tends to indicate an

ongoing effort to gather more leads.
Howard’s other contention is that “[t]he sheer amount of
flagrant misconduct in this case” raised “glaring red flags” and
“suggests” that Dowdy’s direct supervisors must have known and,
because they reported to the chief, the chief necessarily ratified
them by failing to act.

(Doc. 87 at 100.)

This is insufficient.

Howard has presented no evidence that Dowdy’s supervisors, and
more importantly, the chief, knew of the alleged misconduct.
Because the record lacks evidence that the DPD Police Chief knew
of Dowdy’s allegedly wrongful actions and subsequently ratified
them, and because Dowdy’s supervisors are not final policymakers,
Howard’s ratification theory of liability fails.
Martin,

355

F.3d

766,

782-83

(4th

Cir.

See Love-Lane v.

2004)

(holding

that

plaintiff must show the municipality or final policymaker “was
aware of the constitutional violation and either participated in,
or

otherwise

condoned

it”);

cf.

Spell,

824

F.2d

at

1392-95

(recounting the numerous witnesses who testified at trial to
establish municipal liability).
Howard’s alternative basis for establishing Monell liability
focuses on the failure to disclose that Jackson was a DPD paid
124

informant.

As an alternative to his claim that Dowdy suppressed

Jackson’s informant status, Howard argues that DPD had a custom,
policy, and practice of segregating information about informants
that,

combined

with

insufficient

training,

violations with respect to Roneka Jackson.

caused

the

Brady

Howard points to the

testimony of Betty Boswell that she not only never asked informants
if they were serving as witnesses but directed them not to disclose
that fact to anyone, including DPD officers.
156:24-164:9, 166:25-167:13.)

(Doc. 88-16 at

As a result, she prevented herself

from knowing whether the informant was also a DPD witness.
at 163:25-164:7, 211:5-212:20.)
of

DPD

Captain

Kelly,

who

(Id.

Howard also cites the affidavit

testified

that

DPD

disclosed

an

informant’s identity only to the officer registering the informant
(and

possibly

her

partner)

as

well

as

the

Commander

of

the

Organized Crime Division and not to other officers because it would
be “dangerous and impractical.”
stated

that

it

would

be

(Doc. 84 ¶¶ 10, 19.)

“impractical

and

Kelly also

extraordinarily

burdensome” to cross-check a witness list with the Organized Crime
Division’s confidential informant registry due to the volume of
cases and lack of personnel.

(Id. ¶ 21.)

Finally, Howard relies

on the deposition testimony of Dowdy, wherein he claims he never
knew of Jackson’s informant status or relationship with the New
York Boys.
This

(Doc. 87-2 at 267:25-269:25, 312:19-314:18.)
alternative

claim

also
125

fails.

Even

if

the

DPD’s

Organized Crime Division’s handling of informants constituted a
policy, Howard has not shown that a final policymaker knew of or
ratified it.

Love-Lane, 355 F.3d at 782-83.

Nor has he shown

that a final policymaker had delegated policymaking authority to
subordinate officers (such as Martin or Kelly) who knew of or
ratified the conduct.
This leaves two ways by which Howard may establish Monell
liability as to his claim about failing to disclose informants: by
demonstrating an omission, such as a failure to properly train
officers, thus manifesting deliberate indifference to the rights
of citizens; or by showing the existence of a practice that is so
persistent and widespread as to constitute a custom or usage with
the force of law.

See Lytle, 326 F.3d at 471.

A municipality may be held liable for a failure to adequately
train its employees.
(1989).

City of Canton v. Harris, 489 U.S. 378, 388

To impose liability under § 1983 on a municipality for a

failure to train, that failure must reflect the municipality’s
deliberate indifference to the rights of its citizens.
Deliberate

indifference

is

a

“stringent

standard

of

Id.
fault,

requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.”

Connick v. Thompson, 563 U.S.

51, 61 (2011) (quoting Bryan Cty., 520 U.S. at 410).

The Supreme

Court has found that, to demonstrate deliberate indifference for
purposes of failure to train, a plaintiff would ordinarily present
126

evidence of a “pattern of similar constitutional violations by
untrained employees.”
of

constitutional

Id. at 62.

violations,

Without evidence of a pattern

a

plaintiff

will

struggle

to

establish municipal liability, as a “decisionmaker[] can hardly be
said to have deliberately chosen a training program that will cause
violations of constitutional rights” if the decisionmaker lacks
notice that the training is deficient.
exists

in

which

a

plaintiff

may

Id.

A ”rare” exception

establish

“single-incident

liability” based on the failure to adequately train officers.

Id.

at 63-64; see also Jones v. City of Martinsburg, 961 F.3d 661, 672
(4th Cir. 2020) (“[A] single incident is almost never enough to
warrant municipal liability.”).
Here, there is no evidence of a pattern of failure to disclose
a testifying witness’s DPD informant status. Perhaps that reflects
the practical problems of allowing an informant to testify in
criminal cases.

Nevertheless, Howard’s failure to train claim

fails for a more fundamental reason; he has not shown that the
municipality knew or should have known about a deficiency in the
officers’ training.

See Jones, 961 F.3d at 672 (noting in failure

to train case that “[a]t its core, the strict Monell test asks for
some level of notice”).

Howard has not shown that a policymaker

or the municipality itself knew that its training regarding the
disclosure
inadequate.

of

the

status

of

confidential

informants

was

Without this showing, he cannot also prove that the
127

deficiency “reflect[ed] a deliberate or conscious choice by the
municipality.”

Id. (alteration in original) (quoting Doe v.

Broderick, 225 F.3d 440, 456 (4th Cir. 2000)).

Thus, Howard has

failed to establish a Monell claim for failure to adequately train.
For these same reasons, Howard has failed to demonstrate his
last basis for liability.

There is no record evidence that DPD

had a persistent and widespread practice of failing to disclose
the status of confidential informants to other departments within
the DPD when the witnesses were offered to testify.

This theory

of liability requires a demonstration that “a pattern of comparable
practices

has

become

actually

responsible policymakers.”

or

constructively

Spell, 824 F.2d at 1391.

known

to

Thus, in

order for the City to be held liable, (1) it must have actual or
constructive knowledge “of the custom and usage by its responsible
policymakers,

and

policymakers,

‘as

(2)
a

there

matter

must

of

be

specific

a

failure

intent

or

by

those

deliberate

indifference,’ to correct or terminate the improper custom or
usage.”

Randall v. Prince George’s Cty., 302 F.3d 188, 210 (4th

Cir. 2002) (quoting Spell, 824 F.2d at 1391).
Actual knowledge may be shown “by recorded reports to or
discussions by a municipal governing body.”
1387.

Spell, 824 F.2d at

Constructive knowledge may be shown “by the fact that the

practices have been so widespread or so flagrant that in the proper
exercise of its official responsibilities, the [municipality]
128

should have known of them.”

Id.

Proof of a single violation will

not support the inference that the violation occurred because of
a municipality’s “condoned custom of comparable practices.”

Id.;

see also Owens v. Balt. City State’s Att’ys Off., 767 F.3d 379,
403 (4th Cir. 2014) (“Sporadic or isolated violations of rights
will not give rise to Monell liability.”).
Howard

has

failed

to

satisfy

this

“stringent”

burden.

Although he argues that he has shown that Roneka Jackson’s status
as a confidential informant was not recorded in cases in which she
provided witness statements, this is insufficient.

See Spell, 824

F.2d at 1391-95 (describing the testimony of many witnesses showing
“in

great

factual

detail”

the

inner

workings

of

a

police

department’s custom or practice of encouraging excessive force).
Furthermore, even if the cases involving Jackson were sufficient
to show that a custom existed, Howard has presented no evidence
that a policymaker was either actually or constructively aware of
it.

Id.

at

1394

(describing

evidence

showing

participated and condoned police misconduct).

police

chief

Thus, Howard has

failed to show that DPD had a persistent practice of failing to
disclose the status of confidential informants who were offered as
witnesses such that municipal liability may attach.
Therefore, Howard has failed to adduce evidence sufficient to
establish municipal liability for the alleged deprivation of his

129

rights, and the City’s motion for summary judgment on this basis
will be granted.
2.

State Law Claims

The City of Durham seeks summary judgment as to Howard’s state
law claims.

As a result of the parties’ stipulation of dismissal

of certain claims and parties (Doc. 20) and this court’s March 31,
2018, memorandum opinion and order dismissing certain claims (Doc.
22), the only remaining state law claims against the City are those
related to Soucie and Pennica for obstruction of justice and
intentional infliction of emotional distress.47
The City argues that it is entitled to summary judgment on
those claims to the extent they are dismissed against Soucie and
Pennica. Alternatively, it contends it is entitled to governmental
immunity for any claim arising out of actions taken prior to
January 20, 2004.

Howard’s response is based on the viability of

the claims against Soucie and Pennica.

As the court will grant

Soucie and Pennica summary judgment as to those claims, and because
the City’s liability is derivative, the City’s motion for summary
judgment as it relates to these remaining state law claims will be
granted.48
47

The City mistakenly claims that Howard’s state malicious prosecution
claim was brought against Soucie and Pennica. (Doc. 85 at 44; Doc. 851 at 2.)
48

The City is named in Count 5, alleging negligence, but it is based on
the actions of Soucie and Pennica. The court’s previous dismissal of

130

3.

State Constitutional Claims

Howard alleges a direct claim against the City of Durham under
Article I §§ 1, 18, 19, and 21 of the North Carolina Constitution.
(Doc. 1 ¶ 172.)

He seeks damages for physical, emotional, and

pecuniary injuries he claims are a result of Defendants’ alleged
misconduct.

(Id. ¶¶ 174-75.)

The City moves for judgment on the

pleadings as to this constitutional claim.

(Docs. 73, 74.)

A motion for judgment on the pleadings is reviewed by the
same standard as that applicable to a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014).

In

other words, the court considers whether the factual allegations
in the complaint, which are accepted as true, “plausibly suggest
an entitlement to relief.”
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 681

The only difference is that a under a Rule 12(c) motion,

the court may consider the complaint, the answer, and documents
incorporated by reference into these pleadings.

Mendenhall v.

Hanesbrands, Inc., 856 F. Supp. 2d 717, 724 (M.D.N.C. 2012).
“Specifically, exhibits integral to and explicitly relied on in
the complaint may be reviewed, provided their authenticity is not
in question.”

Colin v. Marconi Com. Sys. Emps.’ Ret. Plan, 335 F.

the negligence claim against Soucie and Pennica (Doc. 22 at 24-25)
effectively eliminates this basis for liability against the City,
although it does not appear that the City has moved for summary judgment
as to that claim.

131

Supp. 2d. 590, 596 (M.D.N.C. 2004) (internal quotation marks
omitted).
The City of Durham argues that under North Carolina law a
plaintiff may bring a

direct claim under the North Carolina

Constitution only when no other adequate state remedy is available.
Howard contends that, to the extent that this court grants summary
judgment on his other state claims, Howard would lack an adequate
state remedy and the state constitutional claims against the City
should survive.
The state constitutional remedy is a narrow one.

“[A] direct

cause of action under the State Constitution is permitted only ‘in
the absence of an adequate state remedy.’”

Davis v. Town of S.

Pines, 449 S.E.2d 240, 247 (N.C. Ct. App. 1994) (quoting Corum v.
Univ. of N.C. ex rel. Bd. of Governors, 413 S.E.2d 276, 289 (N.C.
1992)).

“Thus, the availability of a direct cause of action under

the North Carolina Constitution depends on the injury [Howard]
seeks to remedy, and whether a state law claim is available to
him.”

White v. City of Greensboro, 408 F. Supp. 3d 677, 699

(M.D.N.C. 2019).

“[A]n adequate state remedy refers to the

possibility of relief, and it is not necessary that a plaintiff
prevail on his other state law claims.”

Id. (internal quotation

marks omitted); see, e.g., Wilcox v. City of Asheville, 730 S.E.2d
226, 237 (N.C. Ct. App. 2012) (“[A]dequacy [of a remedy] is found
not in success, but in chance.”), disc. rev. denied, 738 S.E.2d
132

401 (N.C. 2013).
Howard’s

argument

that

his

direct

constitutional

claims

survive if his other state claims are dismissed is incorrect.

The

fact that Howard has developed his claims thus far demonstrates
the existence of adequate state remedies for his injuries.

See

Craig ex rel. Craig v. New Hanover Cty. Bd. of Educ., 678 S.E.2d
351, 355 (N.C. 2009) (noting that an adequate state remedy must
allow a plaintiff to “have at least the opportunity to enter the
courthouse

doors

and

present

his

claim”).

His

direct

constitutional claims do not address injuries that are distinct
from his other injuries arising out of his state law claims against
the

Individual

Defendants

or

the

City

of

Durham.

That

he

ultimately fails as a factual matter does not give rise to a claim
under the North Carolina Constitution.

See Copper ex rel. Copper

v. Denlinger, 688 S.E.2d 426, 429 (N.C. 2010).

Therefore, the

City of Durham’s motion for judgment on the pleadings as to
Howard’s Eighth Cause of Action for a direct claim under the North
Carolina Constitution (Doc. 73) will be granted.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED as follows:
Defendant

City

of

Durham’s

motion

for

judgment

on

the

pleadings (Doc. 73) is GRANTED, and Howard’s direct constitutional
claims (Eighth Cause of Action) are DISMISSED;
133

Defendant Milton Smith’s motion for summary judgment (Doc.
75) is GRANTED as to Howard’s common law malicious prosecution
claim (Seventh Cause of Action), which is DISMISSED, but is
otherwise DENIED as to Howard’s § 1983 fabrication claim (First
Cause of Action) and intentional infliction of emotional distress
claim (Sixth Cause of Action);
Defendants Michele Soucie and Scott Pennica’s motion for
summary judgment (Doc. 77) is GRANTED, and the claims Howard brings
against them in his § 1983 claim (Third Cause of Action), common
law obstruction of justice claim (Fourth Cause of Action), and
intentional infliction of emotional distress claim (Sixth Cause of
Action) are DISMISSED WITH PREJUDICE;
Defendant Darrell Dowdy’s motion for summary judgment (Doc.
79) is GRANTED IN PART as to Howard’s § 1983 malicious prosecution
claim (First Cause of Action) to the extent noted herein, as well
as to his common law malicious prosecution claim (Seventh Cause of
Action), which is DISMISSED; but is otherwise DENIED; and
Defendant City of Durham’s motion for summary judgment (Doc.
81) is GRANTED, and Howard’s § 1983 Monell claims (Second Cause of
Action) as well as the derivative state law claims for common law
obstruction of justice (Fourth Cause of Action) and intentional
infliction of emotional distress (Sixth Cause of Action) are
DISMISSED.

134

/s/
Thomas D. Schroeder
United States District Judge
September 16, 2020

135