HOWARD v. CITY OF DURHAM et al

Filing 360

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 5/26/2022; that Dowdy's renewed motion for judgment as a matter of law (Doc. 339 ) is DENIED. (Carter, Alexus)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DARRYL ANTHONY HOWARD,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
DARRELL DOWDY,
Defendant.

1:17cv477

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This is a wrongful conviction case that, after a nearly fourweek jury trial in November 2021, resulted in a $6 million verdict
for the Plaintiff, Darryl Howard.

Before the court is Dowdy’s

renewed motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(b) (Doc. 339), which is fully briefed.
For the reasons set forth below, Dowdy’s motion will be denied.
I.

BACKGROUND
On November 27, 1991, Doris Washington and her 13-year-old

daughter, Nishonda, were found dead in their Durham, North Carolina
apartment after the local fire department responded to reports of
a fire.

Doris died from a blunt force strike to the abdomen;

Nishonda was strangulated.

Medical evidence suggested both had

some form of prior sexual activity.
investigation

by

the

Durham

Defendant Dowdy conducted the

Police

Department

(“DPD”),

eventually Howard was charged with the murders and arson.

and

In 1994,

DNA evidence ruled Howard out as a contributor to any sexual
activity involving the victims, and he was released from custody
pending trial.
following

Howard was tried for the crimes in March 1995, and

testimony

by

multiple

witnesses

including

Howard

himself, a jury convicted Howard and sentenced him to 80 years of
imprisonment.

But in 2009, Howard took advantage of a new state

law and sought and obtained retesting of the semen and sperm taken
from

the

victims,

which

linked the DNA

contributed

to

Doris

Washington to an individual named Jermeck Jones; based on this,
Howard obtained a December 2016 state court ruling granting him a
new trial.

The State thereafter dismissed all charges, and this

lawsuit followed.

On April 30, 2021, North Carolina Governor Roy

Cooper issued Howard a Pardon of Innocence.
Trial commenced on November 8, 2021, and concluded on December
1, 2021, when the jury returned a verdict in favor of Howard and
awarded him $6,000,000.00 in compensatory damages.

(Doc. 327.)

Howard presented 13 witnesses, either in person or by deposition.
Three bases for liability were submitted to the jury, all pursuant
to 28 U.S.C. § 1983: whether Dowdy fabricated two pieces of
evidence in the criminal trial -- a taped statement from a witness
named Angela Oliver1 and evidence regarding Dowdy’s investigation

Angela Oliver went by various names during the Washington homicide
investigation and Howard’s 1995 criminal trial, including: Angela
Southerland, Theresa Simpson, and Angela Rogers. (Doc. 72-1 at 283:411, 305:23-306:13.)
1

2

into whether Nishonda Washington was sexually assaulted; whether
Dowdy suppressed evidence by failing to disclose that a state
witness in the criminal trial, Roneka Jackson, was a confidential
informant for the DPD and was associated with the New York Boys
gang;

and

whether

Dowdy

engaged

in

a

bad

faith

failure

to

investigate the source of the semen found in Nishonda Washington
in order to cover up his fabrication of evidence with respect to
Angela Oliver.
At the close of evidence, Dowdy moved for judgment as a matter
of law on all three issues, arguing principally that Howard had
failed to carry his burden in proving his suppression or inadequate
investigation claims and had failed to show

that the alleged

fabrication of Angela Oliver’s statement could have been a butfor or proximate cause of Howard’s conviction.
334 at 248:10-249:1.)

(Doc. 324; Doc.

The court reserved ruling.

(Doc. 334 at

271:13-24.)
The jury was charged on November 30, 2021, and deliberated
until the following day.

In returning its verdict, the jury found

that Dowdy had denied Howard’s constitutional right to due process
by fabricating evidence and by engaging in a bad faith failure to
investigate.
not

(Doc. 327.)

suppressed

evidence

However, the jury found that Dowdy had
of

the

state

witness’s

status

confidential informant with connections to a local gang.

as

a

(Id.)

On the same day, the court ruled on Dowdy’s motion for judgment as
3

a matter of law.

(Doc. 329.)

The court denied Dowdy’s motion as

to suppression, finding it moot in light of the jury’s verdict.
The court further denied Dowdy’s motion as to Howard’s fabrication
and bad faith failure to investigate claims after determining there
was sufficient evidence from which a jury could have reached the
verdict it returned.

(Doc 336 at 11:8-14.)

The court entered

judgment on December 7, 2021 (Doc. 330), which it amended on
December 9 (Doc. 331).2
II.

ANALYSIS
Dowdy renews his motion for judgment as a matter of law based

on two arguments. First, he contends that Howard failed to proffer
sufficient evidence from which the jury could have concluded that
the fabrication of Angela Oliver’s testimony at Howard’s criminal
trial was a but-for and proximate cause of his conviction in 1995.
(Doc. 340 at 6.)

Second, he asserts that there is insufficient

evidence to support Howard’s bad faith failure to investigate
claim.
A.

(Id. at 16.)
Standard of Review

“To challenge the sufficiency of the evidence in a civil jury
trial . . . a party must comply with Federal Rule of Civil Procedure
50,” which “sets out two different stages for such a challenge.”

The difference between the two is the amended judgment enumerates the
jury’s monetary award of $6,000,000.00 rather than entering judgment in
favor of Howard “in accordance with the verdict” as in the initial
judgment.
2

4

Belk, Inc. v. Meyer Corp., 679 F.3d 146, 154 (4th Cir. 2012). Rule
50(a) “allows a party to challenge the sufficiency of the evidence
before a case is submitted to the jury,” whereas Rule 50(b) “sets
forth the requirements for challenging the sufficiency of the
evidence after the jury verdict and entry of judgmen t.”
155.

Id. at

Judgment as a matter of law is appropriate where a plaintiff

has been fully heard

on

an

issue but has failed

sufficient evidence for a jury to find for him.

to

produce

Fed. R. Civ. P.

50(a)-(b); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 149 (2000).

The standard for judgment as a matter of law

mirrors the standard for granting summary judgment “such that ‘the
inquiry under each is the same.’”

Reeves, 530 U.S. at 150 (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986)); see
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644
(4th Cir. 2002) (“[a] Rule 50(b) motion for judgment as a matter
of law follows the same standard as a Rule 56 motion for summary
judgment).

A motion under Rule 50(b) “tests the legal sufficiency

of a claim, that is, assesses whether the claim should succeed or
fail because the evidence developed at trial was insufficient as
a matter of law to sustain the claim.”
155.

Belk, Inc., 679 F.3d at

Because the Defendant moved for judgment as a matter of law

at the end of Howard’s evidence and then renewed the motion at the
end of all evidence, the court considers the record at each
appropriate time, though Dowdy’s briefing only addresses the trial
5

record as a whole, and the court is to “review the record as a
whole” but “must disregard all evidence favorable to the moving
party that the jury is not required to believe.”
at 151.

Reeves, 530 U.S.

All reasonable inferences must be drawn in favor of the

nonmoving party, and the court is not permitted to make credibility
determinations or weigh the evidence.

Id. at 150.

The limited

review of the evidence is required by “the importance of the jury’s
role in trials . . . enshrined in the Seventh Amendment.”

Burgess

v. Goldstein, 997 F.3d 541, 554 (4th Cir. 2021).
B.

Fabrication of Angela Oliver’s Testimony

Howard presented two bases for his § 1983 claim that Dowdy
denied his due process rights by fabricating evidence.

First,

Howard claimed that Dowdy fabricated statements from Angela Oliver
by interrupting the tape recording of his 1994 interview of her in
order to improperly feed her inculpatory information so that she
would give false answers that implicated Howard in the Washington
murders.

Second, Howard claimed that Dowdy fabricated evidence

regarding his investigation into whether Nishonda Washington was
sexually assaulted by falsely advising the prosecutor that he had
evidence that she had been staying with her boyfriend up until the
evening before her murder, which would tend to rule out sexual
assault as part of the crimes and explain the exculpatory DNA
evidence found in Nishonda’s rape kit.
At the outset, Howard correctly points out that Dowdy’s Rule
6

50 motion does not challenge the sufficiency of the evidence
presented in support of the second basis for Howard’s fabrication
claim –- that Dowdy fabricated his investigation into whether 13year-old Nishonda Washington was sexually assaulted in connection
with her murder.

(Doc. 344 at 3.)

The evidence at trial on this

issue tended to show that Dowdy advised the prosecutor, Michael
Nifong, that he had conducted an investigation into Nishonda’s
whereabouts before the murder and confirmed that she had returned
home

the

day

of

the

murder,

thus

tending

to

suggest

prior

consensual sexual conduct with an older boyfriend and tending to
rule out sexual assault in connection with her murder.

Evidence

related to this claim is more fully discussed later in this
memorandum opinion in connection with Dowdy’s challenge to the
verdict on Howard’s bad faith failure to investigate. 3

Because

this unchallenged ground provides an independent basis to support
the verdict, on this basis alone the Rule 50 motion is denied.
See, e.g., Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber
Co., 682 F.3d 292, 313-14 (4th Cir. 2012) (affirming district
court’s denial of Defendant’s Rule 50(b) and Rule 59 motions even
though the jury’s verdict was reversed on some claims, because the

While the bad faith failure to investigate ground required Howard to
prove that Dowdy acted with bad faith, this alternative basis for the
fabrication of evidence ground did not require any proof of bad faith.
See, e.g., Massey v. Ojaniit, 759 F.3d 343, 354 (4th Cir. 2014) (a § 1983
claim based on fabrication requires proof of a deliberate fabrication
of false evidence that resulted in the deprivation of a plaintiff’s
liberty).
3

7

verdict was still independently supported by other claims).
As

for

the

unpersuasive.

first

ground,

Dowdy’s

contention

The evidence at trial was as follows.

is

also

On October

10, 1992, DPD officers, other than Dowdy, arrested Angela Oliver
for prostitution.

(Doc. 294-3 at 14:12-24.)

After her arrest,

those officers informed Dowdy that Oliver claimed to have been
with Howard the night of the Washington murders.
320:24-321:5.)

(Doc. 87-2 at

The officers also told Dowdy that

Oliver had

information that only an individual who witnessed the murders would
know.

(Id. at 321:9-12.)

At that point, Dowdy interviewed Oliver

and audio-recorded their conversation.

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

The recording itself (which was in DPD possession) went missing
after the criminal trial, and the only evidence of its contents
comes

from

a

transcription

contained

in

Dowdy’s

file.

The

transcript reflects that Oliver informed Dowdy that she had seen
Howard arguing with Doris Washington about drugs and money the day
of the murders and she had seen Howard attack Doris at the time of
the murders while Howard’s brother, Harvey, was present in the
apartment.

(Doc. 88-32 at 2-3, 6-7, 10.)

However, there were discrepancies that called the validity of
the transcription, and thus the taped interview, into question.
Oliver’s taped interview is approximately 10 minutes long ; yet,
Dowdy’s contemporaneous notes reflect that the interview took
place over 46 minutes.

(Doc. 309 at 25:5-10.)
8

At Howard’s

criminal trial, Dowdy testified that he could not fully explain
this timing difference.

Dowdy justified the time difference by

stating that he may have stopped the interview to “go[] back over
what [Oliver] was saying” or “to clarify some information she may
have been telling [him].”

(Doc. 87-2 at 337:13-14, 338:1-2.)

He

also stated he must have written down the wrong time or been
interrupted by other officers when he stopped the recordings.
(Doc. 72-1 at 385:16-386:8, 401:15-402:11.)

Dowdy reiterated

these justifications to the civil jury in the present action.
(Doc. 309 at 8:11-9:25; 34:12-19.)
Oliver

testified

at

Howard’s

criminal

trial.

She

was

combative, recalcitrant (she had to be arrested to be brought to
court

as a

material

witness

to

testify), and

evasive.

She

testified that Dowdy stopped the tape multiple times because he
said she “wasn’t talking right or something.”
308:8-11.)

(Doc. 289-2 at

She told the criminal jury that she did not know

anything about the Washington murders, even though her recorded
statement reflected details which would only be known by a witness
to the crime.

(Id. at 308:25-309:2.)

She also eventually adopted

the taped recording as accurately reflecting the interview and, at
different times in her testimony, prevaricated between testifying
that the recording (and thus her statement) was truthful, truthful
in part, and something she “d[id]n’t want to talk about.”
72-1 at 300-305.)

(Doc.

Importantly, Oliver was the only witness who
9

claimed to be present in Doris’s apartment during the murders and
to have observed Howard’s alleged attack of Doris, including
knowing about the injury to Doris’s chest which caused her death
and which was not publicly known at the time of her interview.
Dowdy’s

repeated

and

inconsistent

explanations

for

the

time

discrepancies in Oliver’s taped statement called into question the
veracity of the transcript of Oliver’s taped statement.

(Doc. 87-

8 at 36.)
After years of attempting to locate Oliver after the criminal
trial, Howard finally located and deposed her in this case shortly
before trial, and portions of her videotaped deposition were played
to the jury during Howard’s direct case.

Oliver’s testimony was

combative, evasive, and fraught with inconsistencies.4
issues

of

credibility

were

for

the

jury

to

But these

assess,

and

her

testimony is viewed at this stage in the light most favorable to
Howard.
When asked directly by Plaintiff’s counsel whether she had
ever

witnessed

any

part

of

the

Washington

murders,

responded, “I never witnessed any murder in my life.”
3 at 10:13-16.)

Oliver

(Doc. 294-

In fact, Oliver denied being present at the scene

of the Washington murders that night.

(Id. at 10:19-23.)

As to

For example, Oliver claimed to be unable to read but is recorded on
the tape and testified at the criminal trial that she was able to read
well. (Doc. 294-3 at 8:25-9:23.) She also adopted the taped interview
as accurate during the criminal trial (Doc. 72-1 at 300:14-25), though
in this case she renounced it.
4

10

her taped statement to the contrary, Howard’s counsel asked “[i]f
you did not witness the homicide, how did you learn the details
that you –- that are contained in [the transcribed statement] from
your interview [with] Darrell Dowdy?”

(Id. at 17:15-18.)

responded, “He [Dowdy] must have let me know.
the solicitating.
time.

Oliver

I was locked up for

Solicitating ain’t going to carry that much

Why would I know or worry about a murder?”

( Id. at 17:19-

22.)
Oliver was also asked directly about Dowdy stopping the tape
multiple times during their interview.

When asked, “what was

Detective Dowdy doing?” she responded, “Trying to convince me that
I seen something that I didn’t see.”

(Id. at 39:10-12.)

And when

asked, “Is that when Detective Dowdy was providing you information
about

the

“Exactly.

.

.

.

crime?” (id.

at

39:18-21),

Oliver

replied,

Because trust me, I don’t know nothing about this, man.

I was trying to tell you then, I’m telling you now.”
39:22-24.)

(Id. at

Thus, there was sufficient evidence from which a jury

could find fabrication by a preponderance.
It is true that the level of detail Oliver provided in her
lengthy oral and written statement contrasted with her apparent
inability
deposition.

to

coherently

express

herself

in

her

videotaped

While the jury may have wondered whether and how

Oliver could have been successfully coached with so much detail
given her obvious limitations, and while the evidence of the three
11

“clicks” (Doc. 72-1 at 402:1-11) on the tape reflective of stopping
were

demonstrated

to

have

occurred

at

the

beginning

of

statement and not throughout, these were issues for the jury.

the
The

jury could also consider the fact that the physical tape recording
of Oliver’s original statement, which was left in DPD custody
during trial, is missing.
Dowdy argues that Howard “failed to present evidence allowing
a jury to find that the alleged fabrication of Oliver’s statement
was the but-for or proximate cause of Plaintiff’s conviction.”
(Doc. 340 at 6.)

Dowdy argues that this is so because there were

“several other witnesses who provided inculpatory testimony” that
the criminal jury considered, and Howard did not establish that
his convictions were a reasonably foreseeable result of Oliver’s
fabricated statement.

(Id. at 9, 13.)

Howard responds that the

jury “had ample bases to support its finding that Defendant Dowdy’s
fabrication of evidence caused Plaintiff’s wrongful conviction.”
(Doc. 344 at 2.)
In evaluating whether Howard produced sufficient evidence as
to the causation element, the court must determine if the jury
reasonably found in favor of Howard after concluding that “the
facts [shown] by [Howard] demonstrate that the loss of liberty,”
that is, Howard’s conviction for the Washington murders, “resulted
from [Dowdy’s] fabrication of evidence.”
407 F.3d 274, 283 (4th Cir. 2005).
12

Washington v. Wilmore,

Howard was required to show

“both but-for and proximate causation.”
F.3d 636, 647 (4th Cir. 2012).

Evans v. Chalmers, 703

For but-for causation, there must

be sufficient evidence that “the alleged wrongful act(s) caused
[Howard’s] loss of liberty.”
(4th Cir. 2019).

Gilliam v. Sealey, 932 F.3d 216, 238

For proximate cause, Howard was required to

produce sufficient evidence at trial from which the jury could
reasonably conclude “the conviction was a reasonably foreseeable
result of the initial act of fabrication.”

Massey v. Ojaniit, 759

F.3d 343, 354 (4th Cir. 2014) (internal quotations omitted).

In

construing the evidence in the light most favorable to Howard , the
court must draw all reasonable inferences in his favor.
v. Goldstein, 997 F.3d 541, 552 (4th Cir. 2021).

Burgess

Under these

standards, it is apparent that Howard sufficiently carried his
burden.
The jury heard from Michael Nifong, the lead prosecutor in
Howard’s criminal trial.

Nifong testified, without objection,

that he could not “imagine that we could have obtained a conviction
without [Oliver’s] testimony.”
asked

by

Dowdy’s

attorneys

(Doc. 319 at 171:11-15.)

on

cross

examination

When

whether

he

remembered Oliver being brought to testify before the criminal
jury, Nifong responded, “yes . . . she was a very important
witness.”

(Id. at 205:21-206:1.)

Nifong further noted that Dowdy

had not reported having threatened or coerced Oliver to give her
statement and, if he had, Nifong “had a duty to report that to the
13

Court and to the defense counsel.”

(Id. at 172:1-173:3.)

Critically, Nifong’s testimony

came

after

Oliver’s

video

deposition was played for the jury and in which she stated plainly
that the reason she knew details of the murder was because Dowdy
“must have let [her] know” as she “never witnessed any murder in
[her] life.”

(Doc. 294-3 at 10:13-19; 17:15-22.)

Dowdy himself

testified in Plaintiff’s case that before the criminal trial he
believed he could only obtain a successful conviction for the
Washington murders “[a]fter Angela [Oliver’s] statement to me.”
(Doc. 316 at 164:16-23.) Dowdy “did not think or believe [he] could
make -- have a conviction” without Oliver’s statement.
164:24-165:3.)

(Id. at

According to Dowdy, Oliver was the key to Howard’s

conviction, because she “verified the fact that she was there [at
the scene of the murders]” and verified the other information Dowdy
“already had.”

(Id. at 165:4-6.)

In contrast, the jury heard

from Oliver, who plainly testified that she was never at the scene
of the crimes the night of the murders, that she never witnessed
a murder, and that Dowdy fed her information in her statement.
(Doc. 294-3 at 10:13-19; 17:15-22.)
Dowdy contends that Howard fails to demonstrate causation,
pointing to other evidence the State presented at the criminal
trial which he argues was sufficient to support the guilty verdict.
However, much of the evidence was largely circumstantial.

For

example, Dowdy notes Roneka Jackson testified that she heard Howard
14

threaten to kill Doris Washington the day of the murders and saw
him and his brother exit the apartment later that night.
340 at 13.)

(Doc.

He also highlights Rhonda Davis’s testimony that she

went to visit Doris at her apartment about 11:30 p.m. and Howard
answered the door to say, “we’re busy.”
199:17-23.)

(Id. at 14; Doc. 72-1 at

But this was 88 minutes before the fire department

was called. (Doc. 72-1 at 53:11-23.) Another witness, Terry Suggs,
testified

that

he

saw

Howard

near

the

Washington

apartment

approximately three to five minutes before he saw smoke from the
apartment fire.

(Doc. 340 at 14; Doc. 72-1 at 212:3-14.)

Kelvin

Best told the jury that he saw Howard and his brother exiting
Doris’s building that evening carrying a television.
72-1 at 228:6-25.)

(Id.; Doc.

Dwight Moss testified that he heard Howard

threaten to kill Doris earlier that day for “messing up” a drug
deal and that he saw Howard about 11:30 p.m. that evening leaving
the backside of Doris’s apartment; the fire department was called
to the scene at 12:58 a.m.
242:17-243:18.)

Gwendolyn

overheard

at

Howard

Washingtons.

a

(Id. at 14-15; Doc. 72-1 at 53:11-23,
Roper

drink

Taylor

house

that

testified
he

had

that

she

killed

the

(Id. at 15; Doc. 72-1 at 333:2-24); see generally,

Howard v. City of Durham, 487 F. Supp. 3d 377, 392-98 (M.D.N.C.
2020).
Each of these witnesses carried arguable credibility issues,
ranging

from

prior

drug

use
15

and

criminal

histories

to

inconsistencies
criminal jury.

in
Id.

their

stories,

which

were

put

before

the

Nevertheless, Dowdy relies on these witnesses

as well as Robbie Davis, who testified that he heard Howard state
that Doris was going to kill Nishonda for being away with an older
man (Doc. 72-1 at 273:1-24), and Durham Fire Chief Milton Smith,
who testified that Howard told him he and his brother Kenny “did
this thing” in reference to the murders, to argue that there was
insufficient causation evidence to allow Howard’s claim involving
Oliver’s statement to go to the jury. (Doc. 340 at 16.)

According

to Dowdy, “the wealth of inculpatory evidence against [Howard]
described above plus Howard’s own admission that he was at the
scene of the crime near the time of the murders” forecloses the
conclusion that Oliver’s statement was the but-for cause of his
conviction.

(Id.)

However, the jury in the criminal trial also heard from
Howard, who testified in his defense and denied being present or
involved in

the murders.

(Doc. 72-1

at

498:1-7;

536:5-17.)

Further, Howard called one of his girlfriends, Natasha Mayo, to
the stand, who generally corroborated Howard’s testimony that he
was not in the Washington apartment the night of the murders and
that he was not involved in the homicides or arson. (Id. at 480:110.)

In sum, the State put on eight witnesses who all presented

circumstantial

inculpatory

evidence,

while

Howard

himself

testified he had no involvement in the homicides and put forth
16

another witness who corroborated his testimony.

In addition, the

1994 jury had to evaluate Oliver’s recorded statement with her
testimony

at trial.

Oliver’s

statement provided

a

layer

of

credibility beyond that offered by the State’s other witnesses;
she knew details of the crime that were not publicly disclosed,
adding credence to the suggestion that she was at the scene of the
crimes and witnessed Howard commit them.
The civil jury could therefore rely on the two witnesses most
intimately involved with Howard’s criminal prosecution –- the lead
prosecutor on the case, Nifong, and Defendant Dowdy, the lead
detective, both of whom acknowledged in this case that they were
unlikely to have obtained a conviction without Oliver’s testimony.
While Dowdy now points to other inculpatory testimony by other
witnesses at Howard’s criminal trial, Oliver’s testimony not only
put Howard at the scene of the Washington murders, but detailed
how Howard committed those murders with information known only to
the medical examiner and not released to the public.
only

witness

who

purported

to

observe

Howard

She was the

inflict

Doris

Washington’s blunt-force chest injury which caused her death and
to

specifically

place

Howard,

who

otherwise

was

a

frequent

trespasser onto the grounds of the Washingtons’ apartment complex
(and thus seen there commonly by all the witnesses who testified),
in the Washingtons’ apartment during the murders.

A reasonable

jury could conclude that it was not only reasonably foreseeable
17

that Oliver’s fabricated statement proximately caused Howard’s
convictions for the Washington murders, but that the convictions
would not likely have resulted but for her testimony.
For these reasons, the court therefore finds that, after
viewing the evidence in the light most favorable to Howard, he has
produced sufficient evidence from which a reasonable jury could
conclude that Oliver’s statement was fabricated and the but-for
and proximate cause of his wrongful conviction.
C.

Inadequate Investigation

In addition to his claim of fabrication, Howard alleged that
Dowdy failed to investigate the source of semen found in Nishonda
Washington in a bad faith effort to cover up his fabrication after
DNA excluded Howard as the contributor of the semen.

Dowdy

responds, in contrast, that Howard failed to produce any evidence
that, after Oliver gave her statement, “Dowdy intentionally failed
to follow up on an existing lead that pointed to an alternative
suspect for the Washington murders.”

(Doc. 340 at 18-19.)

In general, there is no independent constitutional right to
the investigation of a third party.
224, 227 (4th Cir. 1988).

Sattler v. Johnson, 857 F.2d

However, a claim for a due process

violation for failing to perform an adequate investigation exists
where an officer takes bad faith actions to shield his wrongful
acts, including fabricating testimony.
41.

Gilliam, 932 F.3d at 240-

Howard thus needed to produce sufficient evidence at trial
18

from which a reasonable jury could conclude that Dowdy’s failure
to investigate the source of the semen found in Nishonda was the
product of a bad faith attempt to shield his fabrication of
Oliver’s statement.

Put another way, Howard claims that Dowdy’s

failure to investigate Nishonda’s murder as contemporaneous with
a sexual assault (anal rape of a 13-year-old) was purposeful
because Dowdy had “tunnel vision” to prosecute Howard and knew
that details indicating a sexual assault occurred as part of the
crimes

would

be

inconsistent

with

Oliver’s

transcribed,

and

allegedly fabricated, statement blaming Howard for a murder that
did not involve any sexual assault.
Dowdy points to Gilliam v. Sealey to argue that Howard’s
evidence

fails

to

investigation claim.

sufficiently

support

the

inadequate

(Doc. 349 at 6); 932 F.3d 216, 240-42 (4th

Cir. 2019), cert. denied, 140 S. Ct. 2641 (2020).

Gilliam stemmed

from the wrongful conviction of two teenage boys who brought suit
against

the

law

enforcement

officers

who

investigated

the

underlying crime, alleging the officers coerced confessions from
the boys and then failed to adequately investigate other suspects.
On September 24, 1983, the victim, Sabrina Buie, went missing.
Id. at 222.

Two days later, her body was discovered in a field

with overwhelming evidence that she had been sexually assaulted.
Id.

While processing the crime scene, law enforcement officers

discovered three beer cans, three match sticks, one cigarette butt,
19

and two wooden sticks coated with blood.
Three

days

after

discovery

of

Id.
Buie’s

body,

officers

fingerprinted and questioned Henry McCollum, a potential suspect,
at the police station.
McCollum,

an

Id.

At the conclusion of the questioning,

intellectually

disabled

19-year-old,

confession drafted by the interviewing detectives.

signed

a

Id. at 233.

The confession also implicated McCollum’s brother, Leon Brown, as
participating in the crime.

Id.

After signing the confession,

McCollum and Brown were arrested and charged with murder.

Id.

Despite arguments that the confessions were coerced, a jury found
McCollum guilty of rape and first-degree murder and sentenced him
to death.

Id. at 224.

A separate jury found Brown guilty of rape

and sentenced him to life in prison.

Id. at 225.

In 2009, roughly 17 years after his conviction, Brown sought
assistance from the North Carolina Innocence Inquiry Commission,
which accepted both Brown’s and McCollum’s cases.
investigation,

the

Commission

discovered

DNA

Id.

During its

evidence

on

the

cigarettes located near Buie’s body which matched the DNA of Roscoe
Artis, a man known to law enforcement officers during the Buie
murder investigation.

Id.

Artis was convicted of rape and murder

in a crime “strikingly similar to Buie’s murder” when the body of
another woman was found just one month after Buie’s.

Id.

As is

the case here, the DNA tested from the scene of Buie’s murder did
not match McCollum or Brown, and the only DNA evidence that was
20

tested after the fact matched someone else –- Artis.
Documents recorded prior to McCollum and Brown’s first trials
listed Artis as a suspect in the Buie murder.

Id. at 228.

On

October 5, 1984, three days prior to McCollum and Brown’s first
trial, investigators submitted Artis’s fingerprints to the State
Bureau of Investigation to compare with those found on the beer
can at the Buie crime scene.
canceled

the

fingerprint

Id.

request

comparison was never completed.
an

additional

witness

had

However, the investigators
on

Id.

the

same

day,

and

the

This, despite the fact that

come

forward

and

informed

the

investigators that she “witnessed Artis attacking Buie on the night
of the murder, and that she attempted to intervene[,] but Artis
frightened her away.”
she

provided

this

Id.

Although the witness testified that

information

to

one

of

the

investigators,

Detective Sealey, the detective’s contemporaneous investigation
notes did not reflect her testimony.
Additionally,

investigators

Id.

interviewed

L.P.

Sinclair,

a

friend of McCollum and Brown’s, who originally claimed he did not
know anything about Buie’s death.
Bureau of Investigation marked

Id.
him

as

However, when the State
a

suspect

and

ordered

analysis of his fingerprints, Sinclair changed his story and
testified that McCollum had confessed to him the day after Buie’s
murder.

Id.

Sinclair’s fingerprints were not analyzed after he

changed his testimony.
21

Relevant to the claims in this case, McCollum and Brown sued
the investigators, alleging

violations of their

right to due

process when the investigators failed to sufficiently investigate
Artis and Sinclair in connection with Buie’s rape and murder.
at 240.

Id.

McCollum and Brown argued that the investigators had

failed to test whether Artis’s or Sinclair’s fingerprints matched
the print found on the beer can at the crime scene.

Id.

In

affirming the district court’s denial of the defendants’ motion
for summary judgment, the Fourth Circuit noted that McCollum and
Brown’s

claims

investigate
evidence.”

was

were
a

that

result

Id. at 241.

the
of

investigators’

their

bad-faith

“failure
suppression

to
of

That claim could amount to a due process

violation if “the jury concluded that [the investigators’] actions
after [McCollum and Brown’s] arrests

–- including failing

to

adequately investigate Artis and the crime scene . . . –- were
done in bad faith in order to shield [the investigators’] wrongful
acts

related to [McCollum and Brown’s] coerced or fabricated

confessions.”

Id.

In other words, had the investigators failed

to analyze Artis’s or Sinclair’s fingerprints in bad faith to
shield their coercion of McCollum or Brown’s confession, then
McCollum and Brown could establish a due process violation.
Dowdy argues that Howard “did not produce similar evidence
that, after Oliver gave her statement, Dowdy intentionally failed
to follow up on an existing lead that pointed to an alternative
22

suspect

for

the

Washington

murders.”

(Doc.

340

at

18-19.)

However, Gilliam does not require “an existing lead” that points
to another suspect.

All Gilliam requires is sufficient evidence

from which a jury could conclude that Dowdy failed to investigate
material evidence –- here, the whereabouts of Nishonda and her
boyfriend -- in an effort to shield his fabrication of Oliver’s
statement, and Howard has satisfied that requirement.
The autopsy of Nishonda Washington reveled sperm in her anus.
(Doc. 87-18 at 6.)

In February 1993, DPD obtained samples of

Howard’s DNA to test against this sperm.

(Doc. 87-8 at 46.)

A

DNA test from March 1993 excluded Howard as the source of the
sperm.

(Doc. 87-21.)

Dowdy thus understood at that time, before

trial, that if the killer had had sex with Nishonda, Howard was
not the killer.

(Doc. 87-2 at 183:24-184:4.)

The question then

was whether the killer had sex with Nishonda before her death and,
if so, who he was.
Dowdy provided Nifong an answer to the first question –- that
Nishonda had been away from the Washington apartment with her
boyfriend for four or five days and returned the night before the
murders.

(Doc. 72-1 at 423::8-19; Doc. 309 at 97:13-20.)

Based

on this information, Nifong proceeded to trial and presented this
information to the criminal jury. (Doc. 319 at 158:3-25.)

Dowdy’s

theory at the time was that the semen located in Nishonda’s anus
was her boyfriend’s (Doc. 309 at 97:21-98:1), which meant that the
23

killer did not have sex with Nishonda prior to the murders.
According to Dowdy’s representations to Nifong, the DNA testing of
the sperm in Nishonda did not exclude anyone from being the
murderer,

because

it

unidentified boyfriend.

came

consensually

from

Nishonda’s

Dowdy admitted on the stand before the

civil jury that he testified in the criminal trial that the semen
found in Nishonda was consensual based on his “thought . . . that
she was with her boyfriend” prior to the murders.
24.)

(Id. at 151:10-

At Howard’s criminal trial, Dowdy testified definitively

that he did not suspect Nishonda had been sexually assaulted,
because she was with “her boyfriend” for “almost a week” prior to
the murders, and only returned mere hours prior to her murder.
(Doc. 72-1 at 422:25-423:19.)
However, Howard produced evidence which called into question
the validity of Dowdy’s investigation.

For instance, Dowdy wrote

in his report that a witness, Ella Moore, informed him that
Nishonda had been away for four days and returned on Sunday –- two
days before the murders. (Doc. 87-8 at 9-10.)
consistently
homicide.”

noted

that

Nishonda

(Doc. 309 at 99:23-25.)

“returned

Despite this, Dowdy
the

day

of

the

In fact, none of the witnesses

Dowdy listed in his report corroborated his timeline.5 Dowdy later
For instance, another witness Dowdy interviewed was Alice Gordon, who
stated that she had not seen Doris or Nishonda for a week prior to the
murders. (Doc. 309 at 164:7-165:16.) Gordon provided no information
as to when Nishonda came home, and the only witness who does provide
that information is Moore. (Id. at 165:15-20.)
5

24

suggested that he may have prepared notes of conversations with
neighbors

following

Nifong’s

request

shortly

before

criminal trial; however, those notes are missing.
178:18-181:22.)

Howard’s

(Doc. 87-2 at

Furthermore, he explained to the civil jury that

handwritten notes are not given to the prosecutor, so anything
relevant from those interviews would have to be in Dowdy’s report,
otherwise the prosecutor would not know of the information obtained
in those interviews.

(Doc. 309 at 72:7-12.)

But Dowdy never

submitted any handwritten notes to the prosecutor or otherwise
included them in his report because, he maintained, they failed to
turn up any new evidence.

Therefore, the only evidence included

in Dowdy’s report indicated that Nishonda returned on Sunday, and
nowhere is there any evidence that she returned Tuesday evening.
Nevertheless, Dowdy told the prosecutor that Nishonda had returned
on Tuesday, and the prosecutor relied on that in his questioning
of Dowdy and his representations to the criminal jury at trial.
(Doc. 72-1 at 423:8-19; Doc. 309 at 106:5-20.)

In the present

case, Dowdy relied only on his own testimony to support his
representation of Nishonda’s whereabouts.
The timing of Nishonda’s return was critically important.

At

Howard’s criminal trial, 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.)
25

In the present case, the

jury heard testimony from two DNA experts, one from each side, who
both concluded that the sperm had most likely been deposited within
24 hours of the time the samples were taken at autopsy.
at 127:11-21; 187:6-22.)

(Doc. 306

If Nishonda had returned on Sunday, as

Dowdy’s report indicates, she would have returned two days prior
to the murders and, whether or not she was with a boyfriend, she
would have returned far outside the 24-hour window of likelihood
established by the sperm found at autopsy.

Yet, Dowdy told the

prosecutor that he had investigated Nishonda’s whereabouts and
concluded she was with her boyfriend, returning only on the evening
of the murders even though his report reflected contradictory
evidence that she returned on Sunday, outside the likely window
established by the analysis of sperm at her autopsy.
Dowdy conceded that any potentially relevant information had
to be included in a police report.

(Doc. 309 at 128:16 -22.)

He

acknowledged that evidence as to whether or not Nishonda had a
boyfriend would be relevant and would have been part of the police
file.

(Id. at 128:23-129:2.)

evidence

about

Nishonda’s

However, his file contains no

boyfriend

or

her

returning

to

the

Washington apartment within 24 hours of the autopsy as indicated
by the sperm.

(Id. at 129:3-6.)

When asked at trial why there

was no such evidence, Dowdy testified that “[t]here was a detective
who

was

actually

assigned

[Nishonda’s] boyfriend.

to

follow

up

on

the

aspect

of

Detective A.J. Carter, in particular, did
26

the follow-up in reference to the boyfriend and the whereabouts of
Nishonda Washington.”

(Id. at 129:8-16.)

This was the first time

in the 26-year history of this case that Dowdy disclosed the
identity of a Detective Carter or otherwise indicated that Carter
was the one who investigated Nishonda’s whereabouts.

In fact,

Howard presented to the jury Dowdy’s responses to interrogatories
seeking the names of all persons with knowledge of the case, and
of the 21 persons named, Carter is not one of them.

To complicate

matters, Dowdy indicated that Carter is deceased and his files are
likely missing due to the passage of time.

(Id. at 132:10-15.)

Dowdy’s representations led Nifong to elicit his testimony at
Howard’s

criminal

trial

that

he

had

determined

Nishonda’s

whereabouts for the time prior to her murder, that she was with
her boyfriend, and she returned the evening immediately prior to
her murder.6

(Id. at 96:2-20.)

This explained away the semen

found in her body and, more importantly, the fact that Howard’s
DNA did not match it.

In the present case, Dowdy conceded that,

based on the information he had, he “thought” Nishonda was with
her boyfriend prior to the murders.

(Id. at 151:10-15.)

Dowdy

also professed that he had no memory of talking to any other
witnesses in this case beyond those listed in his report.

(Id. at

It is not entirely clear how Nifong was permitted to elicit this hearsay
testimony from Dowdy in the state trial as to what neighbors told him
about when Nishonda returned home.
6

27

65:2-6.)

Given Dowdy’s inconsistent explanations as to Nishonda’s

whereabouts over the course of this case, the competing evidence
that discredits his conclusion that Nishonda returned hours before
she

was

murdered,

and

the

fact

that

Dowdy

understood

the

prosecutors were relying on his statements that Nishonda was with
her boyfriend prior to the murder, Howard presented sufficient
evidence from which the jury could conclude that Dowdy inadequately
investigated Nishonda’s boyfriend as the source of the semen found
in her anus at the time of her murder.
The jury also could have reasonably concluded that Dowdy
purposefully failed to adequately investigate this aspect of the
case to shield his fabrication of Oliver’s statement.

Had Dowdy

investigated Nishonda’s boyfriend and determined – as the only
evidence in his report supported -- that Nishonda had returned
days, rather than hours, before her murder, it would have seriously
undermined the state’s case by leaving unexplained the semen found
in Nishonda’s anus.

This would have called into question the

validity of Oliver’s testimony, because at no point did Oliver’s
original statement – or any other evidence – suggest that Howard
sexually assaulted Nishonda. Thus, because a reasonable jury could
conclude that failure to tie the semen to the alleged boyfriend
would seriously undermine Oliver’s original statement, it could
conclude

that

Dowdy

inadequately

investigated

Nishonda’s

whereabouts and her alleged boyfriend in an attempt to shield his
28

fabrication of Oliver’s statement from more intense scrutiny.

As

such, Dowdy’s renewed motion as a matter of law will be denied.
Dowdy next presents an ancillary argument that the format of
the jury instructions and the verdict sheet warrant a new trial,
because “the jury was not asked to separately answer a question as
to whether Oliver’s statement was fabricated.”

(Doc. 340 at 19.)

Dowdy

pursuant

frames

50(b)(2).

this

request

(Id. at 5.)

for

a

new trial

to Rule

However, as the court has already stated,

Dowdy’s Rule 50 motion is unpersuasive.

Pertaining to the jury

instructions, Dowdy states “if the Court does not grant judgment
as a matter of law for the defendant, it should order a new trial
as to this issue.”

(Id. at 20.)

Therefore, as Dowdy seems to

separate his request for a new trial from his renewed motion as a
matter of law, and because the court has denied his motion as a
matter of law, the court construes Dowdy’s argument as a request
pursuant to Federal Rule of Civil Procedure 59.

Pursuant to Rule

59, a district court may grant a new trial if “(1) the verdict is
against the clear weight of the evidence, or (2) is based upon
evidence which is false, or (3) will result in a miscarriage of
justice, even though there may be substantial evidence which would
prevent the direction of a verdict.”

Bilenky v. Ryobi Techs.,

Inc., 115 F. Supp. 3d 661, 668 (E.D. Va. 2015) (quoting Atlas Food
Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 594
(4th Cir. 1996)), aff'd, 666 F. App'x 271 (4th Cir. 2016).
29

“The

decision to grant or deny a motion for a new trial lies at the
heart of the district court's sound discretion and ‘will not be
disturbed absent a clear showing of abuse of discretion.’”

Gibson

v. Total Car Franchising Corp., 223 F.R.D. 265, 276 (M.D.N.C. 2004)
(quoting Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir.
1985) cert. denied, 475 U.S. 1016 (1986)).
As to Howard’s fabrication claim, the court instructed the
jury that Howard alleged that Dowdy fabricated two pieces of
evidence –- Oliver’s taped statement and Dowdy’s investigation
into whether Nishonda was sexually assaulted.

(Doc. 328 at 11.)

The

the

jury

“[a]lthough

instructions
Plaintiff

expressly
alleges

two

informed
separate

jurors

fabrications

that
of

evidence, you may find the Defendant liable based on either or
both pieces of evidence as long as you unanimously agree that the
Plaintiff has proven by a preponderance all the elements as to
that piece of evidence.”

(Id.)

For Howard’s bad faith failure to

investigate claim, however, the court instructed the jury, “[i]f
you do not find the Defendant liable for fabrication with respect
to Angela Oliver, as set out earlier in these instructions, then
you may not find the Defendant liable on this claim.”

( Id. at

15.)
The verdict form posed two questions.
1.

The first asked:

Has Plaintiff Darryl Howard proven by a
preponderance of the evidence that Defendant
Darrell Dowdy violated 42 U.S.C. § 1983 by
30

denying him his constitutional right to due
process by:
a. Fabrication of evidence:
___________
b. Suppression of evidence:
___________
c. Bad faith failure to investigate: _________
(Doc. 327.)

The second question asked, if the jury answered yes

to any part of the question above, what amount of compensatory
damages Howard should recover of Dowdy.

(Id.)

The jury answered “yes” to questions 1(a) and 1(c).

(Id.)

In finding that Howard had carried his burden and proven both his
fabrication
investigate

of

evidence

claim,

compensatory damages.

the

claim
jury

(Id.)

and

his

awarded

bad

faith

Howard

failure

to

$6,000,000

in

Because the jury was instructed

that the inadequate investigation claim required the jury to have
found that Oliver’s statement was fabricated and the jury’s verdict
form reflects a finding that Dowdy fabricated evidence but does
not enumerate which specific evidence the jury found he fabricated,
Dowdy argues the court should order a new trial as to the bad faith
failure to investigate claim.

(Doc. 340 at 20.)

“A jury is presumed to follow the instructions of the court.”
Stamathis v. Flying J, Inc., 389 F.3d 429, 442 (4th Cir. 2004).
“[A]bsent some specific ‘reason to doubt that the jury . . .
adhered to the district court’s directive,’” the court must assume
the jury followed the instructions.

United States v. Runyon, 707

F.3d 475, 497 (4th Cir. 2013) (quoting United States v. Castillo-

31

Pena, 674 F.3d 318, 322 (4th Cir. 2012)).
bad

faith

failure

to

investigate

With respect to Howard’s

claim,

the

court

expressly

instructed the jury that “[i]f you do not find the Defendant liable
for fabrication with respect to Angela Oliver, as set out earlier
in these instructions, then you may not find the Defendant liable
on this claim.”

(Doc. 328 at 15.)

Dowdy has provided no evidence

or explanation that calls into the doubt the presumption that the
jury understood and followed this instruction, and thus the court
will not disturb the jury’s verdict.
In his reply brief, Dowdy argues that the verdict form was
structured such that there was a “lack of a clear indication from
the jury that it decided in Plaintiff’s favor with respect to the
claim of fabrication of Oliver’s statement.”

(Doc. 349 at 8.)

To

the extent Dowdy now objects to the verdict form, he has waived
that complaint by having failed to raise that objection before the
jury retired to deliberate. See Fed. R. Civ. P. 49(a)(3); AG Sys.,
Inc. v. United Decorative Plastics Corp., 55 F.3d 970, 973-74 (4th
Cir. 1995) (noting that a party’s failure to object to the form of
special interrogatories waives that challenge on appeal).
Dowdy’s argument that the verdict sheet is insufficiently
detailed is also lacking in merit.
instructions,

Dowdy

made

no

In his own proposed jury

mention

of

Oliver’s

statement

regarding Howard’s bad faith failure to investigate claim.

Rather,

Dowdy proposed an instruction which read in part that Howard must
32

prove the following:
1. That Defendant Darrell Dowdy deliberately
suppressed material exculpatory evidence from
the prosecutor and/or deliberately fabricated
material evidence.
2.
That Defendant
Darrell
Dowdy
then
deliberately in bad faith failed to conduct an
adequate
investigation
to
shield
such
fabrication and/or suppression of evidence.
3. That such deliberate failure to investigate
resulted
in
Plaintiff
Darryl
Howard’s
conviction and imprisonment.
(Doc. 281 at 26.)

Unlike the court’s final jury instructions,

Dowdy’s proposed instructions did not advise the jury at all that
Howard’s bad faith failure to investigate claim required the jury
to have found that Dowdy fabricated Oliver’s statement.
In addition to the jury instructions, Dowdy also advocated
for the court to structure the verdict form in a way that is
similar to that to which he now objects.

Dowdy’s proposed verdict

form included three simple questions:
1. Did Plaintiff Darryl Howard prove by a preponderance of
the evidence that Defendant Darrell Dowdy deliberately caused
Plaintiff Darryl Howard to be deprived of his constitutional
right to a fair trial?
Yes _________

No _________

2. Did Plaintiff Darryl Howard prove by a preponderance of
the evidence that Defendant Milton Smith7 Deliberately caused
Plaintiff Darryl Howard to be deprived of his constitutional
right to a fair trial?
Milton Smith was dismissed as a Defendant by Howard just before trial.
(Doc. 305.)
7

33

Yes _________

No _________

If you answer Issue No. 1 or No. 2 in favor of Plaintiff
Darryl Howard, proceed to answer Issue No. 3. If you ans wer
Issue No. 1 and No. 2 “No” in favor of Defendants Darrell
Dowdy and Milton Smith, that is your verdict and you shall
not answer Issue No. 3.
3.
In accordance with the Court’s instructions regarding
compensatory damages, please state the amount, if any, of
damages Plaintiff Darryl Howard has proven by a preponderance
of the evidence.
$ _________
(Doc. 279 at 1-2.)

Dowdy’s proposed verdict form made no mention

of Oliver’s testimony and, in fact, did not separate out Howard’s
claims at all.

Rather, Dowdy requested that the court group all

of Howard’s claims together, which is exactly the basis for Dowdy’s
present criticisms of the finalized verdict form.

Not only did

Dowdy advocate for this in his pre-trial filings, but Dowdy’s
counsel also reiterated orally his desire that the verdict form
not separate the factual bases for Howard’s claims.

(See Doc. 335

12:17-13:4 (Dowdy’s counsel explaining, “On the verdict sheet,
Your Honor, as we have stated before, we do object to having the
various factual contentions of the constitutional right violation
being separated.”)) As such, because Dowdy not only never objected
to the exclusion of special interrogatories about the fabrication
of

Oliver’s

statement,

but

he

in

fact advocated

against

the

inclusion of the special interrogatory for which he now advocates,
his motion to set aside the verdict and alternatively for a new
34

trial on Howard’s bad faith failure to investigate claim will be
denied.

See Legacy Data Access, Inc. v. Cadrillion, LLC, 889 F.3d

158, 170-71 (4th Cir. 2018) (holding a party is foreclosed from
objecting to a jury instruction it proposed and the court adopted).
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that

Dowdy’s renewed motion for

judgment as a matter of law (Doc. 339) is DENIED.

/s/
Thomas D. Schroeder
United States District Judge
May 26, 2022

35