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Motion filed by Rae Carruth's defense
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STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION
CASE NOS. 99-CRS-46567-69; 50145; 151978; 2000-CRS-10006
STATE OF NORTH CAROLINA
Plaintiff
vs.
RAE LAMAR WIGGINS, a/k/a RAE CARRUTH
Defendant
FILED #60
OCT 18 2000
MOTION FOR SPECIFIC INFORMATION RELATING TO DRUG DEALING BY WATKINS AND KENNEDY THAT IS RELEVANT TO THE DEFENSE IN THIS CASE
NOW COMES the Defendant, Rae Carruth, by and through his undersigned counsel, and respectfully moves the Court, pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Article I, SS 19 and 23 of the Constitution of the State of North Carolina, Napue v. Illinois 360 U.S. 264 (1959), Brady v. Maryland 373 U.S. 83 (1963), Giles v. Maryland 386 U.S. 66 (1967), United States v. Agurs 427 U.S. 97 (1976), United States v. Bagley 473 U.S. 667 (1986), and Kyles v. Whitley 514 U.S. 419 (1995), for an order requiring the State to provide to Defendant specific information relating to drug dealing by co-defendants Van Brett Watkins, Sr. (a/k/a William Watkins) and Michael Kennedy that is relevant to the defense in this case.
Defendant further moves this Court to hold a voir dire hearing on Watkins' drug dealing as soon as possible and to permit Defendant to question Watkins at the voir dire hearing, under oath, regarding his drug dealing so that Defendant will have this information before the trial begins.
In support of this motion, Defendant shows the Court as follows:
I. Factual Background
1. From the start of this case, the State has maintained that Rae Carruth hired Watkins, Kennedy and Abraham to kill Cherica Adams because he did not want to pay child support for his child, despite the fact that he had several hundred thousand dollars in the bank at the time of the shooting, was debt free except for a $200,000.00 mortgage on his house, which was worth about $240,000,00, had a net worth in excess of $500,000.00, and was earning $38,000.00 per game with the Carolina Panthers.
2. From the start of this case, Mr. Carruth has maintained that he was looking forward to the birth of his child, that he attended Ob-Gyn visits with Cherica Adams (which has been confirmed by her Doctor), and that he was more than willing and able to support the baby. In fact, in October 1999, he gave Cherica Adams over a thousand dollars for baby expenses.
3. Within the past week, the State has turned over to Defendant as exculpatory evidence a statement made by William Watkins to a Mecklenburg County Sheriff's Deputy confessing that he shot Cherica Adams as a result of his own rage and violent character, and not as a result of any plan or request by Rae Carruth.
4. Specifically, the handwritten notes given to the Defendant by the State, which by their content reveal that the writer is a Sergeant with the Mecklenburg County Sheriff's Department who works at the jail, read in pertinent part as follows:
[Watkins] stated, "I need to talk to you..." I said "Watkins, I can't talk with you about your case." Inmate Watkins continued like I hadn't said anything. Watkins stated "I had Kennedy pull alongside Cherica's car so we could see which way Rae was headed. I started waving my arms to get her attention. She slowed down. I think she may have thought we wanted to pass her. I was motioning for her to roll her window down, I just wanted to ask her if she knew where Rae was going. She slowed down some more. She looked over at the car and seen us, she flipped me off. Sgt...I lost it. I just started shooting." Inmate Watkins was hysterical. He said "Sgt..., it was Rae's fault. If he had Just given us the money none of this would have happened." About this time, someone called me on the radio. I said, "Watkins, I will come back and talk with you later."
[See handwritten notes, attached as Exhibit A (emphasis added).]
On another occasion, Watkins told this same Sergeant, "you are the only one who will know the whole truth."
[See Exhibit A (emphasis added).]
Fortunately, this Sergeant made sure others knew the whole truth too.
5. These notes, and the confession made by Watkins to the Sheriff's Deputy, are consistent with the statement given by Rae Carruth to the FBI in Tennessee when he was arrested on December 15, 1999. In that statement, Mr. Carruth explained that on the way to Ms. Adams' house, she changed her mind and told him that she did not want him to come over to her house that night after all. Mr. Carruth further indicated that at the time Ms. Adams was shot by Watkins, Mr. Carruth had already driven away from Ms. Adams' car on Rea Road to go to Hannibal Navies' house, which is what would have led Watkins to try to find out from Ms. Adams "where Rae was going," as the statement to the Sheriffs Deputy says.
6. The Defendant intends to show during the trial that in the fall of 1999, William Watkins approached Mr. Carruth and Michael Kennedy and offered to sell them marijuana. On one occasion in October 1999, while working at Mr. Carruth's house, Watkins called Mr. Carruth and Kennedy over to Watkins' U-Haul truck, took out a duffle bag containing marijuana, and showed it to them. He told Mr. Carruth and Kennedy that if they were interested he could bring more marijuana up to Charlotte from a source in Atlanta.
7. Thereafter Kennedy stopped by Mr. Carruth's house and asked him to contact Watkins about Kennedy's purchasing marijuana from Watkins. Mr. Carruth subsequently contacted Watkins for Kennedy.
8. In the days leading up to Watkins' shooting of Cherica Adams on November 15-16, 1999, Kennedy had asked Mr. Carruth if he could borrow the money he needed to pay Watkins for marijuana. Although Mr. Carruth considered loaning Kennedy the money for several days, and finally told him on November 15 that he would loan him the money, he changed his mind on the
evening of November 15, 1999, when Watkins showed up at Mr. Carruth's house with the marijuana in the back of his U-Haul, ready to distribute it to Kennedy. Mr. Carruth told Watkins to move his U-Haul truck with the
marijuana away from Mr. Carruth's house and told Kennedy he would not loan him the money. Watkins became enraged, threatening Mr. Carruth and saying he was "gonna fuck [Carruth] up" if Mr. Carruth did not loan Kennedy the money. Watkins and Mr. Carruth exchanged words, and Kennedy asked Mr. Carruth to calm down and at least think about it. Mr. Carruth agreed to do so, and to call Kennedy after the movie he was going to see with Cherica Adams was over.
9. Documents provided by the State show that while Mr. Carruth and Ms. Adams were at the movie theater, Watkins and Kennedy drove approximately 30 minutes each way to buy a gun. When they returned, they drove into Mr. Carruth's neighborhood and past his house. The discovery indicates they then drove back to the movie theater parking lot to make sure Mr. Carruth was inside the movies, and that they found Mr. Carruth's Expedition in the lot. Apparently, they then stayed in the area to "stake out" his car.
10. Mr. Carruth further intends to show that the telephone calls made on November 15-16, 1999 between him and Kennedy were related to Kennedy's desire to borrow the money from him, and were in no way related to Cherica Adams, her pregnancy, or any plan to shoot anyone. This is supported by the fact that the telephone records and the discovery provided by the State show that Kennedy made no telephone calls to anyone about getting a gun until after Mr. Carruth had turned down his request to borrow money and had left for the movies. During his conversation with Kennedy at 11:51 p.m., after the movie was over, Mr. Carruth told Kennedy he would not change his mind about lending Kennedy the money. The phone records show that Kennedy tried unsuccessfully to call Carruth back several times thereafter. This is hardly consistent with a planned "hit."
11. The actions of Kennedy and Watkins on November 15-16, 1999, and the pattern of short, last minute telephone calls, are far more consistent with an attempt by them to engage in a drug transaction, and to borrow the
money from Mr. Carruth, than with a "murder for hire," Indeed, in order to believe the State's theory, one has to believe that a murder allegedly contemplated by Mr. Carruth for months was then completely arranged, according to Watkins, at the very last second, between the hours of 7:30 p.m. and 9:00 p.m. on November 15, 1999. Nor does the "plan" claimed by Watkins make even common sense; that he came to the "hit" that night without the gun he had at his motel, that Kennedy would then try to get a gun for the "hit" by paging a friend of his who might or might not have one, that Kennedy and Watkins would then have to drive an hour to find a gun while Mr. Carruth and Ms. Adams were at the movie theater, that Mr. Carruth would want the shooting to occur near his house, with him physically present, on a night he was seen out with Cherica Adams in public, or that Mr. Carruth would engage in multiple cellular telephone calls with Kennedy right before the shooting to set up the "hit."
12. Now, on the eve of trial, discovery just released by the State confirms four powerful exculpatory facts:
(a) Watkins' statement that "None of this would have happened if Rae had just given us the money" (See Exhibit A), confirms that it was Mr. Carruth's refusal to lend Kennedy the money to buy marijuana from Watkins that led to the shooting, and that Kennedy and Watkins were following Mr. Carruth in an attempt to get the money from him. This is also consistent with what Mr. Carruth told the FBI on December 15, 1999: "Wiggins advised that he felt that they [Watkins and Kennedy] were trying to get money from him" when they "came over to his house" at about 8:00 p.m., and is also consistent with other statements made by Watkins to the Sheriff's Deputy, such as "Nobody double crosses me and gets by. What good is all that money doing the little nigger now." (See Exhibit A)
(b) Watkins' admission to a Deputy Sheriff that he shot Ms. Adams in a rage after he "lost it" when she made an obscene gesture to him (see Exhibit A), confirms that Ms. Adams was not killed because Rae Carruth paid Watkins to shoot her;
(c) Watkins' rage and anger at Ms. Adams, as expressed in the admission he made to the Sheriff's Deputy, is confirmed by Watkins' statement on December 1, 1999, while Ms. Adams was still fighting for her life, that "I hope the bitch dies." See Mecklenburg County Sheriff's Department Incident Report, attached as Exhibit B; and
(d) Watkins' involvement in transporting drugs from Atlanta to North Carolina on a number of occasions, which explains what he was doing with Kennedy on November 15, 1999, was finally confirmed by the State in
open court on Thursday, October 12, almost a year after the shooting and only eleven days before trial is to begin.
13. Watkins' statement is also consistent with what Mr. Carruth told the FBI about the timing of key events. More specifically. Carruth told the FBI that ha called a friend in Atlanta as he drove off from Cherica's car on Rea Road. The telephone records show that Mr. Carruth called Atlanta at 12:27 a.m. and spoke for sixteen minutes. (See Exhibit C.) They also show that Cherica Adams called 911 at 12:31 a.m. (See Exhibit D.) Thus, some time elapsed between the time Mr. Carruth drove off and the time Watkins shot Cherica Adams. This explains why Watkins "just wanted to ask her if she knew where Rae was going," as he told the Sergeant at the jail.
II. Legal Basis for Motion
14. Defendant has previously moved this Court for an order requiring the State to provide any and all information in its possession regarding drug trafficking by Watkins or Kennedy. The sole basis of that motion was the fact that such information constituted impeachment material under Giglio v. United States, 405 U.S. 160, 164 (1972), in the event Watkins or Kennedy testified at Mr. Carruth's trial.
15. In response, the State revealed in open court on October 12, 2000 that it had information that Watkins was involved in illegal drug trafficking, and that he had in fact been running drugs from Atlanta to North Carolina. The State further represented to the Court that it did not intend to call Michael Kennedy as a witness. Based on these representations, the Court denied Defendant any further discovery regarding drug trafficking by Watkins or Kennedy.
16. Undersigned counsel immediately informed the Court that they intended to file a further motion seeking the details of Watkins' drug trafficking. Defendant now seeks this additional information, not only on the grounds that this information is relevant to impeach Watkins and Kennedy, but also on the grounds that the information is material to Mr. Carruth's defense that Watkins shot Ms. Adams on his own. Mr. Carruth is entitled to this information regardless of whom the State intends to call as a witness at trial.
17. Brady and its progeny hold that the Due Process Clause requires the state to disclose information that is within its possession or control that is material to the defendant's guilt or innocence. This includes evidence to which the prosecution has superior access over that of the defense, East v. Scott, 55 F.3d 996 (5th Cir. 1995), as well as evidence in the possession of a state agent, Love v. Johnson, 57 F.3d 1305, 1314 (4th Cir. 1995).
18. The State admits that it possesses information showing that Watkins transported illegal drugs from Georgia to North Carolina on a number of occasions. The details of this information are clearly material to the defense in this case, as described in paragraphs 1-13, above. Likewise, any information in the possession of the State indicating that Kennedy had ever been involved in purchasing, possessing or distributing illegal drugs is material to the defense in this case: that Watkins and Kennedy were involved in a drug deal on the night of November 15-16, not a plot organized by Mr. Carruth to murder Cherica Adams, and that the shooting occurred because of Watkins' rage, as admitted by Watkins to the Sergeant from the Mecklenburg County Sheriff's Department, and as described in Exhibit A, not as a result of any request by Rae Carruth.
19. The State made its deal with Watkins. It has allowed the person who admittedly pulled the trigger five times, and who then told a Sheriff's Deputy that he "hope[s] the bitch dies," to plead guilty to a second
degree murder and avoid the death penalty. By virtue of his plea bargain agreement Watkins has become an agent of the State, contractually obligated to answer their questions. There can be no doubt that Watkins' history of drug dealing has "some tendency in logic" to make the fact that he was selling drugs to Kennedy on November 15, 1999 more likely, and that information concerning Watkins' drug dealing is therefore relevant to the defense under Rules 401 and 402 of the North Carolina Rules of Evidence.
20. The State may not deliberately avoid its Brady obligations by not asking Watkins the questions any prosecutor concerned with seeking the truth would ask in these circumstances: when did you purchase, sell or deliver drugs; what kinds of drugs did you purchase, sell or deliver and in what quantities; from or to whom did you purchase, sell or deliver drugs, etc. Surely if Watkins was about to go on trial the State would seek all this information, and more, about his prior drug dealing. Due process requires that it do no less where Defendant's innocence, and his life, are at stake. Willful blindness to Brady information is not permissible.
21. A number of courts have addressed the responsibility of prosecutors under the Due Process Clause to seek out readily available Brady information for purposes of providing such information to the defendant. For example, in rejecting what it called the government's "ostrich defense," that it did not know the favorable evidence withheld from defendant because it had not conducted any inquiry into the potentially favorable facts, the District Court in United States v. Burnside, 824 F. Supp. 1216, 1254-1258 (N.D. III. 1 993), noted that:
Allowing the government to absolve itself on the basis of Its counsel's asserted ignorance of the facts — ignorance prompted by the government lawyers closing their eyes to facts which should have prompted them to investigate — would be akin to allowing criminal defendants to avoid guilty knowledge by means of the "ostrich defense."
Id. at 1256. The court concluded that: the government's position that government personnel have no duty to inquire, no matter how much the known facts compel inquiry, is inconsistent with the Brady doctrine which requires the government to provide due process.
Id. at 1267 (citation omitted).
22. Similar language can be found in a number of United States Court of Appeals decisions.
See, e.g.:
- United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992)("an inaccurate conviction based on government failure to turn over an easily turned rock is essentially as offensive as one based on government non-disclosure")
- United States v. Perdomo, 929 F.2d 967, 970-971 (3rd Cir. 1991)("non-disclosure is inexcusable where the prosecution has not sought out information readily available to it")
- United States v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984)("a prosecutor's office cannot get around Brady by keeping itself in ignorance")
- United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980)("lf disclosure were excused in instances where the prosecution has not sought out information readily available to it, we would be inviting and placing a premium on conduct unworthy of representatives of the United States Government. This we decline to do")
23. Likewise, any information in the possession of the State that indicates that Kennedy had been involved with purchasing, possessing or selling illegal drugs would have "some tendency in logic" to make it more likely that he was involved in a drug deal with Watkins on November 15, 1999 and is therefore relevant to the defense under Rules 401 and 402 of the North Carolina Rules of Evidence. Such information therefore must be disclosed pursuant to Brady and its progeny. This specifically includes any file in the possession of the multi-jurisdictional local Drug Task Force, of which the 13 Charlotte-Mecklenburg Police and the State Bureau of Investigation are members.
24. Defendant further seeks a pre-trial voir dire hearing at which he can question Watkins directly, and under oath, limited solely to the issue of his prior drug dealings. Only in this way can Defendant and the Court be sure that the jury determining Mr. Carruth's guilt or innocence will have all of the relevant information, including testimony by other witnesses with knowledge of Watkins' prior drug dealings, when evaluating the defense.
25. Courts have ruled that the State's constitutional obligation to produce exculpatory information encompasses a right to have that material produced in sufficient time to allow the defense to fully utilize it. This subject was discussed thoroughly in United States v. Snell, 899 F.Supp. 17 (D, Mass. 1996):
[T]he earlier the disclosure the more effective the defense use of it will be. Clearly, information obtained on the eve of trial, or worse yet, mid trial, is less effective to an advocate than information obtained earlier.
See e.g., United States v. Deutsch. 373 F.Supp. 289, 290 (S.D.N.Y.1974)("It should be obvious to anyone involved with criminal trials that exculpatory information may come too fate if it is only given at trial, and that the effective implementation of Brady v. Maryland must therefore require earlier production in at least some situations."). Exculpatory information affects the defense investigation, how it will allocate Its resources, the voir dire questions the defense will seek, the framing of opening statements, the nature of the pre-trial research on evidentiary issues and jury instructions, in short, all of the strategic decisions which must be made long in advance of trial. If this society wants effective defense advocacy, which is, after all, the premise of the Fifth and Sixth Amendments and of the Due Process clause, then, within the limits of the adversary system, information which is exculpatory must be made available to counsel before the trial begins.
Id. at 20.
WHEREFORE the Defendant respectfully requests that this Court issue an order requiring the State to provide the following information to the Defendant forthwith:
1. The time period during which William Watkins (a/k/a Van Brett Watkins, Felix Valet, and "New York" or "New") was involved in drug trafficking prior to November 15, 1999;
2. The names of all persons who were involved with William Watkins (a/k/a Van Brett Watkins, Felix Valet, and "New York" or 'New") in drug trafficking prior to November 15, 1999, including but not limited to the names of all persons who supplied illegal drugs to Watkins, the names of all persons to whom Watkins sold, distributed or delivered illegal drugs, and the names of all persons who assisted Watkins in his drug activity in any way, including the providing of vehicles, firearms, money or other assistance;
3. The types of illegal drugs Watkins was involved with, and the total quantity of each he possessed, sold, distributed or assisted others in possessing, selling or delivering;
4. The dates of all sales or deliveries of illegal drugs by Watkins;
5. The dates of all trips by Watkins from or to anywhere in North Carolina (including Charlotte) for the purpose of transporting illegal drugs or the proceeds from the sale of illegal drugs, or assisting others in transporting illegal drugs or the proceeds of drug sales, and the names of all persons in North Carolina who saw Watkins in possession of illegal drugs or were told by Watkins that he had or could obtain illegal drugs; and
6. All information in the possession or control of the Charlotte-Mecklenburg police relating to the purchase, possession or distribution of illegal drugs by Michael Kennedy (a/k/a "Little Man"), as well as any information furnished to the Charlotte Police by Michael Kennedy regarding the sale, delivery, purchase or possession of illegal drugs by anyone else, including but not limited too all information in the possession of the local joint Drug Task Force, of which the Charlotte-Mecklenburg Police and the State Bureau of Investigation are members.
RESPECTFULLY submitted this 18th day of October, 2000.
RUDOLF MAHER WIDENHOUSE & FIALKO
David S. Rudolf; NCSB #8587
312 West Franklin Street
Chapel Hill, NC 27516
Telephone: 919-967-4900
Christopher C. Fialko; NCSB #19010
1800 Camden Road
Suite 105
Charlotte, NC 28302
Telephone: 704-333-9945
Attorneys for Rae Carruth
CERTIFICATE OF SERVICE
THIS IS TO CERTIFY that a copy of the foregoing MOTION FOR SPECIFIC INFORMATION RELATING TO DRUG DEALING BY WATKINS AND KENNEDY THAT IS RELEVANT TO THE DEFENSE IN THIS CASE was duly served upon the following by depositing same enclosed in a post paid, properly addressed envelope in a Post Office or official depository under the exclusive care and custody of the United States Postal Service.
This the 18th day of October, 2000.
RUDOLF MAHER WIDENHOUSE & FIALKO
David S. Rudolf
Attorney for Defendant
312 West Franklin Street
Chapel Hill, NC 27516
Telephone: 919-967-4900
Served on:
J. Gentry Caudill
Assistant District Attorney
700 East Trade Street
2nd Floor - Courthouse Annex
Charlotte, NC 28202
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