in the Court of Appeals 5 June 2019.
by State from Order entered 12 June 2018 by Judge Phyllis M.
Gorham in Wayne County Superior Court No. 16 CRS 55186.
Attorney General Joshua H. Stein, by Assistant Attorney
General Joseph L. Hyde, for the State.
Strickland Agner Pittman, by Dustin B. Pittman, for
and Procedural Background
State appeals from the trial court's Order granting
Defendant's Motion to Dismiss Based on Loss and
Destruction of Exculpatory Evidence (Motion to Dismiss). The
Record tends to show the following:
November 2016, Brandiss Taylor (Defendant) was arrested and
given a citation for Impaired Driving and Failure to Maintain
Lane Control. On 4 December 2017, a Wayne County Grand Jury
returned an Indictment charging Defendant with Habitual
Impaired Driving, Driving While License Revoked, and Driving
Left of Center. On 25 April 2018, Defendant filed her Motion
to Dismiss, which came on for a hearing in Wayne County
Superior Court on 11 June 2018. At the beginning of this
hearing, both the State and Defendant stipulated to the
following Factual Allegations from Defendant's Motion to
1. On 27 November 2016 at approximately 1:20 A.M., Trooper
Adam J. Hostinsky of the North Carolina Highway Patrol
[(Trooper Hostinsky)] observed a truck merge onto U.S. 117
South from a parking area;
2. The truck made a number of maneuvers that alerted [Trooper
Hostinsky] to its presence and he began to follow. [Trooper
Hostinsky] noted varying speeds, failure to maintain lane and
the truck drive left of the center line twice with sharp
corrections back. In [Trooper Hostinsky's] words "it
appeared the driver may be lost or unsure of where they are
3. Based on those observed traffic violations, [Trooper
Hostinsky] conducted a traffic stop on the truck and it
pulled to the side of the road and the "truck was put
into park while still travelling about 15 MPH;"
4. When [Trooper Hostinsky] approached the truck, he found
two people sitting on the passenger side of the truck,
[Defendant] and another individual named Roy Lee;
5. [Trooper Hostinsky] indicates in his written notes that he
identified [Defendant] as the driver and that he "saw
the driver make their way to the passenger side of the
vehicle" after the traffic stop was conducted;
6. [Defendant] has from the very beginning denied driving the
truck that night and has maintained that throughout the life
of this case;
7. As early as 28 November 2016, Trooper Hostinsky notes that
[Defendant] was being considered for the felony charge of
Habitual Impaired Driving;
8. On 16 December 2016, less than 30 days after the initial
DWI charge was filed, agents of the Office of the District
Attorney began requesting certified copies of records of
prior convictions of [Defendant], presumably to prepare an
indictment for Felony Habitual Impaired Driving; . . . .
9. On 29 December 2016, thirty-two (32) days after the
traffic stop was conducted, Trooper Hostinsky submitted his
investigative file to the Office of the District Attorney and
certified his compliance with N.C. Gen. Stat. §
15A-501(6) in gathering "all materials and information
acquired in the course of all felony investigations;" .
. . .
10. On 28 July 2017, [defense counsel] filed a "Request
for Voluntary Discovery (Alternative Motion to Compel
Discovery) in a Driving While Impaired Case; . . . .
11. Even though the investigative file was submitted some
seven months before the request, discovery was not released
to [defense counsel] until 6 December 2017 as [defense
counsel] has been informed multiple times by Assistant
District Attorneys and their staff that "discovery does
not exist in district court" especially as it relates to
Driving While Impaired offenses;
12. In the request for discovery, Defendant makes specific
request for any and all video including Dash Camera and Body
13. The case was submitted to the Grand Jury in December 2017
and a true bill of indictment was returned for Felony
Habitual Impaired Driving;
14. [Defense counsel] made additional request of the State
for the Dash Camera footage ...