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JiW. THE GENERAL COURT OF JUSTICE

NORTH CAROLINA

F ILEu

SUPERIOR COURT DIVISION

10 CRS 70457-9

GUILFORD COUNTY

ZUlb Al1G 25
STATEOFNORTHCAROW~fORD

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CO\C,S,C,

ill'ltintiff;-~".,"~
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vs.

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AMANDA CHRISTINE SPERDUTI,

Defendant.

ORDER

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This matter is before the court on the defendant's motion to test DNA evidence filed 31
March 2016. The District Attorney has answered the motion and opposes any relief. The
defendant has replied to the answer. A heanng was conducted before the undersigned on 21 July
2016. J. Darren Byers, attorney at law, appeared for the defendant. Assistant District Attorney
Veronica Edmisten appeared for the State. Evidence was presented.
A.

The motion.

This matter arises out of a one-car collision that occurred on 13 February 2010. Three
individuals were killed and the defendant suffered significant personal injuries. The defendant
was indicted for several charges arising out of the collision, including three counts of felony
death by motor vehicle and three counts of second degree murder. On 14 February 2011, the
defendant entered an Alford plea of guilty to three counts of felony death by motor vehicle, and
admitted to the existence of aggravating factors, that at the time of the coliision her faculties
were grossly impaired and that her driving was especially dangerous and reckless. The plea was
entered pursuant to a plea arrangement the terms of which included an agreement that the
defendant would plead guilty to the felony death by motor vehicle charges, and admit the

.,

existence of the aggravating factors; that nine other charges against her would be dismissed; and
that sentencing would be in the discretion of the court. On 14 March 20 II, the defendant was
sentenced to three consecutive active terms of 31 to 47 months, judgments were entered
accordingly, and she is currently serving such sentences in the custody of the Division of Adult
Correction.
The present motion originally sought an order pursuant to N.C. Gen. Stat. ~ 15A-269(a),
directing the testing of "DNA evidence and blood evidence found at the scene" of the collision.
Items specified include "two cell phones, a pipe, the speedometer cluster, the accident vehicle's
keys, sections of the driver's seat removed by the State, the wiring harness removed from the
passenger's side area with flesh attached, and the rear view mirror that have been previously
tested or that were not tested" prior to the plea; and "all items in the State's possession." Motion,
p.3)
In response to the motion, the District Attorney identified items that were seized by the
North Carolina State Highway Patrol (SHP) during the investigation of the collision, including a
bottle of whiskey, the vehicle, two cell phones, a glass pipe, an SRS airbag control module and a
speedometer cluster, none of which is currently in the possession of the SHP. I The defendant
filed a reply that asserts, inter alia, that the failure to maintain custody and control of items
seized and placed in evidence violated the DNA Database and Databank Act of 1993 (the Act),
N.C. Gen. Stat. ~ 15A-266 et seq. The defendant requests that the court determine "the
appropriate reriledy"forsuch

violation. (Reply, p. J)

The Act requires the preservation of "physical evidence ... that is reasonably likely to
contain any biological evidence collected in the course of a criminal investigation or

The record also reflects thaI ilems described as "paraphernalia and liquor bottle" were seized as evidence. (Order
10 Dispose of Property" filed 14 June 2013).
I

prosecution." N.C. Gen. Stat. ~ 15A-268(al).

"Biological evidence" is defined as "the contents

of a sexual assault examination kit or any item that contains blood, semen, hair, saliva, skin
tissue, fingerprints, or other identifiable human biological material that may reasonably be used
to incriminate or exculpate any person in the criminal investigation, whether that material is
catalogued separately on a slide or swab, in a test tube, or some other similar method, or is
present on clothing, ligatures, bedding, other household materials, drinking cups, cigarettes, or
any other item of evidence." N.C. Gen. Stat. ~ 15A-268(a).
The Act further provides that if evidence required to be preserved has been destroyed,
and after a hearing to determine if obstruction of justice or contempt proceedings are justified, if
the court fmds that the destruction has violated a defendant's due process rights, then the court
"shall order an appropriate remedy, which may include dismissal of charges." N.C. Gen. Stat. ~
15A-268(g). This provision dovetails with N.C. Gen. Stat. ~~ 15A-1415(b) and -1417(a). The
former lists among the grounds for granting "appropriate relief' from a judgment of conviction
that such conviction "was obtained in violation of the Constitution of the United States or the
Constitution of North Carolina;" and the latter provides that among the forms of relief available
if a motion for appropriate relief is granted is dismissal of charges.
th

. The defendant has asserted that her motion is brought "pursuant to" the 5th, 6th, 8 and
14th A!JIendments to the United States Constitution, and Article I, ~~ 19,23,24
North Carolina Constitution.
except

and 27 of the

She does not explain how those constitutional provisions apply,

to invoke her rights to due process.

The United States Supreme Court has rejected the proposition that a person convicted of

a crime has a substantive post-conviction due process right of access to DNA-type evidence. See
District Attorney's Office/or the Third Judicial District v. Osborne, 557 U.S. 52, 72,129 S. Ct.

2308,2322, 174 1. Ed. 2d 38, 54 (2009). It does not appear that the North Carolina Supreme
Court or Court of Appeals has considered whether such right exists under this state's
constitution.
The General Assembly has, by enactment of the Act, provided for the preservation of
biological evidence after conviction. Nothing else appearing, when the conviction results from a
guilty plea, the agency having custody of biological evidence must preserve it for the earlier of
three years from the date of conviction or until the convicted person is released from prison.
N.C. Gen. Stat. ~ 15A-268(a6)(3).

However, the agency may dispose of such evidence sooner if

it has given notice of intent to do so to the district attorney, and the district attorney has then
given written notice thereof to the defendant, her counsel of record and the Office ofIndigent
Defense Services. N.C. Gen. Stat. ~ 15A-268(b). The district attorney's notice must inform that
the evidence will be destroyed unless the custodial agency receives written request to preserve it,
and an address to which the request is to be sent; that the request must be received by the agency
within 90 days after receipt of the district attorney's notice; and that the reason why the
preservation is requested is that the conviction is currently on appeal or in post-conviction
proceedings, or that a motion for DNA testing will be filed within 180 days, or that the case has
been referred to the N.C. Innocence Inquiry Commission. [d.
The defendant's invocation of due process appears to include an argument that a failure
to comply with these procedures amounts to denial of procedural due process. The United States
Supreme Court has held that error in the application of state law does not violate procedural due
process. See Gryger v. Burke, 334 U.S. 728,731,68

S. Ct. 1256, 1258,92 1. Ed. 1683, 1687

/I

(1948). If the Act creates a "liberty interest" for one in the defendant's position, the North

Carolina Constitution's prohibition in Article I, ~ 19, against the taking of one's liberty interest
except by the law of the land would appear to apply.
Against this backdrop, the court has considered the evidence and enters the following
fmdings of fact and conclusions of law. The findings are by a preponderance of the evidence
except as otherwise indicated.
B.

Findings of fact.

I.

The motor vehicle collision out of which the prosecution of the defendant in these

cases arose occurred on or about 13 February 2010.

2.

The SHP seized and took custody2 the following items of evidence at the crime

scene:
a.

SRS MControl Module.

b.

Cell phone (iPhone).

c.

Cell phone (Alltel).

d.

Small blue and white pipe.

e.

Speedometer cluster.3

(Defendant's Exhibit 2).

3.

Through her counsel, the defendant obtained and submitted for forensic analysis'

items taken from the interior of the vehicle involved in the collision. (Defendant's Submission,
Tab 18).
4.

Analyses of DNA-containing material obtained for the defen:darit on orbefore 17

February 2011 included results tending to exclude the defendant from the DNA profiles obtained
from materials located in or near the driver's seat of the vehicle. (Id.).

Assigned Evidence Tracking Log NO.1 0-06.

See en. 1 for additional items.

5.

The defendant entered counseled Alford pleas of guilty to three counts of felony

death by motor vehicle on 17 February 2011.

6.

On 17 February 2011, judgments were entered convicting the defendant of three

counts of felony death by motor vehicle, sentencing the defendant to three consecutive active
terms of 31 to 47 months.
7.

On or about 6 April 2011, an order was entered permitting destruction of the

items listed in Finding 2 (Defendant's Exhibit 4), and on or about 14 June 2013, an order was
entered permitting destruction of the "paraphernalia and liquor bottle."
8.

It is likely that some of such items contained biological evidence.

9.

The items listed in Finding 2 were destroyed by the SHP on or about 3 May 2011.

10.

Whether and the date on which the "paraphernalia and liquor bottle" were

destroyed is undetermined, but in any event the State does not currently possess them.
11.

Neither the defendant nor her counsel at the time were provided notice of intent to

destroy that evidence prior to its destruction.

12.

The defendant's counsel were aware of the evidence prior to its destruction, but

did not request that any of it be tested for the presence of DNA prior to the defendant's entry of
the
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gIliity
or the destruction of those items.._--_.~--------------------~------ ~pleas
------

13.

One additional item, keys, was listed as having been collected but not in a listing

of items intended to be destroyed.

14.

the evidence is conflicting whether the keys were destroyed 'or returned to the

defendant's mother, but it is not material to this matter.

C.

Conclusions oflaw.

From the findings set out above, and such additional findings

as are set out in this section, the court concludes as a matter oflaw:

,
1.

The evidence sought to be subjected to post-conviction DNA testing was

destroyed by the SHP without compliance with N.C. Gen. Stat. ~ 15A-268(a6)(3) and (b).
2.

Beyond a reasonable doubt, such noncompliance did not violate due process

under the U.S. or N.C. Constitutions.

3.

Beyond a reasonable doubt, even if violation of the statute as set forth violated

due process, prior to her entry of pleas of guilty the defendant had available to her evidence of
DNA profiles in biological evidence taken from the vehicle involved in the collision that raised
an issue whether she was the driver; and testing of biological evidence as requested in this
motion could reasonably have been expected only, at best, to corroborate or add to that preexisting evidence.
4.

Beyond a reasonable doubt, the defendant has not been prejudiced by the

destruction of biological evidence without compliance with the Act in a manner that requires
affmnative relief.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED and DECREED, in the court's
discretion, that the motion for DNA testing, and for relief for noncompliance with the Act, is
denied. The Clerk is to provide copies of this order to the defendant, through her post-conviction
counsel, the District Attorney and the Division of Adult Correction.
This ~ay

of August, 2016.

Lin ay R.Davis, Jr.

Superior Court Judge