A hearing was held in the Sgt. Gregory Keith Martin murder case on Oct. 30.
Scott Vincent Sica was present in the court room as his attorney, Daniel Dolan, Assistant Capital Defender for Forsyth County, filed motions for the court to order the preservation of evidence, notes and state files. Dolan also filed a motion requesting that the court order state attorneys to provide notice and receive consent from the court prior to completing any further forensic testing.
Sica was indicted on Oct. 29 for first degree murder regarding the shooting death of Jonesville Police officer Sgt. Martin.
Dolan said that the defendant has yet to be presented with the discovery in the case, but has been verbally informed that there is DNA, hair samples and fingerprint evidence collected. Dolan said that he has seen no evidence of these items so he is unsure whether the evidence exists or not.
Dolan filed a motion to request that all evidence, notes and state files immediately be preserved due to the large number of agencies involved with the case and the 16 years that have passed since the crime took place.
Dolan also said that prior to Oct. 19 the state had performed forensic testing. Dolan said that he wants to ensure that the defendant’s legal team can have its own forensic specialist review any testing. Dolan said that he would also like to request that any evidence be made available to the defendant’s forensic specialist for testing and not consumed entirely during the state’s testing.
Tom Horner, District Attorney for Prosecutorial District 23, said that the state took issue with the requests regarding forensic evidence. Horner said that it cannot be guaranteed that an evidence sample not be completely consumed from one test if the sample is not large enough.
“There was testing done prior to Sica’s arrest and some biological evidence had been tested and some it perhaps has been completely used up,” Horner said.
Judge Albright, Superior Court Judge for District 18, agreed that the request for court approved forensic evidence testing and notification is unnecessary and unfair to the state.
“The defendant has no right to tell the state how to conduct its investigation or when to perform analysis,” said Judge Albright. “The defendant doesn’t have the right to a witness at the state’s investigation. I think the state has gone above and beyond what the defendant’s counsel has requested.”
Judge Albright said that while he denies the order to require the state to inform the court prior to testing forensic evidence he does acknowledge the defendant’s right to test forensic evidence if it is available. Judge Albright said that if the forensic sample is only large enough for one test then it does belong to the state and the state must provide its findings with the defendant’s counsel.
“I think it’s fair to give the defendant notice if DNA testing is going to take place and if that sample will be completely consumed by that test,” Albright said.
Albright said he feels that the order to preserve files is fair and that he would rule in order of maintaining evidence to an extent.
“I’ll retain any order of preservation of files that isn’t broad and I’ll retain any order that requires the state not to destroy evidence and to inform the defendant of what’s been done,” Albright said.
Judge Albright said that he would not rule in favor of either order until both had been rewritten so as not to be broad. He encouraged the defendant’s counsel and the state to worked together to agree on file preservation and DNA and forensic testing.
“See if you can work together to create an order that is not broad,” Judge Albright said. “This is a good first draft but you need to work on it and I want to see an order that is not as broad by the end of the week. I will be happy to rule on an order when it is not broad.”
The state requested that Judge Albright rule in favor of a Rule 24 hearing on Jan. 28, 2013, which is the very next criminal session for the Yadkin County Courts.
Horner said that the state has indicated to the defendant that it would attempt to start complying with discovery by mid-December.
“I cannot guarantee that as of mid-December we will give the defendant every shred if evidence at that time,” Horner said. “I don’t know that we’ll have all of the documents compiled from the FBI, Lee County, FL authorities and the Tennessee SBI by that time.”
Reach Lindsay Craven at 679-2341 or at email@example.com.