NOTICE OF MOTION TO DISMISS

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA     §

Plaintiff,     §

§

v.     § Case No.:

§

DERRICK HIGDON     §

Defendant.     §

NOTICE OF MOTION TO DISMISS: SPEEDY TRIAL VIOLATION AND FAILURE TO PROSECUTE

You are notified that on the ____ day of ____________________, 2021, at ________ am/pm, or as soon thereafter as the Defendant can be heard, in Courtroom ___ of the General Court of Justice, Superior Court Division courthouse located at 212 W Elm St # 105, Graham, NC 27253, Derrick Higdon will bring on for hearing his Motion to Dismiss: Speedy Trial Violation and Failure to Prosecute. 

Dated this 13th day of December, 2021.

Respectfully Submitted,

___________________________________

Derrick Higdon,

Defendant in pro per

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA     §

Plaintiff,     §

§

v.     § Case No.:

§

DERRICK HIGDON     §

Defendant.     §

MOTION TO DISMISS: SPEEDY TRIAL VIOLATION AND FAILURE TO PROSECUTE

NOW COMES the Defendant Derrick Higdon as PRO-SE, pursuant to the Sixth and Fourteenth Amendments to the United States constitution; Article 1, Section 18 of the North Carolina Constitution and N.C.G.S. 15A-954(3), who moves this court to dismiss all charges brought against him on 7/23/2017 for 1st Degree Arson, 1st Degree Attempted murder, Break/Enter Terrorize/Injure and Cruelty to animals.  Defendant contends that his constitutional right to a Speedy Trial has been vagrantly denied. In support of this motion, on information and belief from the court of record, emails and statements from the District attorneys office, it is alleged as follows: 

In support of said Motion, the Defendant shows unto the Court the following:

  1. That on July 23, 2017, the Defendant was arrested and charged with 1st Degree attempted murder, 1st Degree arson, Break/Enter to Terrorize and Injure, Felony Cruelty to animals. a warrantless arrest was issued by the Magistrate for the Defendant’s incarceration. 
  2. July 24th, 2017, the defendant was brought to his first appearance on July 23rd but was sent back after ADA Stockwell failed to bring forward evidence and Mt Holly Police to testify. Judge Jackson ruled the defendant was a flight risk and held on a 1-million-dollar bond due to his excessive income. 

The Allegations 

  1. On July 25th  2017th  the Gaston county assistant DA Beth Stockwell along with Mt. Holly Police Detective Baker, brought forward  the DVR Hardware and without showing the video itself to the court, claimed that the video content not only showed the defendant on the scene of the crime, that he was also running around on camera with a gas can and shouting expletives towards the alleged victim.  This led to Judge Jackson holding the defendant on a 1-million-dollar bond.
  2. The Defendant was never notified of any scheduled probable cause hearings regarding the pending charges within 15 days, nor did the defendant waive this right to have this hearing. 
  3. That the case was transferred from District to Superior court on 8/4/2017 from ADA Stockwell to ADA Gulledge. That all offenses were disposed in District court on August 7th 2017. 
  4. The defendant was incarcerated from that point until 9/8/2017 when the Defense appeared before the Gaston County Superior court in a Bond hearing along with ADA Deborah Gulledge present, where it was brought up in open court that the plaintiff had made inconsistent written statements about the criminal case. In the alleged victim’s family court affidavit, she stated that she hid outside the home inside her car when the defendant allegedly entered the home setting it on fire. 
  5. Whereas in the criminal police report it states that she was hiding inside the home in her garage when the fire was intentionally set by the defendant which triggered a 1st degree arson, 1st degree attempted murder charge. These conflicting issues identified that the 1st degree elements for the charges were not met and also now would indicate that the alleged victim was changing her statements to meet the prosecutions narrative.  Judge Poovey granted bond reducing the Million Dollar bond to 150,000 and released the defendant from incarceration. (Transcript dated 9.8.2017)

    October 9th 2017th (Video Reviewed By ADA) 
  6. That on October 9th 2017 Defendant’s attorney Holden Clark accompanied ADA Gulledge to the Mt Holly Police department and both viewed the alleged criminal act caught on the DVR. Yet the conclusion was that although the defendant was on the video, it was clear that the narrative brought forward to Judge Jackson by ADA Stockwell and Detective Baker in the first appearance was not conflicting to what was now seen on the DVR.  
  7. (10/9/2017) That the Defense brought forward to ADA Gulledge and the court that the video content not only conflicted the earlier statements, but it was very noticeable that it had been tampered with. There were multiple instances where the DVR was missing video which was easily seen as segments of time were skipped in which ironically would have shown the alleged victims’ actions and leaving the home to hide in the car as she claimed.

Original Discovery Request

  1. The Defendant was brought for his Superior court arraignment 1/27/ 2018, which he had pleaded not guilty. The concern with the video evidence was brought up and discussed. The defense requested a full copy of the DVR Video content along with accompanied technical logs.  ADA Gulledge stated that she would have to get the State Crime Lab to make a copy of the “entire contents” of the DVR and provide a copy to the Defense as she did not have any way of doing so.
    In conclusion, Judge Pomeroy stated that it was the ADAs responsibility to provide a full copy of the DVR Video content for the defense That he also wanted both counsel and the district attorney to work together and finalize the order from that discovery hearing and he would sign it.  
  2.  It was noted that not only by the MT Holly Detective Baker retrieved the DVR physically brought it into district court and along-side ADA Stockwell presented it as evidence at the first appearance without showing the court the content. Claiming that the defendant was caught red handed running around the alleged victim’s property with a gas can, screaming obscenities.
  3. Then returning the DVR back to the next-door neighbor (Randy Tarlton) after not knowing how to access the DVR.  Neither party had the technical qualifications to administer making copies. It was made clear that even at this point of time there was a concern of what would be left to copy after the evidence was left unattended and now left with the neighbor for four months breaking the chain of custody and possibly exposing the DVR to possible tampering that could prejudice the defendants right to obtain a true copy of the original content.   
  4. On January 27th, 2018, Judge Pomeroy also inquired if ADA Gulledge would now place this case on the trial calendar at that time and ADA Gulledge agreed that she would. Neither of these things were done. 
  5. On March 8th 2018 defense counsel Holden Clark was asked to withdraw from the defense due to failing to act in the best interest of the defendant and other issues which were also pointed out by Judge Pomeroy when he reminded him that he had the right to interview, investigate the matters and in conclusion after nearly a year he failed to do any of this nor obtain an expert the defendant had been begging for him to get since October 9th 2017. 

    Discovery Complaint & Delay
  6. On October 3,2018 after Judge Caldwell ordered the defendant’s out of state attorney off the case, the defendant expressed additional concerns regarding the ongoing excessive delays finalizing Judge Pomeroy’s final discovery order from January 27th and how the ADA had still not given the defense a full copy of the DVR. The defense explained to Judge Caldwell how the responsibility to draft the order not just of his former attorney Holden Clark, but also ADA Deborah Gulledge.  ADA Gulledge argued that the defendant terminated Holden Clark before he had a chance to finalize the order as the reason for delay the defense counter argued by demonstrating that Mr. Clark had not officially withdrawn until the March 23rd, 2018, which nearly two months after the discovery hearing, which was enough time to work with the ADA and finalize the order. 
  7. Judge Caldwell requested the district attorney Deborah Gulledge to work with the defense utilizing the transcript from the 1/27/2018 motion of discovery hearing to put the order together for Judge Pomeroy to sign as he was the original judge who did not have the opportunity to sign the judgement.  Judge Pomeroy would not be on the bench again until the 1st quarter of January 2019 where he would go on to sign the order.  
  8.  The defense explained to Judge Caldwell how there were pertinent motions submitted months prior and how ADA Gulledge failed to calendar them. Judge Caldwell stated that he would not be able to hear those motions today, but he was ordering ADA Gulledge to re-calendar these motions for a later date.  These motions again were never calendared for court until almost 8 months later on May 13th, 2019.

    2nd Discovery complaint & Additional Delays 
  9. On 11/26/2018 the defense complained about the ongoing delay of getting the full copy of the DVR and requested the approval for his indigency to obtain an expert.  Senior Judge Caldwell approved the defendants indigency and stated that if the defense had an expert selected, that he would sign off on it as soon as possible.  ADA Gulledge claimed that her delay was that she had an agreement with the new counsel not to send the DVR off to be copied. There is no evidence of this conversation nor was the defendant aware of this.  The new defense team came on board within one month of Mr. Clarks withdrawal in April 2018.  The defense argued that another 8 months had passed this time and obtaining new counsel should not have delayed ADA Gulledge from obtaining a copy of the DVR for the defense.  Judge Caldwell stated that multiple factors existed starting with the delay of the signing of the discovery motion and strongly suggested to ADA Gulledge to get a copy asap.  
  10. The Defense moved to remove his ankle monitor as he had been compliant, and Judge Caldwell asked the ADA if the alleged victim had any concerns or  had any interaction with the defendant since the original complaint. Misty Oakes communicated yet another allegation to Senior Judge Caldwell about how the defendant waited for her outside the monitored supervised facility where they exchange the minor child. The judge asked her if she had informed ADA Gulledge about this at that time or at all or her attorney, she replied “no.” The judge ordered that the defendant would no longer be required to wear a GPS monitor for pretrial and that the ADA had a problem and needed get control of this matter. He also told the defendant that he could approach him on any procedural issues via motion when there is a major issue and to continue to avoid contact with the alleged victim. 


Expert Avoidance and Delays

  1. On December 30th, 2018, the defense identified and started the process to retain an expert to examine the DVR and make a copy, yet, after notifying ADA Gulledge via email on 1/14/2019 she refused to allow the inspection by the expert saying that it was unheard of and once again prejudicially delaying the defense by avoiding expert examination and then sending the DVR to the SBI crime lab to avoid obtaining possible exculpatory evidence to include possible evidence tampering.
    On January 16th, 2019, in an email between ADA Gulledge and the defendant Derrick Higdon ADA Gulledge gave a conflicting statement in regard to why the order was not finalized by herself and previous counsel Holden Clark at the conclusion of the January 27th court hearing. She now stated that Judge Sumner told Holden Clark at his withdrawal hearing not to finalize Judge Pomeroy’s discovery order and to let the defendant’s next counsel complete the order. That the defendant was not given that information nor had he been able to retain new counsel by the time of the withdrawal hearing.  
  2. That on 1/19/2019 ADA Gulledge initiated sending the DVR to the NC Crime Lab in Raleigh via the Mt Holly PD from the Mt Holly Police Department.  This was delayed over a year and a half since the original request and ordered by Judge Pomeroy and Sr Resident Judge Caldwell’s insistence to get things moving.  Her argument was that she stated the transcript stated it must go to the crime lab first before the expert examination.  The defense contends that the transcript states a qualified expert could do an independent review whether it be the crime lab at the State Crime Lab or be at the Mt Holly Police station. Judge Pomeroy’s intent was to allow the defense expert to observe, extract and analyze the video content he did not state whether it could be done before nor after, as long as the safeguards are in place to preserve the evidence. Regardless ADA Gulledge already was aware that at this point the evidence had already been accessed by non-qualified people to create the DVD clips that were already entered into evidence.  
  3. That ADA Gulledge gave the defendant an ultimatum whether to receive a specific timeline from the DVR or if the defense wanted a full copy, we would have to furnish our own Hard disk drive. The defendant chose to identify a selected time period but also wanted a full copy as the order stated. 
  4. The Defendant argues that in bad faith, the Mt Holly Police Detective Baker intentionally did not submit the DVR video clips that they captured on DVD and submitting into discovery evidence to the State Crime lab. The Defense contends that doing so would identify whether the original DVR video content matched what was submitted on the DVDs that are in discovery. 
  5. That obtaining the Hash value was not technically sufficient in evaluating whether the submitted DVD videos were edited to prejudice the defendant’s case or not. Because this technical comparison was not done, the current evaluation would only conclude that the DVR Hard drive had the right amount of advertised One Terabyte (equivalent to 931GB) of disk space to hold the content, not evaluating whether the video clips in discovery were altered or edited.  This in turn has created another eight- or nine-month delay in obtaining a true expert comparison evaluation. 
  6. According to discovery evidence the State Crime lab released the DVR a full copy of Item 5(1TB DVR) and the evaluation report to Mt Holly Police Department on March 3rd, 2019. ADA Gulledge emailed the defendant claiming that she did receive a notification that on April 9th that the crime lab had returned only the contents of the DVR on a standalone Hard drive in a sealed box to the Mt Holly Police Department.  She stated that we could meet at the Mt Holly Police department and unseal the box and view the content of the Hard drive together.  When the defendant requested a copy of the written report from the State crime Lab, ADA Gulledge via email stated that the defendant could bring a hard drive and make his own copy of the Hard drive. ADA Gulledge stated that she did not get a copy of the report from the State crime lab yet.  This request created yet another delay as the defendant felt that this would prejudices the defendants’ rights, where there should not be additional requirements added ala carte to receiving discovery where in the past this request was not made to receive other discovery evidence.  
  7.  After getting these requests from the ADA Deborah Gulledge to observe this content by the state, the Defendant repeatedly has asked the State for a copy of the Crime lab report, the Chain of custody for the DVR its content and Hard drive before and after being submitted to the crime lab.  This was ignored and the state refused to comply.  
  8. That on April 19th, 2019, ADA Gulledge intentionally gave the defense a partial report from the State crime lab evaluation of the DVR video. That because this report was submitted into discovery and to the defense in this manner there is the possibility for exculpatory evidence to be hidden. There is clear evidence that indicates that this was intentional that the defense plans on presenting to the court. One key element is that the State crime lab identified that the DVR time was faster by 38 minutes. This detail would completely change the timeline entirely on who was where and when making the video content inadmissible.  These actions would also prejudice the defense from being able to prepare an adequate defense.   The defense to this day still does not have a full copy of the State Crime Lab reports to effectively prepare for any trial defense. 

    Suppression Hearing and transcript Delay
  9. That on May 13th, 2019, as mentioned on item 15 that a hearing was finally calendared for a suppression hearing where the defense arranged for witnesses to attend and was prepared for the hearing on that date. But come mid-morning ADA Gulledge approached me Stuart Higdon and told me that our case was on standby and would not be heard that day and that she would email me when the time came for us to have our hearing.
  10. On May 20th I received an email at 3pm from ADA Gulledge stating that our case was going to be heard the following morning at 9:30am in 4C.  I immediately reached out to Attorney Stuart Higdon as I was immediately concerned that I was now being given less than 24hours to have my witnesses on hand and ready for the suppression hearing.  He stated that the court would be closed on the 21st so the hearing would be heard on the 22nd. This still did not give the defense adequate time to call witnesses nor be fully prepared for the hearing.  
  11. Upon the conclusion of the hearing ADA Gulledge and Judge Kuenardt communicated exactly what they wanted the order to say and the judge asked ADA Gulledge to draw up the order and provide the defendant with a copy of the draft along with a copy to the stand-by counsel.  Judge Kuenardt also required another 10 days so the defense could respond to the draft to make corrections or additions. Judge Kuendardt requested this to be communicated thru email yet both parties need to be copied.  
    Judge Kuenhardt specifically stated for no one to communicate with the court reporters but the court and for the court reporters to email them to him first and he will forward these on to everyone else.
  12. The Defendant had not received transcripts nor any orders by June 30th, 2019, so he copied ADA Gulledge, Judge Kuenardt and standby attorney Stuart Higdon to request for assistance.  There was no response which led to the defendant. On July 5th, 2019, via email ADA Gulledge wrote stating that both court reporters communicated with her asking “if” we wanted the transcripts from the May 22nd/23rd court hearing and if so they needed a written order by a Judge.  The defendant argued the point that Judge Kuenardts instructions were clear, and the delay was caused by the delay of not having the order drafted and finalized and that a hearing needed to be held immediately to cover this.
  13. On July 17th at 2:47 PM ADA Gulledge emailed the defendant stating that my complaint about the transcripts matter were being held the very next day at 9:30am in court room 4C.  Again, this was only giving the defendant less than 24 hours to plan to be in court the very next morning. This was again creating a disadvantage no matter what type of hearing it was as this was another abuse of the calendar. 
  14. On July 17th 2019 the defendant via email Judge 6 months later the transcripts were emailed to the defendant directly from ADA Gulledge versus the court reporters on October 11th 2019. Then ironically, I finally received the final order drafts on the exact same day from ADA Gulledge. There was an open communication between the Judge and ADA Gulledge and the defendant about the orders which concluded with the defendant objecting to the orders as ADA Gulledge wrote it with extreme bias and the fact that such a delay had created a jurisdictional issue as Judge Kuendart was no longer in Gaston County and because ADA Gulledge intercepted the transcripts before the defendant had a chance to read them. ADA Gulledge’s actions directly went against Judge Kuenardts verbal order captured within the transcripts. These same actions caused damage the defenses case as well as caused a 7–8-month delay.  
  15.  That on August 27th 2020, ADA Gulledge complained about how the defendant had not made arrangements to meet with her to open a single box allegedly returned from the State Crime Lab. The ADA continued to mislead the court that she was fully ready for trial but had been waiting for the defendant to comply.  Senior Judge Caldwell heard the defenses argument about how this request was not procedural and suspicious to the defendant. The defendant also brought up the continuous intentional delays to produce the full copy of the DVR and the historical information surrounding it. That ADA Gulledge had already physically viewed the content with the defendant’s former attorney Holden Clark back on October 9th, 2017, admittingly did not see anything resembling the prejudicial statements and claims made by the District attorney’s office and Mt Holly Police Detective Baker, about the defendants actions on the video to Judge Jackson.    
  16. Judge Caldwell compelled ADA Gulledge to produce the full copy of the DVR to the defense within 10 days.  ADA Gulledge told Judge Caldwell how she was scheduled for leave the following week, yet Judge Caldwell told her that he was not making any changes to his order. 
  17. On September 23rd ADA Gulledge via email wrote the defense stating that she reached out to the State Crime lab for “another copy” of the contents of the DVR that they could provide us and that the crime lab recommended they did a hash check on each file on the hard drive for comparison to ensure all the files are identical to what was on the hard drive returned to them. That Detective Baker was working on getting this done 2 days before the hearing and hoping they could make the defenses copy by Friday along with the property sheets from the police department. 
  18. On September 10th, 2019, ADA Gulledge again attempted to misuse the calendar again via email stating our hearing was being held the next day with Judge Caldwell in room 4C. She claimed that she was filing a motion to extend the order to give her more time to produce the full copy of the DVR. I objected to the hearing as again this would give me less than 24hours to appear. The new hearing was scheduled for September 25th. 
  19. On Friday September 25th, 2019, ADA Gulledge asked to meet with the defendant to give him a copy of the hard drive she received from the detective. As the defendant signed for the Hard drive ADA Gulledge stated that she could only give me what they gave her.  After discussing the Hard drive with stand by counsel Stuart Higdon, the defendant requested from Judge Caldwell time to inspect the Hard drive that was received and reserved the rights to make objections and comments. Judge Caldwell agreed.  
  20. That the evening of September 24th, 2019, upon inspection the Hard Drive given to the defendant was corrupted and mostly unreadable. That ADA Gulledge stated that they were going to be making her another copy which would state that there was a second copy in which the ADA would be able to view whereas upon inspection she would have seen the defenses copy was not viewable.  The defendant has sent multiple emails to ask ADA Gulledge whether her drive was viewable or not, knowingly if she inspected the defenses copy before submitting it, she is fully aware we did not receive a full true copy.  
  21. That additional information has been received and compared to emails and transcripts the defense contends between the ADA and Mt Holly Police department, both parties have committed fraud on the court by willingly and maliciously submitting false manipulated evidence in bad faith under the color of the law. The defense has obtained evidence that shows that the instruction and evidence submitted to the crime lab in bad faith evaded a true evaluation of the DVR content provided within discovery.  That the State crime Lab did not return the single hard drive back in a box as the ADA claimed; that they not only sent back video clips captured from the DVR on a HDD, but made a true full copy of the Hard drive for the defense prior to Judge Caldwell requesting for it to be made. That ADA Gulledge avoided giving this to the defense by illegally by knowingly giving the defense a false an unreadable version of the content.  

PRAYER FOR RELIEF

WHEREFORE, for the above-cited reasons, the Defendant prays to this Honorable Court to dismiss all charges with prejudice for the reasons cited above.

Dated this 13th day of December, 2021.

Respectfully Submitted,

___________________________________

Derrick Higdon,

Defendant in pro per

VERIFICATION

I, Derrick Higdon, being duly sworn depose and say that I am the Defendant in the above-entitled action, that I have read the foregoing Motion to Dismiss: Speedy Trial Violation and Failure to Prosecute, and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this ___ day of ___________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

CERTIFICATE OF SERVICE

I, Derrick Higdon certify that on the  X day of , 2021, a copy of the foregoing was hand-delivered to the County court District attorney.   

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