Defense questions custody of evidence
Published 12:00 am Saturday, August 16, 2008
WINTON – Two veteran law enforcement officers found themselves on the defensive here Thursday and Friday where the Tyrelle Overton murder trial wrapped-up its first week.
Overton was shot and killed in Ahoskie on July 13, 2002. Eric Alan Oakes is on trial in Hertford County Superior Court for capital murder.
Current Ahoskie Police Department (APD) Chief Troy Fitzhugh and former APD Lt. Curtis Freeman were grilled by David Sutton, defense attorney for the accused murderer. Despite several warnings from Superior Court Judge William C. Griffin to “stop editorializing and get on with the questions,” Sutton was bent on proving that the APD record-keeping in the case was dubious at best.
At the center of attention was a case file that Fitzhugh failed to turn over to those in charge of investigating the murder. Subsequently, he did not turn the file over to District 6B Attorney Valerie Asbell, who is prosecuting the case on behalf of the state, until late last month. In turn, Sutton did not learn of the file’s existence until shortly after the material was turned over to Asbell.
“I should have turned the files over to the DA after the arrests in this case were made (in 2003),” Fitzhugh said as he was questioned by Assistant District Attorney Assata Buffaloe. “I just didn’t think of them.”
Fitzhugh said he began building the file on the day of the murder. It eventually contained interviews and investigative reports.
“I honestly thought that I had given the file to Scott (Outlaw, the APD’s lead detective on the murder case),” Fitzhugh testified.
Instead, Fitzhugh said the file was placed in a filing cabinet in his former office, a cabinet that was moved to his new office once he became Police Chief in 2004.
As far as his role in the murder investigation over six years ago, Fitzhugh said he was employed as a Patrol Sergeant with APD at that time. He was working on July 13, 2002 and was summoned to the Golden Corral parking lot (where Overton was shot) to investigate a motor vehicle accident. There, he was in the midst of that investigation when he was informed by Lt. Freeman that a shooting had occurred and Fitzhugh needed to treat the area (including the vehicles involved in the accident) as a crime scene.
After sealing off the parking lot, Fitzhugh said he went to the entrance of the restaurant where he observed rescue personnel working on a young black male who was lying in the doorway.
After Overton was pronounced dead at Roanoke-Chowan Hospital, Fitzhugh said he went to the hospital to retrieve the victim’s belongings. He said he turned those items over to Misty Ellington, a SBI crime scene investigator working the case.
Under an intense three-hour cross-examination by Sutton, Fitzhugh was riddled with questions about his failure to turn over his case files to investigators as well as repeatedly questioned concerning the chain of custody of the evidence.
Sutton wanted to know who was the custodian of the evidence stored by the APD in 2002 (Fitzhugh answered now retired Captain Mike Cherry) and why wasn’t the custodian’s name recorded on the sheets listing the items held as evidence. Sutton also questioned why Fitzhugh’s name didn’t appear on the items he collected as evidence.
Producing an APD document listing Overton’s personal items retrieved by Fitzhugh from the hospital, Sutton noted there was no name listed of the collecting officer or the date of the collection.
Sutton also questioned why no photographs were taken by Ahoskie Police officers at the crime scene, but the attorney’s long interrogation of Fitzhugh always kept coming back to the questionable record-keeping practices and the failure to turn over files he deemed critical to this case.
“As Chief, do you have a policy to turn over all investigative files,” Sutton asked.
“Yes,” replied Fitzhugh.
“And you broke that policy,” Sutton quizzed.
“As a patrol supervisor (in 2002), yes I did,” Fitzhugh answered.
Freeman, now employed with Hertford County Schools, verified that he was an APD Lieutenant in July of 2002. He was called out to the scene of the shooting and confirmed that he ordered then Sgt. Fitzhugh to treat the area as a crime scene upon learning that a young man had been shot.
He also confirmed that during his walking and observing of the crime scene area, he discovered a spent shell casing in the restaurant’s parking lot. Not having a camera to photograph the exact location of the shell, Freeman said he marked it with a rock, retrieved the shell and collected it as evidence.
“Once Scott Outlaw and the SBI arrived, I stepped back and let the investigators do their job,” Freeman testified.
Freeman was later asked to identify a shell casing that had been part of the evidence in the case. But before doing so, Sutton objected, claiming that the state cannot show proper chain of custody of the evidence.
After sending the jury out, Judge Griffin said, “We’re not going to stop every time they (the state) prepare to introduce evidence. If they can’t show the chain of custody, I’ll know it when I hear it.”
Under cross examination, Sutton asked Freeman if the former APD officer’s initials appeared on the evidence bag containing the shell casing, to which Freeman answered, “no.”
“So, you can’t say this is the shell casing you collected,” Sutton quizzed.
“No,” Freeman replied.
Sutton also pointed out that Freeman failed to mention finding a shell casing in his report to the SBI. He also quizzed Freeman on why no photos were taken by APD officers.
“We let the investigators do that,” Freeman noted, referencing photographing the crime scene.
“Were the investigators there before the body was taken to the hospital,” Sutton asked.
“No,” Freeman answered.
Freeman also answered negatively when asked if he personally collected any evidence from the crime scene.