CHARLOTTE, NC (WBTV) - Attorneys for a Charlotte police officer accused of shooting and killing an unarmed man in 2013 are asking a judge to throw the case out, claiming evidence was destroyed.
Charlotte-Mecklenburg Police Officer Randall Kerrick is accused of shooting Jonathan Ferrell ten times during an incident in Sept. 2013.
Ferrell, an unarmed Charlotte man who had wrecked his car in the Reedy Creek community in northwest Charlotte, knocked on the front door of a house apparently seeking help. The woman inside frantically called 911 to report a home invasion.
Kerrick and three officers responded to the suspicious activity call and encountered Ferrell.
Charlotte-Mecklenburg Police say Kerrick fired his gun 12 times, hitting Ferrell ten times. He was charged with voluntary manslaughter after the shooting.
According to a document filed Wednesday, Charlotte-Mecklenburg Police officer Randall Kerrick's attorney says he had a conversation with the Senior Deputy Attorney General later that month, voicing concerns about the preservation of evidence in the case.
That's when they asked that "any and all evidence" in the case be preserved. The Senior Deputy AG said he had no objection with the defense notifying the judge that the AG's office did not object to CMPD and the SBI safeguarding all possible evidence.
The motion was served, according to court documents, 18 days later on October 2.
According to the filing, as defense attorneys were going through evidence ahead of Kerrick's July 2015 trial they learned that several witnesses indicated Ferrell ingested "illegal drugs, possibly marijuana, and/or other substances on the night of the shooting."
The other two officers at the scene of the shooting with Kerrick said that Ferrell was "uncooperative, aggressive and erratic" on the night of the shooting. One of the officers said he believed Ferrell was "on something" due to his behavior, according to the filing.
A medical examiner's report on the shooting indicated there was no skull fractures or injuries to Ferrell's brain. There was some speculation that Ferrell may have suffered a head injury in the crash before encountering the officers.
The filing claims that since there were no injures, his behavior was likely caused by alcohol and substance in his body.
In February, the defense filed a notice that it planned to argue self defense saying Ferrell's alleged behavior put Kerrick in "reasonable fear of imminent death or bodily injury and that he was therefore justified to use deadly force to protect both himself as well as others on the night of the shooting."
Defense attorneys argue that knowing what Ferrell consumed before encountering police is "extremely relevant to this case."
The filings say the medical examiner told attorneys that toxicology tests found "notable exceptions including THC (marijuana), LSD and other hallucinogens."
In December 2013, a CMPD investigator, who now oversees CMPD's Lab and Evidence Bureau, sent blood samples from Ferrell to a laboratory in Pennsylvania to be tested for additional hallucinogens, marijuana and synthetic cannabinoids.
According to attorneys, the lab warned the investigator that samples could be destroyed or discarded if there was not a request in writing to store the samples.
The toxicology report from the lab was completed on December 24, 2013 with the results and another warning that "the remainder of the submitted specimens will be discarded six weeks from the date of this report." Investigators received the report a week later.
According to the filing, even though defense attorneys filed a motion to preserve evidence four months earlier the specimens were allowed to be destroyed in February 2014. Defense attorneys were not given the lab's report until April 2014, two months after the evidence had been allowed to be destroyed.
Court documents say the sample that was sent to the lab was "nearly the majority of the blood collected."
Attorneys say allowing the evidence to be discard is a violation of the motion to preserve the evidence.
According to the filing, the defense attempted to get independent testing done on the blood, but was told by the lab there was insufficient amounts of blood to test. The medical examiner's office claims 5 milliliter's of blood was sent to the lab in March, but the lab says it only received a half-milliliter, which is not enough to test.
Liver samples held at the medical examiner's office can be tested, according to the filing, but laboratory officials say testing for bath salts and other substances cannot be detected in liver testing. Those types of drugs can be detected in urine samples, but the documents say no urine samples were preserved.
Attorneys are asking that the indictment against Kerrick be dismissed "with prejudice" for violating Kerrick's rights. They asked if the indictment was not dismissed, the defense should be able to get the last argument at the trial, "even if he chooses to submit evidence."