Police changing policies after rape dismissal
by Staff Writer
CORNELIUS – The Cornelius Police Department is working to prevent dropping future cases. Police Chief Bence Hoyle acknowledges his department’s mistakes played a part in the dismissal of a September 2009 rape case, but said the investigation is ongoing and the department has taken the steps to ensure something like this doesn’t happen again.
The Mecklenburg County District Attorney announced last month the charges were being dropped against Michael Ray Cherry, 40, of Huntersville, because, according to a brief filed with the court, Cornelius police didn’t do enough to secure the chain of custody of evidence, and there were other problems with the arrest. Cherry was accused of a September 2009 home invasion where three people were blindfolded and robbed and a woman was raped.
“The only identification of the defendant as one of the perpetrators of this crime is that his DNA was found on an item left on scene,” Assistant District Attorney Samantha Pendergrass wrote in the brief. “There are multiple inconsistencies in police statements over when this item was collected and by whom it was collected. There are also numerous people who could have had contact with the item after the crime took place and before it was collected by police.”
Hoyle said he understood, and supported the District Attorney’s decision, but that what happened wasn’t a mishandling of evidence, but was an error in reporting who collected it, when it was collected and who processed it.
Hoyle explained that one detective secured the crime scene before interviewing witnesses – which means evidence was collected prior to knowing what happened at the scene. After witnesses were interviewed and the crime scene was reopened, detectives realized there was a vodka bottle that could contain evidence still at the home. That bottle contained Cherry’s DNA police said. The fact that anyone could have come in contact with the bottle after police reopened the scene was troubling for the district attorney, Pendergrass said in her brief.
The officer, who worked the investigation, also misstated that he collected the bottle before reopening the scene.
“The problem was he was so sure, he insisted he collected it because he had been on the scene,” Hoyle said. “But the good news is we have thorough documentation of our crime scene. There’s no way he collected it. But he put that in his statement. That’s where the controversy is. The evidence wasn’t mishandled. The officer misstated his role in the process. We made errors and have adjusted. This was not the main reason for dismissal.”
Hoyle said the fact the victim identified the wrong man in a police lineup didn’t help the case either, as well as the fact another witness had been arrested for drug trafficking, which hurt their credibility.
“All of that together had to make reasonable doubt,” Hoyle said.
Hoyle said if the evidence collection had been the only problem, it could have been explained during trial, if the rest of the case had been “rock solid.”
Hoyle said while it’s disheartening to have the case dismissed, it’s better than if the case had gone to trial as is, and Cherry found not guilty, because they couldn’t charge him with the crime even if they had the evidence to convict him later.
Hoyle said this case is very much open and the department will continue its investigation. He said since this case, the department has created a new procedure for handling crime scenes.
Now, there are two detectives on a case, one handling the interviews, one handling the crime scene. This way, when one of the detectives is securing the scene, the one conducting the interviews can radio back and suggest areas to examine and collect evidence.
In addition to two detectives per crime scene, police sergeants now have the authority to call in extra officers, on overtime, to help secure the scene. Hoyle said this wasn’t a problem on the Cherry case, but when reviewing that case, they saw how it could be a problem in the future and have worked to fix that preemptively.
Hoyle said he’s also asked the State Bureau of Investigation to come in on major cases and make sure the department is handling evidence and investigations appropriately.
“We think we are, but it’s always good to have someone from the outside observe and let you know,” Hoyle
This is the second time in recent months that Cornelius Police have had an arrest overturned by the district attorney. In November, arson charges were dropped against a Cornelius man after the Mecklenburg County District Attorney said there wasn’t enough evidence to secure a conviction in the case.
“That didn’t have to do with how evidence was handled. It was the lack of evidence,” Hoyle said. “We were hoping once the arrest was made … we felt we had enough probable cause to arrest and hoped to find more evidence. But the standard of proof is different in trial. We had enough information to arrest, but not prosecute. This case is still very much active. I still anticipate we’ll be successful, but it will take a while.”
Hoyle said no dismissal is favorable, but the department is working to make sure cases aren’t dropped because of errors from his investigators.
“I stand behind the work we’ve done and acknowledge the mistakes we made, we just have to fix them,” Hoyle said.