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Thursday, May 23, 2024

Superior court judge delays wrongful death hearing of Val D’Auvray, WPD wants extension

Wilmington Police Department (Port City Daily photo/Alexandria Sands)

NEW HANOVER COUNTY — A superior court judge delayed the initial hearing for a Hampstead man’s case against the Wilmington Police Department for failing to prevent and investigate the death of his son.

READ MORE: Wrongful death complaint filed against WPD alleges negligence, mishandling of Val D’Auvray investigation

ALSO: Complaints against WPD officers ‘sustained’ in Val D’Auvray’s death case

On Feb. 29, Joseph Valentine Flor D’Auvray II filed a wrongful death complaint against the WPD regarding the lead-up and investigation of his son’s death before North Carolina’s two-year statute of limitations closes for the claim by the date of the incident. 

His son Joseph Valentine Flor D’Auvray III, known as “Val,” was found dead outside of TRU Colors Brewery around 9 a.m. on April 18, 2022. WPD ruled the death accidental four months later, claiming Val fell from the building’s roof. 

D’Auvray alleges WPD:

  • Failed to act on a missing persons report he filed six days before Val died
  • Failed to respond to risk of harm the night before his son died
  • Repeatedly made false statements to D’Auvray’s family
  • Neglected crucial evidence throughout a dysfunctional investigation

Judge Kent Harrell presided over the complaint Wednesday morning, but delayed the hearing as WPD has yet to file a motion in response. 

Attorney Trey Ferguson of New Bern-based Sumrell Sugg is representing WPD in the case. After the hearing, Ferguson submitted a motion for a 30-day extension. He attributed it to confusion with “this type of complaint” — D’Auvray filed the superior court pro se and doesn’t specify monetary damages — and the need for further review.

The court documents reveal WPD chief Donny Williams received the complaint on March 11. North Carolina law generally requires responses to complaints within 30 days of service, giving WPD until April 10. If the judge grants the extension, WPD would have until May 10 to submit a response.

PCD reached out to Ferguson to ask for more details on the case and why WPD hadn’t filed a motion yet; the attorney said he was unable to comment due to the ongoing litigation.

Outside the courtroom after the hearing, Ferguson told D’Auvray the complaint was “unusual” and difficult to counter in a traditional manner. 

D’Auvray asked Ferguson if the WPD’s delayed response would be outside the two-year statute of limitations for wrongful death claims, which ends April 18.

“Unfortunately, I cannot provide legal advice to you on the statute of limitations issue or about any additional filings you may or may not file at this time,” Ferguson responded.

The NC Rules of Civil Procedure states commencement of wrongful death claims must take place within two years and does not state the delay in a defendant’s response would invalidate it.

D’Auvray told PCD Ferguson advised him to include monetary claims in his complaint. The 13-page document does not request damages, but D’Auvray told PCD last month, he wasn’t looking for money but a fair investigation. Instead his claim calls for discovery to gain information about events leading up to Val’s death and misconduct in the investigation. 

D’Auvray also asked Ferguson to look into issues he believes weren’t adequately addressed during WPD’s investigation. 

He told the attorney body cam footage he’d obtained from WPD’s response to finding Val’s corpse at TRU Colors Brewery included important evidence that wasn’t sufficiently investigated. The brewery’s CEO George Taylor said surveillance footage at the facility was not functioning the night of Val’s death.

He also said a witness attested Val encountered police a second time in the roughly 24-hour period between the April 17 interaction and his death.

“To put it in writing I am requesting to see if the police came upon my son again after the 911 call prior to his death,” D’Auvray wrote in an email to the attorney after Wednesday’s hearing. 

Ferguson responded he would look into the matter.

The superior court complaint includes a report from a former FBI investigator, emails between D’Auvray and WPD, a previous complaint to the agency, and letters from WPD’s internal investigations into two officers involved in the case. 

The hearing was originally scheduled before Judge Frank Jones on April 1, but WPD requested to reschedule it for April 3. 

D’Auvray told PCD he conceded to the date change only on the condition Jones would continue to preside over the case, which was agreed upon. PCD reached out to the Superior Court clerk to ask why Jones did not conduct the hearing and will update upon response.

Jones is familiar with the case and ruled in D’Auvray’s favor in 2022 to release body cam footage from WPD’s April 17 interaction with Val the night before his death. The footage shows WPD’s response to a 911 call for trespassing at assisted living facility Accordius Health of Wilmington around 3 a.m. The officers found Val outside the entrance of the facility; he told them he was seeking temporary refuge in a lighted area because he was being chased and feared for his life.

Val struggled with addiction and received medication-assisted treatment at Coastal Horizons, but he left the facility on April 2, leading his father to file a missing persons report on April 12 after not hearing from his son for 10 days. 

After initially encountering Val, officers returned to their car to run a background check in a computer database, but did not find the missing persons report. While looking through past drug and traffic charges on Val’s record, one officer said “typical homeless shit” and decided “if he’s clean we’ll tell him to kick rocks.”

The officers then told Val they would let him go, but he would be arrested for trespassing if he returned to Accordius. Val agreed but added being arrested may be preferable to the alternative because he feared for his safety. 

One of the officers told Val: “You need to let people know that you need help that you’re being chased,” arguing his concerns didn’t justify entering the health facility. 

D’Auvray’s complaint includes a report from former FBI investigator Frank Brostrom; Brostrom interviewed Tanika Rowley, the nurse who made the 911 call, who said she believed Val’s fears seemed legitimate. The report states Rowley heard about Val’s death shortly after and did not understand why the police ordered him to leave without calling his family or providing assistance.

In 2022, D’Auvray filed a complaint to WPD for Corporal William Ostrosky’s failure to enter the missing persons report, which was “sustained” in a WPD Internal Affairs investigation. Per WPD policy, sustained means “the allegation is true and indicates improper conduct on the part of the employee investigated.”

He also claims WPD’s lead detective on the case lied about the April 17 encounter. D’auvray filed a complaint against the case’s lead detective Jameson Hutchens, stating he repeatedly lied to the family throughout the investigation. One included Val was unstable and without a shirt or shoes on during his April 17 interaction with WPD but footage indicated he was clothed and stable. D’Auvray stated the detective told him Val was breaking into the facility and that police offered to take him to the hospital but Val refused, also contradicted by body cam footage.

On Aug. 31 — five days after WPD closed the investigation into Val’s death — internal affairs sustained the lead detective for on-duty performance. Hutchins was exonerated on claims related to “truthfulness,” meaning any false statements he made were within the scope of his employment and operations of the department.

Last week, D’Auvray submitted new complaints to WPD for the three officers involved in the April 17 encounter. The complaint states he did not have their names or badge numbers but noted to WPD “they can be clearly identified by the department.” D’Auvray requested an internal affairs investigation for possible violations including bias-based profiling, illegal conduct, breaches of an individual’s civil rights, and failure to follow departmental directives.

PCD asked spokespersons Lt. Greg Willett and Brandon Shope if WPD had received the complaint and if there are any updates on its status but did not receive a response by press.


Tips or comments? Email journalist Peter Castagno at peter@localdailymedia.com.

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