MICHAEL IVER PETERSON
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DEFENDANT-APPELLANT'S BRIEF
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ARGUMENTS
I. THE COURT COMMITTED CONSTITUTIONAL ERROR IN DENYING DEFENDANT'S MOTION
TO SUPPRESS
Assignment of Error 1,2,3. R.p. 296.
Much of the State's case was built on physical evidence seized during a search
of Defendant's home, and a second search in which a computer was seized.
Defendant filed a motion challenging these searches, [R.p. 6, 47], and following
a hearing, the trial court denied this motion. [R.p. 56]. The court overruled
Defendant's objections to the introduction of the fruit of the searches,
including a renewed motion challenging the subsequent search of the computer
by a private firm. The trial court concluded, as a matter of law, that the
search warrants were supported by probable cause, and were not fatally overbroad.
[R.p. 61]. In reaching these conclusions, the court ignored fundamental
principles of constitutional law.
The showings in support of the search warrants are quoted verbatim at pages
12-18 of this brief, as is the language of the warrants authorizing the searches.
The first warrant relies upon the statement that Mrs. Peterson reportedly
fell down a flight of stairs, and that there was blood at the scene, including
blood on the entryway to the house and blood on Defendant. Based solely upon
this showing, the warrant authorized an essentially limitless search of
Defendant's residence. The second warrant, authorizing the seizure of computers,
contained the identical information, with the exception of the additional
language that "[a]fter conferring with the District Attorney's Office and
the State Medical Examiners Office, this applicant has probable cause to
believe that additional evidence remains at the scene." [R.p. 44].
Significantly, nowhere in either affidavit was there any mention that there
was a computer in the house, let alone any explanation of why evidence relating
to the death of Mrs. Peterson might be found on the computer. The warrant
imposed no restrictions on the scope of a search of the computer, and in
fact the State hired a private firm to conduct extensive searches of the
contents of the hard drive of the computer.
Both warrants fail basic constitutional requirements under the Fourth Amendment
to the United States Constitution and the Constitution of North Carolina
for searches of private residences.21
21 Even when police are called to the scene of a murder, they may only look for potential victims and perpetrators without a warrant; any additional search must be pursuant to a warrant. Thompson v. Louisiana, 469 U.S. 17 (1984).
A search warrant may only be issued upon a showing of facts that establish
"a fair probability that contraband or evidence of a crime will be fund in
a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983);
see also State v. Fernandez, 346 N.C. 1, 13, 484 S.E. 2d 350 (1997);
N.C.G.S. § 15A-244. The "affidavit must provide the magistrate with
a substantial basis for determining the existence of probable cause."
Gates at 239. The facts must be such that a "reasonably discreet and
prudent person" would rely upon them to find probable cause. State v.
King, 92 N.C. App. 75, 373 S.E.2d 566 (1988). Probable cause requires
a showing both that a crime - rather than an accident - occurred and that
evidence relating to that crime will be found in the place to be searched.
Inherent in this requirement is the rule that conclusory affidavits are
insufficient to establish probable cause. As the Supreme Court noted in
Gates:
Our earlier cases illustrate the limits beyond which a magistrate may not
venture in issuing a warrant. A sworn statement of an affiant that "he has
cause to suspect and does believe" that liquor illegally brought into the
United States is located on certain premises will not do. Nathanson v.
United States, 290 U.S. 41 (1933). An affidavit must provide the magistrate
with s substantial basis for determining the existence of probable cause,
and the wholly conclusory statement at issue in Nathanson failed to
meet this requirement. An officer's statement that "[a]ffiants have received
reliable information from a credible person and do believe" that heroin is
stored in a home, is likewise inadequate. Aguilar v. Texas, 378 U.S.
108. As in Nathanson, this is a mere conclusory statement that gives
the magistrate virtually no basis at all for making a judgment regarding
probable cause. Sufficient information must be presented to the magistrate
to allow that official to determine probable cause; his action cannot be
a mere ratification of the bare conclusions of others.
462 U.S. at 269; see also State v. Hyleman, 324 N.C. 506, 509, 379
S.E.2d 830 (1989)("[t]his Court has held that probable cause cannot be shown
by conclusory affidavits stating only the belief of the affiant or an informer
that probable cause exists to issue the warrant."); State v. Sheetz,
46 N.C. App. 641, 265 S.E.2d 914 (1981).
A related requirement of the Fourth Amendment is that the warrant particularly
describe the place to be searched and the thing to be seized. See also Article
1, Section 20 of the Constitution of North Carolina. General warrants to
search may not be granted. See also N.C.G.S. §15A-246. A warrant that
is supported by probable cause may still be invalid if it lacks the required
specificity. Groh v. Ramirez, 540 U.S. 551 (2004). The requirement
for specificity insures that the showing of probable cause is measured against
the scope of the contemplated search, and prevents officers from determining
the scope of their authority by themselves. In Maryland v. Garrison,
480 U.S. 79, 84 (1987), the Court observed:
By limiting the authorization to search to the specific areas and things
for which there is probable cause to search, the requirement ensures that
the search will be carefully tailored to its justifications, and will not
take on the character of the wide-ranging exploratory searches the Framers
intended to prohibit. Thus, the scope of a lawful search is defined by the
object of the search and the places in which there is probable cause to believe
that it may be found.
The Court has also highlighted the need for specificity in search warrants:
[T]he requirement that warrants shall particularly describe the things to
be seized makes general searches under them impossible and prevents the seizure
of one thing under a warrant describing another. As to what is to be taken,
nothing is left to the discretion of the officer.
Marron v. United States, 275 U.S. 192, 196 (1927).; see also Standford v.
Texas, 379 U.S. 476, 485 (1965); State v. Connard, 81 N.C. App. 327, 329,
344 S.E.2d 568 (1986), aff'd 319 N.C. 392, 354 S.E.2d 238 (1987).
The search warrants relied upon in this case fail these basic requirements.
This is starkly evident in the warrant that authorized the seizure and search
of the computer. There were literally no facts offered to support the claim
that there was probable cause to believe that there was additional evidence
at the scene; rather the magistrate was required blindly to accept this
assertion. The requirement that a search warrant be issued only by a neutral
and detached magistrate is designed to prevent the police from conducting
searches based solely upon their own evaluation of the need for such a search.
The warrant here utterly failed to meet this purpose. Indeed, what is most
striking is that the warrant authorized the seizure of a computer, and unlimited
search of that computer, without mentioning that there was a computer in
the house, let alone describing why evidence relating to Kathleen Peterson's
death might be on that computer.22
22 According to the State's expert, the computer had possibly been accessed during a time when only the police had access to the house, which may explain their interest in obtaining a search warrant. [Tr. 1984-85]
The warrant imposed no restriction on the scope of the search of Defendant's
computer, and none was observed. Indeed, the State employed a private firm,
which had unrestricted access to the hard drive of the computer, searching
all e-mails, compiling a list of all web sites that might have been visited,
and examining the temporary internet files to see images that had been viewed
during web browsing sessions but never downloaded to the computer itself.
A search warrant that authorizes a search of a computer, without restrictions
on the objects of the search, violates the Fourth Amendment and the North
Carolina Constitution, just as a search warrant that authorizes a search
of a "house," without any description of the object of the search violates
the constitution.
Indeed, in Groh, the United States Supreme Court held that a warrant
that authorized the search of a house, with no further limitation, was clearly
in violation of the Fourth Amendment. A computer is the repository of vast
amounts of personal information, in which a citizen has a reasonable expectation
of privacy. Courts confronted with search warrants for computers have made
clear that a warrant must have "specified the purpose for which the computers
were seized and delineated the limits of their subsequent search." United
States v. Hunter, 13 F. Supp. 2d 574 (D. Vt. 1998); see also In re
Search 3817 W. West End, First Floor, Chicago, Illinois, 321 F. Supp.
2d 953 (N.D. Ill. 2004)(warrant must specify nature of files to be examined
or otherwise particularize search). In this case, the warrant simply authorized
the search of the computer, without limitation. As such, the warrant lacked
the constitutionally required specificity.
The search warrant for Defendant's house does not fare any better; the warrant
set out facts showing that Kathleen Peterson was found at the bottom of stairs,
and that there was blood in the house and on Defendant. This evidence was
entirely consistent with an accidental fall. Equally important, this evidence
did not provide factual support for a search of the entire contents of
Defendant's house; yet the warrant authorized a search for "any and all evidence
that may relate to the Death Investigation," [R.p. 33], and searching officers
believed that there was literally no limitation upon the scope of their search.
The search was carried out by dozens of officers, and invaded literally ever
room in Defendant's house. Items taken included the paperwork and documents
from Defendant's study. [R.p. 39-40]. The trial court, then, committed
constitutional error in denying Defendant's motion to suppress, and the
conviction must be reversed.
II. TRIAL COURT ERRED IN ADMITTING IRRELEVANT,
PREJUDICIAL EVIDENCE REGARDING THE DEATH OF
ELIZABETH RATLIFF
Assignment of Error: Nos 5,6, 7, R.p. 296-97
The central question before the jury was whether the State proved beyond
a reasonable doubt that Kathleen Peterson was beaten. The State's direct
case rested largely on forensic evidence, as did the defense case. This forensic
evidence went to the heart of the case; did the nature of Kathleen Peterson's
injuries and the bloodstain evidence at the scene - the circumstances of
Kathleen Peterson's death - prove beyond a reasonable doubt that she was
the victim of a murder. A logical analysis of this evidence would reveal
the proper answer.
Logic, however, was cast aside when the court allowed the State to present
extensive evidence of the death of Elizabeth Ratliff, which occurred 16 years
earlier, was fully investigated at the time and found to be from natural
causes, and for which there was no evidence that Defendant was responsible
or benefitted from. Defendant did not have a motive to kill Elizabeth Ratliff,
nor was there any evidence linking him to her death. Indeed, the evidence
was entirely consistent with death on the morning she was found, when Defendant
was known to be at his own house.
By raising the specter that Mrs. Ratliff was murdered by Defendant, however,
the State was able to argue that the odds that two women would be found dead
at the bottom of the steps were so remote that the jury could infer that
both were murdered, and that they must have been murdered by the man
who knew them both. The weakness in each case would be eliminated by the
suspicions raised in the other. The two deaths would create a false image
of convincing evidence, just as mirrors facing each other create the impression
of a never- ending hall, while each examined in its own light would not withstand
scrutiny. In admitting this evidence, the trial court abused its discretion,
as the evidence should have been excluded under Rules 401, 402, 403 and 404
of the Rules of Evidence. Admission of this evidence deprived Defendant of
a fundamentally fair trial, in violation of his constitutional right to due
process.
Defendant filed a motion in limine and a supplemental motion challenging
the admission of this evidence. [R.p. 91, 104] The State argued that the
evidence was admissible under the doctrine of chances, and was also admissible
even if there was no evidence that Defendant murdered Mrs. Ratliff, or even
that she was murdered at all. [Tr. 9673, 9668]. The court overruled Defendant's
objection, and entered a written order. [R.p. 179]. The order listed 17 alleged
"similarities" between the cases, and included a legal conclusion that there
was sufficient evidence that a jury could find that Defendant committed both
acts, and concluded that the evidence was admissible under Rules 402, 404
and 403 of the Rules of Evidence. [Id.].
Any legitimate relevance to this evidence depended on there being sufficient
evidence not only that Mrs. Ratliff was murdered, but also that Defendant
murdered her. The State, although arguing to the court that the evidence
was relevant even if Defendant had nothing to do with the death of Elizabeth
Ratliff, as it would have allegedly "given him the idea" to stage a similar
death 16 years later23, in reality rested its case on the
allegation that Defendant was responsible for Ratliff's death, and the court's
legal conclusion that the evidence was sufficient for a jury to make this
finding is central to its ruling admitting the evidence.
23 This claim is flawed. Mrs. Ratliff was believed to have died from a stroke, exacerbated by a bleeding disorder, rather than from the fall on the stairs. There was no reason for anyone to believe that Kathleen Peterson would also be viewed as having died from a stroke simply because she was also found on the stairs. Any superficial similarity cannot hide this significant difference, which undermines any claim that a jury could rationally believe that Defendant somehow "learned" how to stage a convincing natural death from the death of Elizabeth Ratliff.
That a woman was found dead in Germany in 1985, and was found by a medical
examiner and the German police to have died from a stroke (not a fall), says
nothing about whether Kathleen Peterson fell or was beaten in 2001. In the
intervening years, literally thousands of people died from both falls and
beatings, and focusing on one case out of the thousands tells us nothing
about how Kathleen Peterson died. Only if there was sufficient evidence that
Defendant was responsible for murdering Elizabeth Ratliff in 1985 is this
death relevant. Indeed, in admitting the evidence under the theory that it
did not matter if Defendant killed Mrs. Peterson, and then allowing the State
to suggest that he indeed was responsible, the trial court abused its discretion
under Rule 403 as any minimal probative value was substantially outweighed
by the unfair prejudice of allowing the jury to speculate about Defendant's
supposed involvement.
The need to substantially and independently link Defendant to the
death of Elizabeth Ratliff as a condition precedent to its potential
admissibility is clear from case law, and the evidence was simply not present
to support this crucial link. In State v. Al-Bayyinah, 356 N.C. 150,
567 S.E.2d 120 (2002), the Supreme Court made clear the requirement of reliable
evidence linking a defendant to the prior crime. In Al-Bayyinah the defendant
was charged with a robbery, and the State was allowed to introduce evidence
that the victim of two prior robberies, after a suggestive pre-trial
identification procedure, identified the defendant. The Court described Rule
404(b) as a rule of inclusion "of relevant evidence of other crimes, wrongs
or acts by a defendant," emphasizing that the evidence must link the
defendant to the prior crime. 356 N.C. at 154 (quoting State v. Coffey,
326 N.C. 268, 389 S.E.2d 48 (1990)). The Court went on to assume, without
deciding, that the evidence was sufficient to link the defendant to the prior
crimes, and reversed the conviction on other grounds. In reversing, however,
the Court observed that the pre-trial identification was of questionable
validity, making clear that this contributed to the reversal.
Although this Court has held that there need not be direct, as opposed to
circumstantial, evidence linking a defendant to a prior crime, State.
Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990), there is still a need to
prove that the defendant charged in the current case in fact committed the
prior crime. The Court noted that a court must take the degree of evidence
linking a defendant to the prior crime into account, including in the balancing
test under Rule 403. 326 N.C. at 459.
The cases that have admitted evidence of a prior death all contain substantial
evidence that the prior death was not only a murder, but also link the defendant
to the prior death. For example, in State v. Stager, 329 N.C. 278,
303, 406 S.E.2d 876 (1991) the Court noted that there must be "substantial
evidence tending to support a reasonable finding by the jury that the defendant
committed a similar act or crime." In contrast to this case, Stager admitted
that she fired the shot that killed her second husband, claiming it was an
accident, and admitted that she was the only person present when her first
husband was shot, allegedly accidentally. In short, there was no doubt
that, if Stager's first husband died from other than accidental means, Stager
was involved in his death. In contrast, in this case there was substantial
doubt that Elizabeth Ratliff died from something other than a stroke, and
absolutely no independent evidence that Michael Peterson had anything to
do with her death.24
24 The state relied on the "fact" that he
was allegedly "the last person to see her alive" the night before her body
was found. This merely assumes that if she was murdered, Defendant did it;
otherwise, the person who committed the murder was the "last person to see
her alive." It also assumes that she died the night before her body was found,
when all the scientific evidence is that she did not die until that morning,
when Defendant was at his own home and could not possibly have been responsible.
The Court in Stager observed that the doctrine of chances "demonstrates
that the more often a defendant performs a certain act, the less likely
it is that the defendant acted innocently." Id. at 305 (emphasis added).
The critical link is independent proof that the defendant performed the
prior act. See also, State v. Moore, 335 N.C. 567, 440 S.E. 2d 797
(1994)(Defendant had financial motive in prior case, in which poison was
administered to prior victim over a period of time); State v. Lanier, 165
N.C. App. 337, 598 S.E.2d 596 (2004)(defendant was married to prior victim,
benefitted financially from his death, after victim became seriously ill
while living with defendant, and defendant refused to get appropriate medical
treatment); State v. Bockowski, 130 N.C. App. 702, 504 S.E.2d 796
(1998)(defendant married to prior victim, prior victim died in his presence
in bathtub, Defendant had insurance on prior victim, and defendant stated
that it was "stupid" of him to kill victims in the same manner).
The doctrine of chances rests on the logical inference that the occurrence
of multiple incidents of an otherwise rare event increases the likelihood
that the occurrences were not accidental. But the logic only applies if there
is independent evidence that the particular person committed each act. Otherwise,
the logic simply becomes bootstrapping – it is more likely that A was
not accidental because B may not be, and it is more likely that B is not
accidental because A may not be – even though the proof is insufficient
as to both.
The classic case examining the doctrine of chances is Rex v. Smith,
11 Cr. App. R 229, 84 L.J.K.B 2153 (1915). Smith was charged with murdering
his wife by drowning her in a bathtub. The prosecution introduced evidence
that two prior wives, covered by life insurance, met a similar fate. As observed
in Robbins v. State, 88 S.W.2d 256, 267 (Tx. Crim. App. 2002): "the
logical proposition was that one drowned bride is an accident, two are
suspicious, and three make murder." This logic applies in the third case
when there is independent evidence that the defendant on trial was present
for and benefitted from the two prior "drownings," but the doctrine of chances
does not logically mean that, in the absence of any evidence that Michael
Peterson was even present when Elizabeth Ratliff died sixteen years earlier,
her death makes Kathleen Peterson's death "murder" rather than an accident.
In this case, there simply was no independent substantial evidence that would
allow a reasonable finding that Defendant was responsible for the death of
Elizabeth Ratliff. Mrs. Ratliff was found dead on Monday morning, with no
signs of rigor, as would have set in had she died the evening before. Defendant
was known to have helped her deliver a car the evening before, but her telephone
was found in her bedroom, which is where she placed each night just before
she went to bed. Thus, the objective evidence indicated that Mrs. Ratliff
died, whether from stroke or otherwise, in the early morning hours, when
Mr. Peterson was at his own home. In addition, Mr. Peterson Defendant had
no motive to kill Mrs. Ratliff; while Defendant and his first wife Patty
honored the wishes of the Ratliffs that they raise the two girls, there was
no evidence that he benefitted financially from this
arrangement25, or had some unusual desire to raise the
girls.26
25 Defendant had possession of items of
the estate that belonged to the girls, but that was consistent with his role
as guardian. There was no evidence that he sold or misused their assets.
26 The State, searching for some motive, did DNA testing in an attempt to
prove Defendant was the father of one of the girls; the test proved that
he was not the father. [Tr. 12889]
Defendant's actions at the scene were innocuous; he did not deal with the
German authorities, as he did not speak German. Defendant's interactions
with American authorities consisted of providing the names of the persons
who were present; he did nothing to interfere with the investigation. His
statements to friends and relatives that Mrs. Ratliff died from a stroke
were based on the expressed findings of the German medical authorities who
were at the scene that morning, later confirmed by Dr. Barnes.
Even if a rational jury could completely disregard the prior medical findings
by the German doctor at the scene, the board certified Army pathologist,
and the Armed Forces Institute of Pathology that Mrs. Ratliff died from a
stroke, and rely instead on an autopsy done 16 years later by pathologists
who did not have access to half of the crucial brain sections, there was
no substantial independent evidence that would allow a rational jury to find
that Elizabeth Ratliff had died the evening before her body was found, or
that she was killed by Defendant.
The lack of evidence tying Defendant to the death of Mrs. Ratliff renders
irrelevant any similarity between her death and the death of Kathleen Peterson;
to hold otherwise would be to allow a defendant to be convicted of murder
based upon similarities that have nothing to do with whether he was responsible
for the prior death. Indeed, many of the alleged "similarities" relied upon
by the court in this case, while interesting, have nothing to do with the
supposed relevance of the evidence. For example, the fact that the deaths
occurred in the later part of the year, or that the women bore a resemblance
to each other, are meaningless unless there is evidence that Michael Peterson
killed Elizabeth Ratliff because of the time of the year or the way she looked.
While "striking similarities" may justify the introduction of evidence of
a prior bad act by the defendant, the similarities must be meaningful.
In this case, whatever similarities may have existed between the circumstances
of the death of Elizabeth Ratliff and Kathleen Peterson cannot obscure the
fact that Defendant was not shown to have been responsible for the death
of Elizabeth Ratliff. Without that crucial evidentiary link, the evidence
from Germany had no relevance to the death of Kathleen Peterson sixteen years
later. Defendant is therefore entitled to a new trial.
III. THE COURT ERRED IN ADMITTING EVIDENCE
OF DEFENDANT'S BI-SEXUALITY
Assignment of Error 11, R.p. 297
During the search of Defendant's house and computer, the State discovered
evidence that Defendant was bi-sexual. This evidence included computer images,
websites and e-mails indicating that on one occasion several months before
Kathleen Peterson died, Defendant attempted to set up a meeting with a male
escort, which fell through. Defendant filed a motion in limine seeking the
exclusion of this evidence, [R.p. 69], which the court refused to rule on
prior to trial.
At trial, the State argued that Defendant opened the door to this evidence
by depicting a close and loving relationship with his wife in opening
statement,[Tr. 7726], and that Kathleen Peterson could have found the material
on the computer, although the computer experts could not say that she did.
[Tr. 7738]. The court overruled Defendant's objection, and entered an order
finding that the evidence was "circumstantial evidence" of motive and that
Defendant opened the door by describing an "idyllic relationship" with his
wife during opening statement. [R.p. 89]. Neither of these rationales justifies
the introduction of this evidence, and the admission of this evidence violated
Rules 401, 402, 402 and 404 of the Rules of Evidence.
Nothing in counsel's opening statement justified the introduction of this
evidence. To the extent that North Carolina law recognizes that otherwise
inadmissible evidence can be introduced to rebut statements made by counsel
in their opening statement, this is limited to evidence that directly explains
or refutes an explicit claim made in opening. Opening statements are not
evidence, and should not be used to justify the introduction of unfairly
prejudicial evidence that, at most, inferentially contradicts the tenor of
part of the opening. The State's evidence, showing only that Mr. Peterson
had an interest in sexual relations with men in addition to his
relationship with his wife, did not directly refute anything said in the
defense opening. The court therefore erred in relying on the opening as a
justification for the admission of this evidence.
The only North Carolina cases that even deal with the issue of whether an
opening statement can render otherwise inadmissible evidence admissible are
State v. Jones, 342 N.C. 457, 466 S.E.2d. 696 (1996) and State
v. Murillo, 349 N.C. 573, 509 S.E.2d 752 (1998). In Jones defendant's
girlfriend testified to an assault committed by Defendant after the murder
for which he was on trial, which was admitted to explain her fear of Defendant,
and thereby explained her delay in admitting knowledge of the murder. The
Court found that the evidence was relevant and therefore admissible. The
Court also noted that defense counsel had discussed these events in opening
statement and observed that the State was entitled "to explain this opening
statement by defendant's attorney." Id. at 464. There was no further discussion
of whether the opening statement would justify the admission of otherwise
inadmissible evidence. In Murillo, Defendant's opening claimed that
his wife, for who's murder he was on trial, was an irresponsible alcoholic.
The State introduced evidence of the victim's performance as a teacher at
school, thereby refuting the allegation made in opening statement. Relying
on Jones, the Court found that the evidence was admissible.
Murillo should not be extended beyond its actual holding, which allowed
the introduction of non-inflammatory evidence that directly refuted an explicit
attack on the victim made in opening statement. Murrillo does not
extend so far as to allow for the introduction of otherwise inadmissible
and inflammatory evidence that, at best, indirectly contradicts the tenor
of an opening statement. Indeed, to hold otherwise would mean that any time
a criminal defense attorney suggested in an opening that the State could
not prove its case, otherwise inadmissible evidence that "proved" the case
would be admissible.
A number of decisions have recognized the danger of introducing evidence
solely to rebut an opening statement, and have refused to allow the introduction
of evidence solely on this basis. If a defendant introduces evidence that
justifies rebuttal, then the door to the rebuttal has been opened. Opening
statements, however, are not evidence, and when they are not followed by
the introduction of evidence, there is no justification for evidentiary rebuttal;
opposing counsel can comment on the failure of the party to introduce the
promised evidence, as the State did in this case, [Tr. 13235] or seek a jury
instruction to disregard the opening, but should not be able to use the opening
as a springboard for introducing extensive, inflammatory evidence. See State
v. Anastasia, 356 N.J. Super. 534, 813 A.2d 601 (2003)(opening statement
is not evidential and not a basis for the introduction of evidence); see
also United States v. Tomaiolo, 249 F.2d 683, 689 (2nd Cir. 1957);
West Virginia v. Richards, 190 W. Va. 299, 438 S.E.2d 331, 335 (1993);
Cooper v. Commonwealth of Virginia, 31 Va. App. 643, 525 S.E.2d 72,
75 (2000).
This case illustrates the danger of extending Murillo beyond direct
refutation of an explicit claim made in opening statement. The defense opening,
while depicting Defendant and his wife as having a good relationship, said
nothing about Defendant's sexuality, the couple's sex life, or whether he
had any interest in sex outside of his marriage. The defense description
of Defendant and his wife as "soul mates" simply was not directly refuted
by Mr. Peterson's perusal of gay erotica, or by his unsuccessful attempt
to meet a male escort. The internet is filled with pornography, viewed by
many happily married people, and proof that a computer was used to access
such sites does not refute an opening statement depicting a good relationship
between a married couple. In addition, as testified to by Walgamott, Defendant's
e-mails made clear that he loved his wife, and simply wanted a one-time physical
encounter. This was consistent with most of Walgamott's clients. Significantly,
when Walgamott failed to show up, Defendant never tried to contact him to
set up another meeting. The defense opening, then, is not directly contradicted
by the evidence, and the evidence should not have been admitted on this
basis.
The State's second contention, that the jury could infer that Kathleen Peterson
somehow first learned of Defendant's bi-sexuality on the night of her death
by accessing the computer, and that this played a role in some fight that
lead to the murder, is pure speculation that does not justify the admission
of this evidence. There was literally no evidence that Kathleen Peterson
accessed the computer before her death. As of 11:00 p.m. on the night of
her death, when Helen Prislinger spoke with Kathleen Peterson, there was
no evidence that the Petersons were in any type of argument. The computer
expert testified that the attachment sent with the email by Prislinger after
11:00 p.m. had not been opened, removing an inference that Mrs. Peterson
accessed the computer. In fact. Todd Markley, the State's computer expert,
testified that it was "very likely" that Mrs. Peterson never saw the e-mail
that had been sent to her. [Tr. 7961]
In addition, the e-mails involving "Brad" were months old and would not have
come up had Mrs. Peterson access the e-mail to her, and the erotic images
were in a temporary internet file that she would have had no reason to access.
In short, the theory that the murder was prompted by the discovery of gay
material on the computer was pure speculation. While the State may rely on
reasonable inferences from the evidence it introduces, it may not rely on
speculation. Indeed, if a defendant may not introduce evidence of a third
party's guilt that does no more than raise conjecture, State v. Watts,
357 N.C. 366, 584 S.E.2d 740 (2003), then the State's evidence must meet
the same standard. In reality, the State's theories were an attempt to get
around the decision in State v. Rinaldi, 264 N.C. 701, 142 S.E.2d
604 (1965). As in this case, Rinaldi was charged with the murder of his wife.
Defendant's wife was found murdered in their apartment. A witness testified
that Defendant solicited him to commit the murder, and also solicited him
for gay sex.
The North Carolina Supreme Court reversed Rinaldi's conviction based upon
the improper admission of the evidence concerning Defendant's interest in
sex with men. The Court made clear the unfair prejudice that stems from such
evidence, and the limited circumstances under which such evidence may be
admitted. "Evidence tending to show that defendant is a sexual pervert does
not, standing alone, tend to establish the fact that he is also a murderer.
To make such evidence competent, the State would have to show some direct
connection between defendant's abnormal propensities and the charge of homicide
for which he is then on trial. . . . The jury should not be prejudiced to
defendant's detriment by evidence tending to prove that he is a moral degenerate,
prepared to commit the abominable and detestable crime against nature, a
felony." 264 N.C. at 705.
The danger of unfair prejudice has not lessened in the years since
Rinaldi to justify abdication of its ruling. One need only skim headlines
about the battle over gay marriage, the exclusion of gay priests, and cases
in which gay men are assaulted to see that a significant portion of the
population stills harbors strong feelings about homosexuality, and that evidence
regarding homosexuality risks tainting the ability of jurors fairly to view
the evidence.
IV. THE COURT ERRED IN ADMITTING IRRELEVANT
AND SPECULATIVE EVIDENCE REGARDING FINANCES
AND MRS. PETERSON'S JOB STATUS
Assignment of Errors 8, 9 and 10, R.p. 297
The State's case made no sense without some explanation for why Defendant
would beat his wife to death in their home. Although there was no evidence
that the Petersons were in any sort of financial trouble that would prompt
a financially motivated murder, the State was allowed to introduce extensive
evidence regarding the couple's finances, Mrs. Peterson's job status at Nortel,
and the general mood at Nortel. The State was even allowed to introduce evidence
that Mrs. Peterson was briefly placed on an "optimization" list, which was
a list of persons scheduled for lay-offs. Although the evidence established
that Mrs. Peterson would not have known of this - and therefore that there
would be no reason Defendant would have known of this - and that Mrs. Peterson's
name was removed from the list after three days, the court overruled Defendant's
objection to this testimony, and overruled Defendant's motion in limine regarding
the financial evidence. In allowing this evidence, the court allowed the
State to introduce speculative evidence that should have played no role in
the determination of this murder trial.
The State made a considerable effort to prove a financial motive for the
murder, but never established anything beyond conjecture that Kathleen Peterson's
death had anything to do with money. As discussed in the previous section
of the brief, evidence that raises no more than speculation should play no
role in a first-degree murder trial. The fact that a person charged with
a crime benefits financially from the victim's death is not legitimate proof,
without more, that they had a motive to commit murder. Most adults carry
life insurance, and other job benefits, from which their spouse would benefit
upon their death. Without proof that this financial benefit in fact motivated
a murder, such evidence should not be put before the jury.
For example, in State v. McDowell, 301 N.C. 279, 271 S.E.2d 286 (1980),
the defendant was charged with the murder of a child found in her grandparent's
home. Defendant attempted to establish that the child's grandfather received
the proceeds of a life insurance policy as evidence that the grandfather
had a motive to kill the child. The Court upheld the exclusion of this evidence,
as the fact that a person is a beneficiary of a life insurance policy does
no more than raise a "mere conjectural inference" that the person committed
the offense, and hence is irrelevant. Id. at 292. In short, evidence of financial
benefits, without more, does not provide relevant evidence of motive to commit
murder.
Cases in which the courts have allowed the introduction of evidence regarding
a defendant's financial affairs, including the receipt of insurance proceeds
from the death of the victim, have all involved some evidence directly linking
the death to the defendant's financial needs. For example, in State v.
Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997), the victim confronted the
defendant about outstanding debts, and there was testimony that the defendant
promised a portion of the proceeds of a life insurance policy on the victim
to a co-defendant who assisted in the murder.
In State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995), defendant
was charged with the murder of her stepson. That Court held that evidence
that defendant's husband, with her knowledge, amended a life insurance policy
days before the stepson's death was relevant to the issue of motive at trial.
In State v. Stager, 329 N.C. 278, 295 (1991) defendant was charged
with shooting her husband. The State was permitted to introduce evidence
that defendant had secretly borrowed large sums of money, had forged her
husband's signature on loan applications and checks, and was in danger of
having a bank contact her husband due to missed loan payments. Defendant
also stood to receive a substantial amount of life insurance proceeds upon
her husband's death. In each of these cases the jury did not need to speculate
about whether there was any link between the defendant's financial circumstances
and the crime.
In this case there was no evidence establishing any link between the death
of Kathleen Peterson and the couple's finances or her job status. Rather,
the State relied on conjecture, which was most starkly exhibited in the
presentation of evidence regarding the short tenure of Kathleen Peterson
on the optimization list, admitted over Defendant's objection. [Tr. 5122-24].
Had the State been able to prove that Defendant was aware that his wife was
on the optimization list, there might have at least been an argument that
Defendant would have had an immediate concern about her job status. If there
was evidence that this concern rose to the level of motive for murder, the
evidence might be admissible. Here, however, the State's own witness testified
that there was no reason for Mrs. Peterson, let alone Defendant, to know
that she had been placed on this list for three days. The extent to which
the State was allowed to go in relying on conjecture that Kathleen Peterson
knew that she was on the list is illustrated by the question to this witness
that "you can't be absolutely certain that someone didn't tell her, can you?"
Defendant's objection to this was overruled. [Tr. 5153]. The fact that a
witness cannot be "absolutely certain" that something did not happen is not
a legitimate basis for inferring that it did happen.
In addition, while there was evidence that people at Nortel were generally
concerned about their job status, there was no evidence that Defendant exhibited
any concern over his wife's job security. In the one e-mail to even address
the subject, Mr. Peterson discussed Mrs. Peterson's stress of working at
Nortel, but then stated "[s]he's a survivor and in no trouble." [Tr. 7856].
In short, there was no evidence that Defendant was ever aware that Kathleen
Peterson was briefly on the optimization list, or was even concerned about
her job security in general. Evidence concerning the optimization list, and
the general stress of working at Nortel, then simply invited the jury to
speculate about a state of mind on the part of Defendant.
The extensive evidence about the couple's finances similarly served no purpose
other than to invite the jury to speculate about a possible financial motive
for an otherwise inexplicable murder. While the evidence showed that the
couple were not wise about their use of credit cards, and that the paper
profits from unexercised stock options had been greatly reduced in the year
proceeding Kathleen Peterson's death, there was no evidence that Defendant
was concerned about their finances. Indeed, the only e-mails that addressed
financial issues at all were one e-mail requesting that Martha's uncle assist
in paying some of her college tuition, and one requesting that Defendant's
first wife assist their grown sons with some credit card debt. [Tr. 7856-58].
Significantly, Martha's uncle replied "[t]hat sounds great, I am now committing
to $5,000 per semester till death due us part," establishing that college
tuition was not a ongoing concern. [Tr. 7957]
The computer was searched thoroughly for e-mails that might show a motive,
and Todd Markley from CompuSleuth testified that they found no e-mails indicating
any ongoing arguments or tension between Defendant and his wife, or in which
Defendant expressed any concern about their income, or about Kathleen's job
status. In fact, the opposite was true; e-mails took pride in their house
and resources. [Tr. 7947-48] Markley admitted that one e-mail, sent to Mrs.
Peterson at Nortel, which read "let's work on our marriage tonight" could
have been a euphemism for having sex, as an explicit e-mail would be screened
by the company's e-mail system. [Tr. 7952]. Finally, any speculation about
whether finances and job stress were causing any tension between Defendant
and his wife was removed by Helen Prislinger's testimony that she could detect
no tension during her conversation with Mrs. Peterson just before she died,
in which Mrs. Peterson spoke with Defendant, and from Ms. Tomasetti's account
of the relaxed atmosphere at the house that Saturday night.
The financial evidence raised no more than improper speculation and conjecture
about a possible financial motive, which invited the jury to rely on something
other than reasonable inferences to decide the case. This evidence should
have been excluded as irrelevant and as unduly prejudicial under Rule 403
of the Rules of Evidence. The introduction of extensive evidence on this
point deprived Defendant of a fair trial, and the conviction must be
reversed.
Finally, the court erred in allowing the introduction of the Equifax report
as substantive evidence of the state of the couple's credit card debt. An
Equifax report is not admissible under the hearsay rules as a business record
as it contains information acquired by Equifax from other companies, and
no foundation was laid that the information contained within the report met
an independent hearsay exception. The report was therefore inadmissible under
Rule 803 of the Rules of Evidence, and the court erred in overruling Defendant's
objection to the introduction of this report. See State v. Sisk, 123
N.C. App. 361, 473 S. E.2d 438 (1996) (business record containing double
hearsay is not admissible), affirmed in part dismissed in part, 345 N.C.
749,. 483 S.E.2d 440 (1997)
V. THE COURT ERRED IN OVERRULING DEFENDANT'S OBJECTIONS TO IMPROPER CLOSING
ARGUMENT
Assignments of Error 22, 23 and 24, R.p. 299
The jurors in this case were called upon to evaluate complex evidence concerning
the processing of the scene of Kathleen Peterson's death, the significance
of blood stains and other forensic evidence, the reliability of pathological
findings and their significance in determining whether the injuries were
the result of a fall or beating. In order properly to make this evaluation,
jurors were required to assess the credibility of the various witnesses who
testified, and the ultimate credibility of the State's case. The ability
of the jurors properly to perform their job, however, was fatally undermined
by repeated improper arguments by the State. The court's failure to sustain
Defendant's objections to these improper arguments was an abuse of discretion
and requires a new trial.
The State's case rested primarily on the testimony of Durham police, EMT's,
agents of the State Bureau of Investigation and medical examiners. Defendant
presented evidence that the police were aware of his column, which routinely
attacked the competence of the Durham police department.
Rather than argue the evidence that supported the credibility of the witnesses,
the prosecution personally vouched for the credibility of witnesses and argued
that jurors could believe the State's experts because the experts worked
for the jurors. The court overruled repeated objections to this line of argument,
and denied Defendant's motion for a mistrial. Specifically, in arguing that
the jurors should reject any evidence that the police might have been motivated
by ill-will toward Defendant, the prosecutor argued:
This defendant is so arrogant that he thinks that state employees, government
employees, that work for your state now, for your courthouse –work in
this courthouse, this very courthouse in our county, he's so arrogant that
he thinks that we would all risk our reputations our integrity –
Mr. Maher: Objection
The Court: Overruled
Ms. Black – our jobs, and even our freedom, for him? He's that important?
I think not. But that's just how ridiculous some of the suggestions have
been to you. Let me assure you that there are other cases, there are other
people that are prosecuted, and he's not so special that we're willing to
risk everything for him.
Mr. Maher: Objection
The Court: Overruled
[Tr. 13119-120].
Evidence was presented during the trial that Ms. Black had taken witnesses
from Germany to a group dinner, which was relevant to establish that the
witnesses had the opportunity to discuss the case prior to their testimony.
Ms. Black responded to this in closing argument by arguing that there was
nothing wrong with going out to socialize, and then stating:
[d]o you honestly –
Mr. Maher: Objection
The Court: Overruled
Ms. Black: – think I'm going to discuss a murder case at Outback with
my two small children ? I think not. That's just how ridiculous now some
of the suggestions have been to you.
The court called counsel to the bench and admonished Ms. Black to stay away
from her personal opinions, but left the ruling overruling the objection
intact. [Tr. 13201].
In addressing the credibility of the experts called by the State, the prosecutor
argued as follows:
Agent Deaver, Doctor Radisch, and Doctor Butts. You know what? They're state
employees. Just like most of us that work here in the courthouse. And they
work for your state. They work for your state, North Carolina.
Mr. Maher: Objection
The Court: Overruled
Ms. Black: Not Chicago, Illinois. Not Connecticut. They work for us. They
gave you truthful and accurate information. And you know what? They did not
get paid one penny extra to come in here. Deaver should have, my goodness
what he had to go through on the witness stand, but, no, he didn't get an
extra penny. They might not have written books that they're signing and
autographing for everybody. They might not travel to all the rest of the
states and give seminars and lectures. They're not allowed to, actually.
It's not that they're not good enough to, it's that they're not allowed to.
They might not have appeared on Larry King Live or Court TV. But you know
what? They are tried and true. Tried and true because they work for us.
Mr. Maher: Objection
Ms. Black: For our state.
[Tr. 13217]
The court then called counsel to the bench, and defense counsel argued that
it was improper to argue that the experts worked for the jurors, and that
this was a basis for assessing their credibility. [Tr. 13218]. The prosecutor
responded that the experts did work for the jurors because "[t]hey work for
the State of North Carolina and the jurors live in the State of North Carolina."
[Id.]. The court then overruled the objection. [Id.].
The prosecution went on to argue that the experts should be believed because
they would appear in court in North Carolina in the future, and would not
risk their reputations by giving inaccurate testimony. "They wouldn't come
in here and give you inaccurate information. They're not going to do that."
Defendant's objection was overruled. [Tr. 13220]. The court then overruled
Defendant's motion for a mistrial, based upon the prosecution's repeated
improper vouching for witnesses. [Tr. 13220- 221]. The court did instruct
the jury to disregard counsel's personal opinion. [Tr. 1322]. No such instruction
was given as to the argument that the experts were credible because they
worked for the jurors.
The courts of this state have repeatedly recognized the dangers inherent
when a prosecutor presents arguments that invite the jury to reach its decision
on an improper basis. The North Carolina Supreme Court, quoting Berger
v. United States, 295 U.S. 78, 88 (1935), observed that a prosecutor:
[I]s the representative not of an ordinary party to a controversy, but of
a sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law,
the twofold aim of which is that guilt shall not escape or innocence suffer.
He may prosecute with earnestness and vigor--indeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate means to bring about
a just one. It is fair to say that the average jury, in a greater or less
degree, has confidence that these obligations, which so plainly rest upon
the prosecuting attorney, will be faithfully observed. Consequently, improper
suggestions, insinuations and, especially, assertions of personal knowledge
are apt to carry much weight against the accused when they should properly
carry none.
State v. Smith, 279 N.C. 163, 166-167 (1971); see also State v.
Jones, 355 N.C. 117, 130-31 (2002).
The rules governing the limits of a closing argument by the State in a criminal
trial ensure that jurors make an independent evaluation of the evidence,
upon proper grounds, rather than simply trusting the assurances of the
prosecution that neither they nor their witnesses would risk their reputations
prosecuting an innocent man. The rules further prevent arguments that invite
jurors to act upon bias or prejudice or other improper grounds, such as accepting
the word of experts who are presented as having some greater credibility
because they somehow work for the jurors. The prosecution in this case repeatedly
violated these rules, and the court repeatedly overruled the objections,
thereby signaling to the jurors that the arguments were permissible. The
one instruction to ignore the prosecutor's personal opinions was insufficient
to cure this error.
The basic rules governing closing argument have been spelled out by the North
Carolina Supreme Court. Perhaps the most thorough discussion is contained
in State v. Jones, supra. The Court laid out the proper purposes of
closing argument and the obligations of counsel:
A lawyer's function during closing argument is to provide the jury with a
summation of the evidence, Herring v. New York, 422 U.S. 853, 861-862,
95 S.Ct. 2550, 2555-2556, 45 L.Ed.2d 593, 599-600 (1975), which in turn "serves
to sharpen and clarify the issues for resolution by the trier of fact," id.
at 862, 95 S.Ct. at 2555, 45 L.Ed.2d at 600, and should be limited to relevant
legal issues. See State v. Allen, 353 N.C. 504, 508-11, 546 S.E.2d
372, 374-76 (2001). Closing argument is a "reason offered in proof, to induce
belief or convince the mind," 2 R.C.L. Arguments of Counsel §
1, at 404 (1914), and "[t]he sole object of all [such] argument is the
elucidation of the truth," id.
In the context of a criminal jury trial, specific guidelines for closing
argument have been set out by the General Assembly:
(a) During a closing argument to the jury an attorney may not become abusive,
inject his personal experiences, express his personal belief as to the truth
or falsity of the evidence or as to the guilt or innocence of the defendant,
or make arguments on the basis of matters outside the record except for matters
concerning which the court may take judicial notice. An attorney may, however,
on the basis of his analysis of the evidence, argue any position or conclusion
with respect to a matter in issue.
N.C.G.S. § 15A-1230(a) (1999)
* * * * *
If attorneys were to scrupulously comply with these seemingly simple
requirements, then the issue of alleging improper arguments on appeal would
prove an exception instead of the rule. Regrettably, such has not been the
case; in fact, it appears to this Court that some attorneys intentionally
"push the envelope" with their jury arguments in the belief that there will
be no consequences for doing so. See, e.g., State v. Call, 353 N.C.
400, 419, 545 S.E.2d 190, 202-03, cert. denied, 534 U.S. 1046, 122 S.Ct.
628, 151 L.Ed.2d 548 (2001).
When, as here, counsel has objected to the improper arguments, the question
is whether the trial court abused its discretion in overruling the objection.
Jones at 131. When there has been clear violations of the rules, the Court
"has not hesitated to overturn the results of the trial court." Id. at 129.
Indeed, in Jones the Court admonished trial judges to actively protect citizens
against convictions obtained through improper arguments. Id.
The arguments here were improper in two respects; the prosecutor vouched
for the credibility of the witness by repeatedly injecting her own opinion
in the argument, and argued that the experts - and by inference the other
witnesses who were state, county or city employees - should be believed because
they worked for the jurors. Statements such as Defendant was "not so special
that we're willing to risk everything for him" were improper as they invited
the jury to rely on the prosecutor's personal assurance that they would not
prosecute Defendant improperly.
Similarly, arguments that the experts are "[t]ried and true because they
work for us" appeal to the jurors' bias by suggesting that they were represented
by the State's witnesses, in contrast to witness called by the defense, who
came from other states. The arguments suffer from the same flaw as those
that the Court condemned in State v. Allen, 353 N.C. 504, 546 S.E.2d
372 (2001), in which a prosecutor argued that evidence had already been found
to be reliable by the trial judge, and that the jurors could therefore trust
the evidence. Jurors are impartial arbiters, and are to make their own assessment
of the evidence. No witness works for the jurors, and it is improper to argue
that jurors should trust witnesses who work for them. To suggest that all
of the complex debate about the processing of the scene and the forensic
analysis should be decided on the basis of the prosecutor's personal assurance
that they would not risk their reputations on bring unfounded charges, and
that the jurors should simply believe the experts who worked for them is
improper. The trial court abused its discretion in overruling these objections,
and Defendant is entitled to a new trial.
CONCLUSION
This trial involved a seemingly simple question; did the State prove beyond
a reasonable doubt that Kathleen Peterson was beaten, rather than injured
in a fall. To answer this question, however, jurors had to assess whether
blood stains at the scene and on clothing were produced at the time of Mrs.
Peterson's death, or the product of poor scene processing. Jurors also had
to assess the competing expert views on the significance of blood stains.
Finally, jurors had to assess the significance of the injuries themselves,
and the lack of significant injuries often seen in beating cases. The jurors'
ability fairly to evaluate this evidence, and the expert testimony presented
by both sides, was crucial to a fair determination of the charge against
Defendant. This ability, however, was fatally tainted by exposure to improperly
obtained evidence, and to extensive evidence that had no legitimate role
in the trial.
Jurors, in essence, were asked by the State to speculate about Defendant's
supposed role in the death of Elizabeth Ratliff, about whether Defendant's
bi-sexuality played a role in an unproven fight, and to speculate about whether
there was a financial motive to the seemingly motiveless crime. In addition,
jurors were told in closing argument that they could trust the prosecutor
and witnesses who worked for the city, county and state because the prosecutor
personally knew that they would not risk their reputations on an unfounded
prosecution, and because the witnesses worked for the jurors and therefore
were trustworthy. Exposure to this evidence, and these arguments, fatally
undermined the ability of jurors to make a fair assessment of the case, and
Defendant's conviction must be reversed.
RESPECTFULLY submitted this the 10th day of October, 2005.
Electronically Submitted
Thomas K. Maher, NCSB 12771
Attorney for Defendant-Appellant
WINSTON and MAHER
312 West Franklin Street
Chapel Hill, North Carolina 27516
Telephone: 919-929-1043
Facsimile: 919 967-4953
E-mail: tkmaher@winstonandmaher.com
CERTIFICATE OF FILING AND SERVICE
THIS IS TO CERTIFY that a copy of the foregoing Defendant- Appellant's Brief
was duly filed and served upon the following by depositing same enclosed
in a post paid, properly addressed envelope in a Post Office or official
depository under the exclusive care and custody of the United States Postal
Service. This the 10th day of October, 2005.
Electronically Submitted
Thomas K. Maher, NCSB 12771
Served on:
William B. Crumpler, Assistant Attorney General
Jack Barnwell, Assistant Attorney General
North Carolina Department of Justice
Appellate Section
P.O. Box 629
Raleigh, NC 27602
TABLE OF CASES AND AUTHORITIES
CASES
Aguilar v. Texas,
378 U.S. 108 . . . . . . . . . . . . . . . . . . . . . . . -53-
Berger v. United States,
295 U.S. 78, 88 (1935) . . . . . . . . . . . . . . . . . . -82-
Cooper v. Commonwealth of Virginia,
31 Va. App. 643, 525 S.E.2d 72, 75 (2000) . . . . . . . . . -69-
Groh v. Ramirez,
540 U.S. 551 (2004) . . . . . . . . . . . . . . . . . . . . -53-
Herring v. New York,
422 U.S. 853,95 S.Ct. 2550, 45 L.Ed.2d 593, 599-600 (1975) -83-
Illinois v. Gates,
462 U.S. 213, 238 (1983) . . . . . . . . . . . . . . . . . -52-
In re Search 3817 W. West End, First Floor,
Chicago, Illinois, 321 F. Supp. 2d 953 (N.D. Ill. 2004) . . -56-
Marron v. United States,
275 U.S. 192, 196 (1927) . . . . . . . . . . . . . . . . . -54-
Maryland v. Garrison,
480 U.S. 79, 84 (1987) . . . . . . . . . . . . . . . . . . -53-
Nathanson v. United States,
290 U.S. 41 (1933) . . . . . . . . . . . . . . . . . . . . -52-
Rex v. Smith,
11 Cr. App. R 229, 84 L.J.K.B 2153 (1915) . . . . . . . . . -63-
Robbins v. State,
88 S.W.2d 256 (Tx. Crim. App. 2002) . . . . . . . . . . . . -63-
Standford v. Texas,
379 U.S. 476, (1965) . . . . . . . . . . . . . . . . . . . -54-
State v. Al-Bayyinah,
356 N.C. 150, 567 S.E.2d 120 (2002) . . . . . . . . . . . . -60-
State v. Allen,
353 N.C. 504, 508-11, 546 S.E.2d 372, 374-76 (2001) . . . . -83-
-iii-
State v. Allen,
353 N.C. 504, 546 S.E.2d 372 (2001) . . . . . . . . . . . . -85-
State v. Anastasia,
356 N.J. Super. 534, 813 A.2d 601 (2003) . . . . . . . . . -69-
State v. Bishop,
346 N.C. 365, 488 S.E.2d 769 (1997) . . . . . . . . . . . . -74-
State v. Bockowski,
130 N.C. App. 702 (1998) . . . . . . . . . . . . . . . . . -62-
State v. Bockowski,
130 N.C. App. 702, 504 S.E.2d 796 (1998) . . . . . . . . . -62-
State v. Call, 353 N.C. 400, 545 S.E.2d 190,
cert. denied, 534 U.S. 1046, 122 S.Ct. 628,
151 L.Ed.2d 548 (2001) . . . . . . . . . . . . . . . . . . -84-
State v. Coffey,
326 N.C. 268, 389 S.E.2d 48 (1990) . . . . . . . . . . . . -60-
State v. Connard,
81 N.C. App. 327, 329, 344 S.E.2d 568 (1986),
aff'd 319 N.C. 392, 354 S.E.2d 238 (1987) . . . . . . . . . -54-
State v. Fernandez,
346 N.C. 1, 484 S.E. 2d 350 (1997) . . . . . . . . . . . . -52-
State v. Hyleman,
324 N.C. 506, 379 S.E.2d 830 (1989) . . . . . . . . . . . . -53-
State v. Jones, 3
42 N.C. 457, 466 S.E.2d. 696 (1996) . . . . . . . . . . . -67-
State v. Jones,
355 N.C. 117, 130-31 (2002) . . . . . . . . . . . . . . . . -82-
State v. Jones,
355 N.C. 117, 558 S.E.2d 97 (2002) . . . . . . . . . . . . . -2-
State v. King,
92 N.C. App. 75, 373 S.E.2d 566 (1988) . . . . . . . . . . -52-
State v. Lanier,
165 N.C. App. 337, 598 S.E.2d 596 (2004) . . . . . . . . . -62-
State v. McArn,
159 N.C. App. 209, 582 S.E.2d 371 (2003) . . . . . . . . . . -2-
-iv-
State v. McDowell,
301 N.C. 279, 271 S.E.2d 286 (1980) . . . . . . . . . . . . -73-
State v. Moore,
335 N.C. 567, 440 S.E. 2d 797 (1994) . . . . . . . . . . . -62-
State v. Murillo,
349 N.C. 573, 509 S.E.2d 752 (1998) . . . . . . . . . . . . -67-
State v. Rinaldi,
264 N.C. 701, 142 S.E.2d 604 (1965). . . . . . . . . . . . -71-
State v. Sheetz,
46 N.C. App. 641, 265 S.E.2d 914 (1981) . . . . . . . . . . -53-
State V. Sisk,
123 N.C. App. 361, 473 S. E.2d 438 (1996) . . . . . . . . -78-
State v. Smith,
279 N.C. 163, 166-167 (1971) . . . . . . . . . . . . . . . -82-
State v. Stager,
329 N.C. 278, 295 (1991) . . . . . . . . . . . . . . . . . -74-
State v. Stager,
329 N.C. 278, 303, 406 S.E.2d 876 (1991) . . . . . . . . . -61-
State v. Wallace,
105 N.C. App. 498, 410 S.E. 2d 226 (1991) . . . . . . . . . -2-
State v. Watts,
357 N.C. 366, 584 S.E.2d 740 (2003) . . . . . . . . . . . . -71-
State v. White,
340 N.C. 264, 457 S.E.2d 841 (1995) . . . . . . . . . . . . -74-
State. Jeter,
326 N.C. 457, 389 S.E.2d 805 (1990) . . . . . . . . . . . . -60-
Thompson v. Louisiana,
469 U.S. 17 (1984) . . . . . . . . . . . . . . . . . . . . -52-
United States v. Hunter,
13 F. Supp. 2d 574 (D. Vt. 1998) . . . . . . . . . . . . . -55-
United States v. Tomaiolo,
249 F.2d 683, 689 (2nd Cir. 1957) . . . . . . . . . . . . . -69-
-v-
West Virginia v. Richards,
190 W. Va. 299, 438 S.E.2d 331, 335 (1993) . . . . . . . . -69-
CONSTITUTIONAL PROVISIONS
N.C. Const. Art. 1 §20 . . . . . . . . . . . . . . . . -53-
STATUTES
N.C.G.S. §§ 7A-27(b) . . . . . . . . . . . . . . . . . . . . -2-
N.C.G.S. § 15A-244 . . . . . . . . . . . . . . . . . . . . -52-
N.C.G.S. § 15A-246 . . . . . . . . . . . . . . . . . . . . -53-
N.C.G.S. § 15A-1230(a) (1999) . . . . . . . . . . . . . . . -84-
N.C.G.S. § 15A-1444(a) . . . . . . . . . . . . . . . . . . . -2-
OTHER
N.C.R. App. Proc. 4 (a) . . . . . . . . . . . . . . . . . . -2-
N.C. R. Evid. 401-404 . . . . . . . . . . . . . . . . . -58-
N.C. R. Evid. 803 . . . . . . . . . . . . . . . . . -78-