NO. COA 05-973 FOURTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
STATE OF NORTH CAROLINA, )
) Durham County
) No. 01 CRS 24821
MICHAEL IVER PETERSON, )
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES............................... -i-
QUESTIONS PRESENTED.......................................... -1-
STATEMENT OF THE CASE........................................ -1-
STATEMENT OF GROUNDS FOR APPELLATE REVIEW. .................. -2-
STATEMENT OF THE STANDARD FOR APPELLATE REVIEW............... -2-
STATEMENT OF FACTS........................................... -2-
I. THE COURT COMMITTED CONSTITUTIONAL ERROR IN
DENYING DEFENDANT=S MOTION TO SUPPRESS................. -50-
II. THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT,
PREJUDICIAL EVIDENCE REGARDING THE DEATH OF
ELIZABETH RATLIFF...................................... -57-
III. THE COURT ERRED IN ADMITTING EVIDENCE
OF DEFENDANT=S BI-SEXUALITY............................ -66-
IV. THE COURT ERRED IN ADMITTING IRRELEVANT
AND SPECULATIVE EVIDENCE REGARDING
FINANCES AND MRS. PETERSON=S JOB STATUS................ -72-
V. THE COURT ERRED IN OVERRULING DEFENDANT=S
OBJECTIONS TO IMPROPER CLOSING ARGUMENT................ -78-
CERTIFICATE OF SERVICE AND FILING........................... -88-
TABLE OF CASES AND AUTHORITIES
Aguilar v. Texas, 378 U.S. 108...............................-53-
Berger v. United States, 295 U.S. 78, 88 (1935)..............-82-
Cooper v. Commonwealth of Virginia, 3
1 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-
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-
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-
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-
West Virginia v. Richards,
190 W. Va. 299, 438 S.E.2d 331, 335 (1993)...................-69-
N.C. Const. Art. 1 '20 .................................. -53-
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-
N.C.R. App. Proc. 4 (a) ....................................-2-
N.C. R. Evid. 401-404 ...................................-58-
N.C. R. Evid. 803 ...................................-78-
NO. COA 05-973 FOURTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
STATE OF NORTH CAROLINA, )
) Durham County
) No. 01 CRS 24821
MICHAEL IVER PETERSON, )
I. WHETHER THE COURT COMMITTED CONSTITUTIONAL ERROR IN
DENYING DEFENDANT=S MOTION TO SUPPRESS?
II. WHETHER THE TRIAL COURT ERRED IN ADMITTING IRRELEVANT,
PREJUDICIAL EVIDENCE REGARDING THE DEATH OF
III. WHETHER THE COURT ERRED IN ADMITTING EVIDENCE OF
IV. WHETHER THE COURT ERRED IN ADMITTING IRRELEVANT AND
SPECULATIVE EVIDENCE REGARDING FINANCES AND MRS.
PETERSON=S JOB STATUS?
V. WHETHER THE COURT ERRED IN OVERRULING DEFENDANT=S
OBJECTIONS TO IMPROPER CLOSING ARGUMENT?
STATEMENT OF THE CASE
Defendant was indicted for the first-degree murder of his
wife. [R.p.5]. Defendant was tried by a jury before the Honorable
Orlando Hudson, in the May 5,2003, Criminal Session of Durham
County Superior Court. Defendant was convicted and sentenced to
life in prison, and gave timely notice of appeal.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
This is an appeal of right pursuant to N.C.G.S. '' 7A-27(b)
and 15A-1444(a) and Rule 4(a) of the North Carolina Rules of
STATEMENT OF STANDARD FOR APPELLATE REVIEW
The standard of appellate review of the denial of Defendant=s
motion to suppress, presented as Argument I, is that the trial
court=s findings of fact are binding if supported by competent
evidence, but conclusions of law are fully reviewable on appeal.
State v. McArn, 159 N.C. App. 209, 582 S.E.2d 371 (2003). The
trial court=s decision to admit evidence regarding the financial
status of Defendant and his wife, the death of Elizabeth Ratliff,
and Defendant=s bi-sexuality, presented as Issues II, III and IV
are reviewed for relevance with deference, and under Rule 403, for
an abuse of discretion. State v. Wallace, 105 N.C. App. 498, 410
S.E. 2d 226 (1991). The trial court=s decision to overrule
Defendant=s objections to improper closing arguments, presented as
issue V, is reviewed for an abuse of discretion. State v. Jones,
355 N.C. 117, 558 S.E.2d 97 (2002).
STATEMENT OF THE FACTS
In the early morning hours of December 9, 2001, Michael
Peterson called 911 and reported that he found his wife, Kathleen
Peterson, laying on the bottom of a flight of steps, still
breathing. The person taking the call later testified that Mr.
Peterson was hysterical. Mr. Peterson called a second time to
determine if help was on the way. When EMT and firefighters
arrived, they found Mr. Peterson trying to help his wife, who was
laying on the lower portion of a flight of wooden steps. Mr.
Peterson was distraught, and Mrs. Peterson appeared to be deceased.
Dr. Kenneth Snell, the medical examiner, examined Mrs.
Peterson=s body and found that she had several lacerations on the
back of her head. After examining Mrs. Peterson=s injuries, and
the blood stains near her body, Dr. Snell came to a preliminary
conclusion that she died as a result of an accidental fall on the
Police officers at the scene became suspicious of the
circumstances of Mrs. Peterson=s death because of blood stains in
the area. After speaking with police, Dr Snell changed his
opinion, and concluded that Mrs. Peterson had died from blunt force
trauma. Defendant was indicted murder on December 20, 2001, only
11 days after her death and before the autopsy report was
completed. The State ultimately proceeded on the theory that
Defendant beat his wife with a fire-place tool known as a blow
poke, which they claimed had been in the house prior to Mrs.
Peterson=s death but disappeared by the time the police arrived.
Defendant presented evidence that the injuries were consistent with
a fall on the stairs rather than a beating, and produced the blow
poke. After a lengthy jury trial, and several days of
deliberations, Defendant was convicted of first degree murder and
sentenced to life in prison.
This appeal focuses upon the admission of evidence from a
search of the Petersons= home, the admission of evidence relating
to the death in 1985 of Elizabeth Ratliff in Germany, the admission
of evidenced regarding the financial and job status of Defendant
and his wife, the admission of evidence indicating that Defendant
was bi-sexual, and improper closing arguments made by the State.
B. Evidence Regarding December 9, 2001
In December, 2001, Michael Peterson and his wife, Kathleen,
lived in a large house at 1810 Cedar Street, Durham. Defendant
was an author with several successful novels. Defendant was active
in Durham politics, having run for mayor and the city council and
was an outspoken critic of the Durham Police Department with a
regular column in the Durham Herald. Kathleen Peterson had risen
through the ranks at Nortel, and was a well compensated executive.
The marriage was the second for both; Defendant had two grown
sons, Todd and Clayton, and had also raised the daughters of a
deceased friend. Those daughters, Margaret and Martha, were
college age in 2001. Kathleen Peterson also had a college age
daughter, Caitlin. At 2:40 a.m., on December 9, 2001, Defendant
called 911. Ms. Allen, the 911 operator, later described Defendant
as hysterical. [Tr. 5463]. Defendant stated that his wife had
fallen down some steps and was unconscious. Only when questioned
was Defendant able to state that there were 15 or 20 steps, and
that his wife was still breathing. [Tr. 5458]. Allen immediately
put out a call for EMS to respond to an unconscious person. [Tr.
5459]. Tonya Pearce, another 911 operator, received a second call
from Defendant. Ms. Pearce needed to tell Defendant to calm down.
[Tr. 5469]. He asked if help was on the way and said that his wife
was not breathing. [Tr. 5465].
Sergeant Borden and Captain Dwight Pettiford, both of whom had
served as a spokesperson for the police department, responded to
the scene. [Tr. 5801-03] Borden testified that he knew that
Defendant had written a regular column for the Durham newspaper,
which was often critical of the Durham Police Department. [Tr.
5810] For example, Defendant wrote an article accusing the police
of having a rate of unsolved crimes of 96%, [Tr. 5813], stating
that the whole reporting system is rotten, and there’s a clear
attempt on the part of the police to cover up horrendous crime in
this town.@ [Tr. 5816]. Relations between the newspaper and the
police deteriorated to the point that the police would not speak
with the newspaper. [Tr. 5804]. In addition, the police were aware
that Defendant had run for mayor of Durham. [Tr. 5811].
Paramedics Ron Paige and James Rose were the first persons to
respond to Defendant=s home, followed by a fire engine crew. [Tr.
4898]. The front door was open, [Tr. 4879] and there were drops of
blood on the walkway leading to the house, and some smeared blood
on the door. [Tr. 4814, 4974]. Rose testified that it is not
uncommon for people who call 911 to be anxious about when help will
arrive, and to walk out to meet the paramedics as they arrive. [Tr.
After entering the house and looking down a hallway Paige and
Rose saw Defendant kneeling by his wife, apparently trying to help
her. [Tr. 4880]. Defendant was audibly sobbing, and had a dazed
stare.[Tr. 4769, 4775] Rose later wrote in his report that
Defendant was Obviously very, very upset.@ [Tr. 4831]. Later, when
Defendant was outside on a patio with his son, Defendant was too
upset to provide even basic information, such as his wife’s date of
birth. [Tr. 4833-35].
Defendant was wearing shorts and a shirt, and had blood on his
clothes. [Tr. 4790]. Kathleen Peterson was laying on her back on
the bottom of a flight of wooden stairs. There were towels under
her head, and shoes, socks and paper towels near her body. [Tr.
4777, 4978] Paramedics determined that there was no heart activity.
[Tr. 4778]. Members of a fire engine crew entered the house
shortly after the paramedics, including Captain Paschal. Captain
Paschal noted that Mrs. Peterson had a significant amount of blood
on the bottom of her feet, consistent with her standing in blood at
some point. [Tr. 4948]. Sergeant Borden, who arrived at the scene
that morning, testified that the blood on the waist of Mrs.
Peterson=s sweat pants was consistent with her sitting up at some
point after she began to bleed. [Tr. 5883].
There was significant blood on the stairs near Mrs. Peterson’s
body, some of which was smeared on the floor and walls. [Tr. 4777]
The paramedics and fire crew testified that the blood, including
the blood on Mrs. Peterson, appeared to be dry. [Tr. 4777; 4890-91;
4980] None of the first responders actually determined if the blood
was dry. In reports written shortly after the events, which
described the blood, the first responders failed to indicate that
the blood was dry. [Tr. 4824; 4902; 4960]. When Mrs. Peterson’s
body was subsequently moved, her clothes were saturated with blood
that was still dripping. Defendant=s clothes were sufficiently
damp that blood stains were transferred from his clothing when he
sat on a couch in the room near the stairs. [Tr. 6453, 6665].
Defendant’s son Todd enter the house shortly after the first
responders. [Tr. 4767]. Other civilians also entered the house and
went unescorted into the kitchen and patio area near where Mrs.
Peterson had been found. The lack of control over the scene
prompted Captain Paschal to tell the police officer at the front
door to not let unidentified people simply walk into the house.
[Tr. 4945]. Dan George later testified that he was met at the door
by an unidentified woman, rather than a police officer, and that
he was concerned about the lack of control over the scene. [Tr.
6700]. A woman who identified herself as a doctor entered and
walked around without monitoring. [Tr. 4909, 5498-99]1. Ben
Maynor, a friend of Todd Peterson, walked around the house, and was
later found to be impaired. [Tr. 5557]. Christina Tomasetti and
Heather Whitson, a medical resident and a friend of Todd
Peterson, was at the house. [Tr. P. 6148].
Heather Whitson, friends of Todd Peterson, were allowed into the
house, as were unidentified neighbors. [Tr. 5610-11].
Corporal McDowell of the Durham Police Department arrived at
the house at the same time as Officer Figueroa2, while the
paramedics were checking on Mrs. Peterson. Todd Peterson was
holding his father in the room adjoining where Mrs. Peterson was
found. [Tr. 5481-82]. Corporal McDowell later testified that even
when Sergeant Wilkins and Officer Kershaw arrived, around 3:30
a.m., there were not enough officers to secure the scene. [Tr.
Defendant and Todd were allowed to handle Mrs. Peterson, and
to move about the house and handle and move various items. For
example, Todd Peterson removed a cordless telephone that was laying
on the stairs near Mrs. Peterson=s body. [Tr. 4841]. An outline in
blood on the stairs corresponded to the shape of the telephone,
consistent with the telephone being removed from damp blood. [Tr.
4844]. Nobody monitored where the blood-stained phone was placed.
[Id.]. Defendant, wearing bloody clothes, and Todd Peterson, who
had physical contact with his father and Mrs. Peterson=s body, were
not monitored to determine where they went in the kitchen area.
[Tr. 4831]. Dan George observed one officer examining the bottom
of his shoes, as if he had stepped in something, but never
determined what had happened. [Tr. 6707].
Officer Figueroa did not testify.
After the police arrived, Defendant began to wash his hands
in a sink in the kitchen, in view of the officers, but stopped as
soon as he was requested to do so [Tr. 5580, 5607-08]. Defendant
was walking back and forth Aas if he didn=t know what to do,@ [Tr.
5608], and appeared confused. [Tr.5606]. Defendant, Ben Maynor and
Todd Peterson were told to go out onto a patio that adjoined the
kitchen. [Tr. 5608]. Defendant was weeping and pacing out on the
patio. [Tr. 6046]. Todd Peterson was then allowed to go into the
kitchen to get a drink and a glass. [Tr. 5501]. A Diet Coke can,
with a blood stain, was subsequently seized from a table on the
patio; DNA analysis identified Defendant’s DNA and Kathleen
Peterson=s blood. [Tr. 7478-79]. Blood stains were subsequently
found on the kitchen cabinets that contained glasses. [Tr. 5777].3
Dan George arrived at the house at 3:07 p.m. [Tr. 6417].
Defendant was out on the patio. While George was leaving the area
he saw Defendant come through the kitchen, where Officer Figueroa
was standing. Defendant was moaning and groaning and went over the
his wife’s body, and put his arms around her. [Tr. 6424]. Todd
Peterson tried to coax his father to let go of his wife, and had to
physically lift his father away from her body. At this time, there
was wet blood under Mrs. Peterson’s body, and her clothing was
still saturated with wet blood. [Tr. 6699-70] After Defendant was
These stains were never documented in any photographs.
[Tr. 5863]. Agent Deaver, who testified that he saw the stain
more than 12 hours after Defendant had left the residence,
described the blood as appearing Abright red@ and Afresh.@ [Tr.
forcibly removed from his wife=s body, he sat on a couch in the
kitchen, transferring blood to the couch. [Tr. 6665].
Defendant, Todd Peterson and Ben Maynor were asked to go sit
in a den area once it started to get chilly outside. [Tr. 5612].
Officer McCallop remained in the den to prevent the men from
talking with each other, and testified that Defendant eventually
sat at a computer in the den and checked e-mails and the internet.
[Tr. 6052]. McCallop was relieved by Officer Hester, who testified
that Defendant was visibly upset while in the den, and was writing
on a pad of paper. [Tr. 6085]. Defendant would moan, cry, hold his
hands to his head, and then walk around to compose himself. [Tr.
6088]. Defendant ultimately was asked to change his clothes, which
were placed on a window sill in the den. [Tr. 6054] Officer Hester
notified command that the clothes were on the window sill because
he believed that they should not be left there, but they were not
collected for four to five hours. [Tr. 6086-87]. Dr. Snell,
the medical examiner, arrived at the house at 7:40 a.m. [Tr. 7598].
Dr. Snell learned that there was a female who may have fallen down
some stairs, but that the officers were concerned by the amount of
blood. [Tr. 7595]. Dr. Snell examined Mrs. Peterson, noted a
number of lacerations and an avulsion, and discussed the blood
stains with one of the officers who indicated that they had been
trained, but not certified, in blood stain analysis. [Tr. 7597-98].
Dr. Snell informed George and Campen that there were three or
four visible injuries. [Tr. 6451, 7013] Dr. Snell was told that
the scene had been processed, [Tr. 7673] and walked up the
stairs, along with a technician and detective, to check for blood
stains other than on the bottom set of steps, but did not find any
further stains. [Tr. 7596, 7683]. Dr. Snell and four to five of
the officers then rolled Mrs. Peterson on to her side and examined
the lacerations on the back of her head. [Tr. 7597, 7675]. Dr.
Snell testified that he had blood on his gloves after examining
Mrs. Peterson, which was about five hours after Defendant called
911. [Tr. 7682]. Dr. Snell testified that he was concerned that
handling Mrs. Peterson at the scene might magnify her injuries.
[Tr. 7605, 7680-81] By the time Dr. Snell arrived at the scene,
someone had moved the blood saturated towels from under Mrs.
Peterson=s head to the stairs leading to the kitchen. [Tr. 7674-
With knowledge of the suspicions of the police, Dr. Snell
wrote in his report that A[i]t appears that she hit her head on
the step above the corner and then hit the floor in the corner of
the stairs@ and that A[b]lood spatter appears to support the
scenario.@ [Tr. 7631]. Dr. Snell also told the officers that,
Dr. Snell testified that Defendant would likely have his wifes hair in his hands if
he had handled her in a way that might have affected her injuries. Dr. Snell was unaware
before trial that Defendant had been pulled from the body and that the Diet Coke can,
from which Defendant drank, had Mrs. Petersons hair on its surface, indicating that
Defendant indeed did have his wifes hair on his hands after handling her body. [Tr.
although it appeared to have been a fall, they should look for
some type of instrument that may have caused the lacerations.
The next day Assistant Commander Connie Bullock called Dr.
Snell. Bullock was aware that Dr. Snell had indicated that the
death was possibly due to a fall down the stairs; Bullock told
Snell what the police believed happened, and Dr. Snell then said
that the death might be due to something other than a fall. [Tr.
6269-71]. Dr. Snell later attended portions of the autopsy, but
did not perform the autopsy. After Defendant had been indicted,
Dr. Snell wrote an addendum to his report indicating that the death
was consistent with a beating, rather than a fall. [Tr. 7634-35].
C. Search and Processing of Defendant=s Home
The police ultimately obtained two search warrants to search
Defendant=s residence5. The first warrant was based upon the
following showing of probable cause to believe a crime had been
This applicant has been a law enforcement officer for
more than 19 years. I am currently assigned to the
Homicide Unit of the Criminal Investigation Division of
the Durham Police Department. I have been an
Investigator with the Durham Police Department since
1989. During this time I have been assigned to conduct
follow-up investigations of Child Sexual Abuse, Adult
Rape, Aggravated Assault and Homicide.
On December 9, 2001, 0309 hrs., I, Inv. A.H. Holland Jr.,
Other search warrants were obtained, such as a warrant to seize items from Mrs.
Petersons body, which are not at issue in this appeal.
was paged by On-Call CID Supervisor Sgt. Fran Borden in
reference to a Death Investigation at 1810 Cedar St.
Sgt. Borden advised that the victim, age 47, fell down a
flight of stairs and there was a large amount of blood
present at the scene. At 0359 hrs., this investigator
arrived at 1810 Cedar St. Prior to entering the front
door, I observed blood on the sidewalk that leads to the
front door. Upon entering the front door, I observed
blood on the inside of the door. Sgt. Terry Wilkins
advised that the victim=s husband had blood all over his
person. I saw the victim as a distance, but did not
approach. At this point, this investigator made the
decision to obtain this Search Warrant.
[R.p. 29]. Based upon this showing, the warrant authorized
officers to search for and seize the following property:
Fingerprints, bloodstains, fired and unfired bullets and
casings, any and all other weapons, footwear impressions,
trace hair and clothing fibers, physical layout of the
premises, measurements of the premises, moving pictures,
video, and still pictures to preserve the nature of the
crime scene; documentary evidence indicating ownership,
possession and control of the premises; and any and all
evidence that may relate to the Death Investigation.
[Id.]. Sgt. Paschall later testified that the search warrant
imposed no limits on what the police could search for. [Tr. 5975].
After this search warrant was obtained, investigators walked
through the house looking for any instrument that could have been
used to inflict the injuries. [Tr. 5945]. Later that day George
and Campen began processing the house, with ID technician Angie
Powell taking photographs. [Tr. 6445].6 The scene was initially
videotaped and photographed. According to George, Dr. Snell was
Powell was new and was assigned by Campen to photograph the scene as part
of her training. [Tr. 7002]. Significant items, such as blood stains near kitchen cabinets,
were not photographed, [Tr 10143], and obvious differences between photographs of the
same areas were claimed to be glitches in the photographs. [Tr. 6827].
brought to the scene before any further processing took place. [Tr.
6448-49]. At the time Dr. Snell examined Mrs. Peterson, her sweat
pants were still dripping blood. [Tr. 6465-66]. After Dr. Snell
examined Mrs. Peterson, her body was removed from the scene. [Tr.
George then collected Defendant=s clothing from the window
sill for, and Todd Peterson=s clothing, which he had been wearing.
[Tr. 6459]. George put all of Defendant=s clothes into a single
paper bag to be transported to the police station for drying,
although blood on the clothes was moist. [Tr. 6468]. Todd
Peterson=s clothing was similarly packaged. [Tr. 6469] George
testified that this was not proper collection procedure. [Tr 6888-
89] The stains on the clothing were not documented before the
clothing was folded and placed in a single bag. The S.B.I.
initially refused to process the clothing because the stains were
transfer stains. [Tr. 6897].
Campen requested assistance in blood stain interpretation from
the S.B.I. Agent Deaver arrived at the house around 5 p.m.. By
the time Deaver arrived, approximately ten police officers had been
in and out of the house. [Tr. 6028-29]. After reviewing
photographs that had been taken and processed, Deaver began
examining the blood stains in the staircase. During a break in his
work, Deaver and Campen went into the kitchen area and smelled an
odor of alcohol in the sink. [Tr. 7028]. Campen was able to lift a
fingerprint, later identified as Defendant=s, from one of two wine
glasses near the sink glasses. [Tr. 7029, 7388]. Deaver then
processed a wine bottle that was on the counter for the presence of
blood by rubbing a filter paper a over the surface. There was no
blood on the bottle. [Tr. 7029]. Agent Deaver then recognized that
processing the wine bottle in the manner removed any finger prints
and was a mistake. [Tr. 7097]. Campen also processed the Diet Coke
can that was found on the patio, and removed several hairs
consistent with Mrs. Peterson from the can. [Tr.7033, 7497-98].
Partial fingerprints in the blood stains near Mrs. Peterson=s body
could not be identified. [Tr. 7113; 7396].
Campen performed luminol testing at the top of the stairs, and
near where Mrs. Peterson=s body was found. The luminol testing at
the top of the stairs revealed some reactions near the top landing.
[Tr. 7026]. This was the location of the linen closet, and the
area where Dr. Snell and the others had previously walked. In
addition, during the evening of December 10, George and Campen
performed luminol testing on the floor of the kitchen and adjoining
rooms, including the laundry room. The luminol testing was done
after the police had been in the house for 36 hours. [Tr. 6744].
No attempt was made to photograph the luminol, although the police
could take such photographs. [Tr. 6525-26]. No contemporaneous
diagram was made of the location of the reactions. The officers
claimed that they saw bare foot prints in the kitchen, leading to
the laundry room and then back into the kitchen and stopping in the
kitchen, going by the refrigerator and a sink in the kitchen. [Tr.
6529] George described what he saw as being similar to Aa rabbit
path@ once the luminol was sprayed away from Mrs. Peterson=s body.
[Tr. 6717]. George explained that it was just Atrack over track@
and that AI just couldn=t distinguish it because there had been too
much walking.@ [Tr. 6716]. No blood was found in the sink in the
laundry room, or in the washing machine nor on a mop and bucket
that were examined. [Tr. 7458] This room also served as a storage
room for soft drinks and wine. [Tr. 6697].
On December 10th, the police conducted an extensive search of
the interior and exterior of the house. The search was preceded by
a briefing in which the officers were asked what they believed
made a stain depicted in a photograph. [Tr. 5957]. Officer Hall
testified that he believed that the stain showed an instrument with
a long handle and was made by a tire tool or fireplace tool. [Tr.
6106]. Hall had not been told that the photograph in fact
depicted a stain that was about an inch long. [Tr. 6121].
Approximately 30 officers, in five search teams, searched
outside the house. A group of homicide investigators were assigned
to search the interior of the house. [Tr. 5958, 5967]. No weapon
was found, nor any indication that someone with blood on them left
the property, walked out of the house, or down into the basement.
During the search of the house on December 10, numerous items
were seized that were placed into evidence. These items included
blood and hairs that were collected from the bottom steps of the
stairs, [Tr. 6505; 6595-6603]7, socks and tennis shoes found near
Mrs. Peterson, [Tr. 6561]; a watch collected from Defendant [Tr.
6564]; wine glasses and bottles from the kitchen [Tr. 6577- 78];
paperwork collected from Defendant=s den [Tr. 6581]; and a blood
swabbing from the kitchen cabinet [Tr. 6594]. Despite the
extensive processing of the scene, numerous significant items were
not seized. These included the cordless telephone that had been
removed from the stairway by Todd Peterson, eye glasses that were
on the stairs, sandals that Mrs. Peterson had been wearing, which
were found next to her body, the towels that had been under her
head, and keys that were in the door through which the police
entered the house. [Tr. 6487, 6496,] George testified that he did
not collect the eyeglasses because there were no stains on them.
[Tr. 6496].8 Sergeant Paschall testified that the keys and glasses
should have been seized, [Tr. 6013], while George admitted that the
telephone should have been collected. [Tr. 6501]
Agent Gregory testified that hairs found in Mrs. Petersons hands were consistent
with Mrs. Petersons own hair [Tr. 7498]as were hairs found on the steps. Some of the
hairs appeared broken. [Tr. 7499]. Gregory testified that a blow poke, or hitting a stair,
could cause that damage. [Tr. 7502]. Gregory did not note any charcoal residue, such
as might be left by a fire place tool. [Tr. 7520]. Gregory testified that a hair hit with a
rounded edge would more likely be crushed than cut. [Tr. 7518].
The absence of stains suggests that the wearer of the glasses was not involved in
a vicious beating.
After releasing the house to Defendant, the police obtained
another warrant on December 12, 2001, authorizing them to return
and seize further items, in particular computers. The application
contained the same description of Detective Holland=s experience as
the prior warrant. The entire remaining showing in support of this
search warrant was as follows:
On December 9, 2001, 0309 hrs., Inv A.H. Holland Jr., was
paged by on-call Supervisor Sgt. Fran Borden in reference
to a Death Investigation at 1810 Cedar St. Sgt. Borden
advised that the victim, age 47, fell down a flight of
stairs and there was a large amount of blood present at
the scene. At 0359 hrs., this investigator arrived at
1810 Cedar St. Prior to entering the front door, I
observed blood on the sidewalk that leads to the font
door. Upon entering the front door, I observed blood on
the inside of the door. Sgt. Terry Wilkins advised that
the victim=s husband had blood all over his person. I
saw the victim at a distance, but did not approach.
After 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 residence.
Based on the factual information in this affidavit,
applicant prays that a search warrant be issued.
Based upon that affidavit, the search warrant authorized the
seizure of the same items as were listed in the prior search
warrant, and added:@[e]vidence to be seized shall include
computers, CPU=s, files, software, accessories, and any and all
other evidence that may be associated with this investigation.@
[R.p. 43]. Officers seized two computers from the second floor of
the house and a computer from Defendant=s study. [Tr. 6605]. The
computers were later searched by a private firm, CompuSleuth,
hired by the State, with no further authorization for this
procedure sought by the State. [Tr. 7769] During the trial, the
State introduced evidence regarding e-mails, images and web-sites
that were visited as a result of the search of the computer taken
from Defendant=s study. [Tr. 7853 et seq.]
Prior to trial, Defendant moved to suppress the evidence
seized pursuant to these search warrants. [R.p. 6, 47]. The
court denied the motion to suppress, [R.p.56], overruled
Defendant=s continuing objection to the introduction of the
fruits of the searches at trial, [Tr. 6464], and overruled
Defendant=s renewed motion to suppress when it appeared that
the computer hard drives had been subject to a further search
by CompuSleuth. [Tr. 7762-63]. D. Evidence Regarding
Activities of December 8, 2001
Kathleen Peterson was an executive at Nortel Networks in
Research Triangle Park. Helen Prislinger, who worked for Nortel
in Canada, reported to Mrs. Peterson. [Tr. 5200]. Ms. Prislinger
was aware that Mrs. Peterson was planning on traveling to Canada
for a meeting on December 10, 2001, and was going to make some time
to meet with Ms. Prislinger. Ms. Prislinger spoke with Mrs.
Peterson on Friday, December 7, and Saturday evening, December 8.
[Tr. 5206]. Ms. Prislinger then left a message with Mrs. Peterson
on Saturday evening about a planned conference call for the next
day. Mrs. Peterson called back at around 11:00 p.m. [Tr. 5207].
When Ms. Prislinger needed an e-mail address for Mrs. Peterson,
Mrs. Peterson asked Defendant for his address and relayed the
information to Ms. Prislinger. [Tr. 5210]. During this
conversation, Mrs. Peterson sounded normal; there was no indication
that she was under stress or fighting with anyone [Id.; Tr. 5214].
Ms. Prislinger then sent an e-mail to this address, with
attachments for Mrs. Peterson=s review. [Tr. 5211]. The witness
who examined the computer testified that the attachment had not
been opened, and that it was very likely that Mrs. Peterson did not
read the e-mail. [Tr. 7961]
Mrs. Peterson did not work on Friday, but spent time working
on Saturday. Donald Hepp, supervised by Mrs. Peterson, testified
that she was working during Saturday afternoon, and came by and
spoke with him before leaving the office. Mrs. Peterson discussed
Christmas shopping, and asked for directions to a local shopping
mall. [Tr. 5448]. The conversation was pleasant, and involved
joking about how much shopping they had left to do. [Tr. 5452].
The defense presented the statement of Christina Tomasetti to
the police regarding her contact with Defendant and his wife that
night. Ms. Tomasetti informed the police that she came by the
residence Saturday night to get Todd, and that Defendant and his
wife were drinking wine and watching a movie. When she and Todd
left for a party at 10:20 p.m., Defendant and his wife were in good
spirits. She drove Todd home and arrived just as the first
responders were entering the house. [Tr. 11585-87].
E. Evidence Regarding Financial Condition and Job Status
The State sought to present extensive evidence regarding the
Petersons= financial status in 2001, and Mrs. Peterson=s job status
at Nortel. Defendant filed a motion in limine to preclude the
introduction of this evidence as any claim that Defendant murdered
his wife for financial reasons was nothing more than speculation,
and as the evidence was not relevant to showing Defendant=s state
of mind. [R.p. 190]. The court denied Defendant=s motion. [Tr.
4635-4648]. Over Defendant=s objection, the court allowed the
State to introduce extensive evidence about the atmosphere at
Nortel in general, Mrs. Peterson=s job status specifically, and
about the general finances of the Petersons.9
Prislinger and Hepp, testified over objection to the general
down-sizing at Nortel, and their own feelings about the security of
their jobs. [Tr. 5202-06; 5436-46]. In addition, over objection,
the State presented testimony through Kim Barker that Mrs. Peterson
had briefly been put on an Aoptimization list,@ which was a
euphemism for a list of those who were being considered for lay
offs. [Tr. 5122]. Although Ms. Barker, who worked in human
resources, was aware that Mrs. Peterson was on the list for three
days in November, and then removed, [Tr. 5123-24] , Nortel had a
policy of keeping the list confidential. [Tr. 5125]. Ms. Barker
had expressed the opinion that there was absolutely no way that
Defendant was granted a continuing objection as the witnesses to these issues
were called, [Tr. 5021; 5117] as well as raising specific objections to specific areas of
evidence. See, i.e., [Tr. 5122-125].
Mrs. Peterson would have known she had ever been on the list. [Tr.
5127]. No evidence was presented that either Mrs. Peterson or
Defendant were ever aware of her short tenure on this list.
Katherine Kayser, also employed at human resources at Nortel,
testified concerning Mrs. Peterson=s career and benefits while
working at Nortel. In 2001, Mrs. Peterson was earning $145,000 a
year. [Tr. 5025]. Ms. Kayser detailed Mrs. Peterson=s stock
options. [Tr. 5026-5033]. Mrs. Peterson also had a 401(k) plan, a
pension plan, a deferred compensation plan and life insurance
through her job. [Tr. 5036]. Upon Mrs. Peterson=s death, Defendant
received net payments of approximately $29,000 from the 401(k)
plan, $94,455 from the pension plan. [Tr. 5040, 5053]. In
addition, Mrs. Peterson deferred 80% of her earnings for 2000 and
2001, which she lowered to 10% at the end of 2001, thereby
deferring tax liability. By the time of her death Mrs. Peterson
had deferred $223,000 in income. [Tr. 5051] Mrs. Peterson was
also covered by life insurance, which paid a total of $1,450,000.
[Tr. 5058] Defendant was the beneficiary of these benefits.
Mrs. Peterson was initially hired by Nortel as a technical
writer, making $33,000 a year. [Tr. 5065]. Mrs. Peterson
consistently received raises, and in 2001 - while Nortel was going
through tough economic times - received a $10,000 success bonus.
[Tr. 5074]. On cross-examination, Mrs. Kayser explained that it
was not unusual for the spouse to be designated as the beneficiary,
and in fact federal law requires that the spouse be the beneficiary
unless the spouse waives their rights. [Tr. 5092]. In addition,
taxes were paid on the 401(k) and pension plan payments, and were
due on the deferred compensation [Tr. 5093]. Mrs. Peterson
exercised only a small number of stock options, although she was
free to exercise the options when they were profitable had she
needed or wanted the money. [Tr. 5084, 5092]. While the stock
dropped from a high of approximately $80 a share in September of
2000, closing at $5.85 a share on November 1, 2001, it increased
by roughly 50% to $8.84 by December 7, 2001. [Tr. 5082].
Had Mrs. Peterson been terminated, she would have been
entitled to approximately $75,000 in severance, and would have been
able to withdraw her accumulated deferred compensation over a five
year period. [Tr. 5103]. Mrs. Peterson could also access her
401(k) and pension plan money if need be. [Tr. 5100]. Upon Mrs.
Peterson=s death, Defendant and the three girls all lost their
health insurance benefits. [Tr. 5094].
The State also was allowed to present over objection the
testimony of S.B.I. Agent Young, who testified as a summary witness
about various financial records regarding the Petersons.[Tr. 5150].
Young based his summary on records he obtained, such as bank
records, real estate records and records from Nortel. Over
objection, Agent Young was also allowed to rely on an Equifax
credit report. [Tr. 5237-39]. Agent Young summarized what he
claimed were the values of various assets held by the Petersons,
either individually or jointly, reviewed their credit history and
analyzed what he viewed as income and expenditures.
Agent Young was first asked to perform the financial analysis
in April, 2003, shortly before jury selection began. According to
Young, the weekend that Mrs. Peterson died, their joint net worth
was approximately $1,500,000. [Tr. 5286]. This figure did not
include the remaining $49,000 in Mrs. Peterson=s stock options,
nor did it include the value of automobiles, art or antiques. [Tr.
5289-91]. Although the Petersons owned substantial real estate,
Young relied upon tax values rather than the appraisals that
Defendant had furnished to the State, although those had been
provided to Young. [Tr. 5369-71]. Using the appraised values
increased the net worth of the Petersons to over $2,000,000. [Tr.
Young testified that the amount of Anormal income@ that went
into the Peterson=s accounts for 1999, 2000 and 2001, was exceeded
by the amount of money that they spent. [Tr, 5244]. For example,
in 1999, $276,790 went in, while $461,400 went out. [Tr. 5241-42].
Young conceded that the negative figures for 2000 and 2001 were
more than offset by the amount of deferred income that Kathleen
Peterson had accumulated . [Tr. 5367]. Young admitted that he
excluded from his definition of normal income the value of stock
options exercised by Mrs. Peterson, although these options were
compensation for Mrs. Peterson=s work, and treated as taxable
income. [Tr. 5307]. Similarly, Agent Young included the $5,000
cost of stock purchased by Defendant in 1999 as an expenditure, but
excluded the proceeds from the sale of that stock for $11,000 from
income. [Tr. 5307-08]. Agent Young also testified that he included
all outgoing payments, including a repayment of a $35,000 loan,
[Tr. 5312], charitable contributions, and college expenses the
girls. Young conceded that there was nothing unusual about using
assets or savings to pay for college. [Tr. 5312] Although Young
knew that Defendant was a published author, he did not investigate
Defendant=s earnings prior to 1999, and claimed to be unaware that
Defendant earned over $1,000,000 for his first two book contracts.
Young testified that, based upon an Equifax report, as of the
time of Mrs. Peterson=s death, the couple jointly had $142,000 in
credit card and installment debt. [Tr. 5259]. Although Young was
aware that this was a reduction in the amount of installment and
credit card debt from the previous year, he did not disclose this
until questioned on cross-examination. [Tr. 5327]. In early 2001,
when the debt was higher, Kathleen Peterson could have realized
over $700,000 in income from exercising her stock options. [Tr.
5335]. Instead, the Petersons refinanced their main residence, at
a lower interest rate, that allowed them to borrow money while
reducing their monthly payments. [Tr. 5339]. Young conceded that
there was no evidence that the Petersons did not pay their bills on
time.10 [Tr. 5322]
The State also presented e-mails, seized during the search of the computer, in
which Defendant discusses with his first wife his sons credit card debt, [Tr. 7865], asks
Marthas Uncle to assist with her college tuition, [Tr. 7858], and discusses the stress for
his wife of working at Nortel. [Tr. 7856]. Candace Zamperini was also allowed to
recount statements by Mrs. Peterson in the Spring and Fall of 2001 regarding the stress at
Nortel and the falling stock prices, and the cost of various repairs to the house. [Tr.
Finally, the State presented the testimony of John Huggard,
who teaches finance and law at North Carolina State University in
the Department of Business Management, who reviewed with the jury
the law governing intestate succession, as Kathleen Peterson died
without a will. [Tr. 6302 et seq].
F. Evidence Regarding The AMissing@ Blow Poke
The police never found any instrument that they contended was
the actual murder weapon. Undeterred by the absence of a weapon,
the State proceeded on the theory that Defendant beat his wife to
death with a fire place instrument with a hollow handle known as a
blow poke. This theory was based on evidence that Kathleen
Peterson=s sister, Candace Zamperini, had given Mrs. Peterson, and
other family members, blow pokes as presents. [Tr. 10539]. Ms.
Zamperini testified that she had seen the blow poke at the Cedar
Street residence when she visited in 1999, but had not been in the
house since that time. [Tr. 10541; 10549].11 Officers testified
that they did not see an instrument such as the blow poke in the
house when they searched following Mrs. Peterson=s death. The
State contended, in its opening statement, that the blow poke was
Amysteriously@ gone when the police arrived on December 9th, 2001.
[Tr. 4687]. In fact, a number of photographs taken in the house
before Mrs. Peterson=s death showed the fireplace, and did not show
the blow poke. Claude Anderson, who did clean up work inside and
Lori Campbell, another sister, testified that she saw the blow poke in July, 2001.
outside the house, testified that he had not seen the blow poke in
the house during the time he worked there. [Tr. 12192]. During the
trial, John Rosenthal, a photographer, photographed a blow poke
covered in cob webs and dead insects in the back of a darkened
garage area. [Tr. 12296]. Subsequently it was confirmed that this
blow poke was identical to the blow pokes given by Ms. Zamperini to
other family members. [Tr. 12896] Dr. James McElhaney, a profession
of biomechanical engineering at Duke University called by the
State, testified that the force to inflict the injuries on Mrs.
Peterson would have permanently bent the blow poke. [Tr. 12468].
The blow poke was not damaged. The State subsequently argued that
they did not have to prove that the blow poke was used. [Tr. 13243]
G. Expert Testimony Regarding Blood Stains and Forensic Pathology
I. Blood Stain Evidence
The State relied heavily upon Agent Deaver, who testified to
his opinions of the significance of the blood stains found in and
around the stairway, and found on clothing and shoes. By the time
Deaver viewed the stairway, Dr. Snell had walked up and down the
stairs, Ms. Powell had been in the stairway to take photographs,
Defendant and his son had been in physical contact with Mrs.
Peterson=s body, and the EMT=s had removed the body, which was
still saturated with dripping blood. Deaver based his opinions on
his experience, measurements and calculations that he did at the
scene, and a series of tests that he performed, and which were
Deaver testified that there that several small stains on the
header opposite the stairs were somehow related to stains found on
stair 1512. Deaver testified that, in his opinion, these stains
were cast off of some instrument being swung from outside the
stairway through the door into the stairway. [Tr. 8744-45].
Deaver stated that he looked for strike marks on the walls, which
would be consistent with a weapon being swung in that area, and
found none. [Tr.8747]. On cross-examination, Agent admitted that
his initial report did not indicate that he believed that the
stains were cast-off, and that he did not come to this conclusion
until long after he viewed the scene. [Tr. 8882-83]. Deaver
conceded that there was no cast-off on the ceiling above where he
contended Mrs. Peterson was struck.[Tr. 8942-43]
Deaver testified that blood stains on step 16 were consistent
with Mrs. Peterson=s head striking the surface of the stair, which
he could determine was not the result of an accidental fall. [Tr.
8754]. According to Deaver, the surface of step 17 had been
cleaned, but remaining blood stains on the riser were evidence of
an impact. [Tr. 8756]. The steps at the top of the stairs had
stains that reflected that someone walked to the top of the stairs
after having blood on their feet. [Tr. 8758]. Deaver had not been
aware that Dr. Snell and others had walked up and down the stairs
during the early morning hours. [Tr. 10147]
During the trial the stairs were identified by number, with the top stair being stair
1 and the bottom stair being stair 18.
Deaver explained that he selected specific blood stains on the
north and east walls at the bottom of the staircase and the west
wall running along the stairs , and using strings and estimating
angles, identified precise points of origin that were away from
the floor and walls, and from this determined that blows had been
struck while Mrs. Peterson=s head was located in these positions.
[Tr. 8635-37, 8736]. On cross-examination, Deaver conceded that
there is an element of subjectivity to determining a point of
origin from blood stains, such as selecting and measuring the
stains used for the analysis. [Tr. 9275-80]. Deaver also testified
that actions other than a blow can cause cast-off and blood
spatter, such as a moving hand, finger or hair. [Tr. 9002]. Impact
spatter can be created from any object, such as a moving head or
even other blood falling into blood. [Tr. 9003-04].
Deaver also identified an void area on the north wall, where
there was no blood, and testified that this area had been cleaned,
based on run marks from a liquid at the bottom of the void. [Tr.
8742-43]. Deaver conceded on cross-examination that his original
notes from the scene did not indicate that there was a clean up on
this wall, but rather was a shadow , or an area in which an object
had blocked the blood stains. [Tr. 9088-89].
Deaver agreed that the blood stains on Mrs. Peterson=s feet
Deaver also conceded that he made the observations about run marks when he
returned to the scene in June, 2002, and that it was obvious that liquid had been applied
to that wall since December 9. [Tr. 9091-93].
indicated that she stood up after she began to bleed. [Tr. 8748].
Stains on the doorway leading into the stairs and near the floor,
showed hair transfer that was consistent with Mrs. Peterson=s head
coming into contact with the door jamb. The stains also were
consistent with Mrs. Peterson=s hands coming into contact with this
area. [Tr. 8318, 8750].
Deaver also examined the clothing taken from Defendant, his
son Todd, and Mrs. Peterson. Deaver testified that sneakers, found
near Mrs. Peterson=s body, had stains that indicated that blood had
come from a source above the shoes. [Tr. 8761].14 Defendant=s
shorts had stains that Deaver testified were the result of impact
spatter, and then the application of water to the front of the
shorts.15 [Tr. 8759-60]. Deaver testified that Defendant=s shirt=s
color was too dark for visual examination of any stains. [Tr.
8375]. During cross-examination, the defense was for the first
time provided a report revealing that Deaver used alternative light
Deaver testified that he stomped in a small amount of blood to determine that
these stains could not come from someone wearing the shoes and walking on blood [Tr.
8661]. The tests did not take into account someone stepping on blood on surfaces of
different heights, such as the stairs. [Tr. 9031] In addition, Deaver had not been aware
that the shoes were near Mrs. Petersons body when it was moved from the scene, while
still dripping blood. [Tr. 9026]
Agent Bendure, who examined the shorts, testified that several small stains found
several centimeters from the hem of the shorts were cause by blood coming into contact
with the inside of the shorts. [Tr. 8105], meaning that the leg of the shorts was open at
the time the blood was deposited. [Tr. 8123 ].
sources to examine Defendant=s shirt and found no blood spatter.
[Tr. 8990]. On Mrs. Peterson=s pants, Deaver identified heavy
staining from the waist down, some blood spatters [Tr. 8377], and
on the back there was a transfer stain with a pattern. [Tr. 8380].
Agent Petzka testified that this stain matched the sole of a shoe
found near Mrs. Peterson=s body, and that the stain was made
without there being any movement between the pants and the shoe.
[Tr. 7417-18]. Mrs. Peterson=s top had significant soaking stains,
from the bleeding on her scalp. [Tr. 8381]. Todd Peterson=s shirt
had transfer blood stains. [Tr. 8382]. Similarly, Todd Peterson=s
pants had blood stains, including a good sized blood drop on the
bottom of the leg. [Tr. 8384].
On cross-examination, Deaver testified that he had not
attempted to control for all relevant variables in conducting his
tests, [Tr. 8907], and that he did not test alternative theories
for what may have caused the stains, but rather designed tests to
confirm his theories. [Tr. 8965]. The testing included tests done
in a mock-up of the bottom of the stair way, built to scale, in
which Deaver inflicted numerous blows to a blood source in an
attempt to recreate the stains found at the scene. Even after 38
impacts - more than could possibly have been inflicted on Mrs.
Peterson - there were significant differences in the amount of
stains present in the test site and those present in the real
stairs. [Tr. 9877-79]. Deaver=s socks, worn during the tests,
contained blood spatter, while socks found at the scene did not.
[Tr. 9046]. In addition, Deaver did not attempt to determine if
the stains at the scene could have been produced by cast-off from
hair, hands or fingers. [Tr. 8996-98].
The defense disputed both the reliability of the evidence used
by Deaver and the opinions that he reached, and called witnesses to
testify that the scene was managed and documented inappropriately,
and that the stains were consistent with injuries inflicted in a
fall rather than a beating. Major Timothy Palmbach, of the
Connecticut Department of Public Safety, Division of Scientific
Services, testified that the manner in which the scene was
controlled and documented adversely affected the significance of
the evidence found at the scene. According to Major Palmbach,
allowing Defendant or others to go into the stairway, or to handle
Mrs. Peterson=s body, posed a Asubstantial problem,@ as it could
alter the stains that were in existence. [Tr. 11490-91]. For
example, physically removing Defendant from his wife=s body may
have resulted in cast off of the small drops of blood found on the
header across from the stairs. [Tr. 11491]. Similarly, allowing
Defendant and family and friends to walk around the kitchen could
impact subsequent luminol analysis. [Tr. 11496-98]. Allowing Dr.
Snell to walk up and down the stairs, while there was still damp
blood in the area, could affect the scene. [Tr. 11504].
Dr. Henry Lee, a forensic scientist who teaches at the
University of New Haven, who had previously served as the
Commissioner for the Connecticut State Police, and as chief
criminalist for the State of Connecticut, also testified for the
defense. [Tr. 11619-11623]. Dr. Lee had authored or co-authored
approximately 30 books, and testified in almost 1,000 cases,
principally for the prosecution. [Tr. 11625-27]. Dr. Lee had been
to the hundreds of beating scenes. [Tr. 11624].
Dr. Lee had been to the scene, examined the photographs taken
by the State, and the clothing taken from Defendant, Mrs. Peterson
and Todd Peterson, and spent several hours at the laboratory where
Deaver performed his experiments. [Tr. 11646]. Dr. Lee testified
that that scene was not consistent with a beating death. [Tr.
11648]. Dr. Lee explained that the medium velocity blood spatter
at the scene was not necessarily caused by blows; such spatter can
be caused by a variety of actions, such as a head hitting a wall,
hands hitting together, and even coughing blood. [Tr. 11631]
Dr. Lee explained that there was over 10,000 blood drops at
the scene, going in numerous different directions, which was not
consistent with a typical beating. [Tr. 11643]. Dr. Lee explained
that a point of origin - more properly viewed as an area of origin
- simply indicates the area from which blood originated, but does
not indicate that a beating took place, as the stains could have
been caused by someone in that area coughing. [Tr. 11696]. The
variety of stains, and directions, indicated to Dr. Lee that the
stains could not be from a beating, but were from multiple sources,
such as coughing, someone shaking their head and moving around
inside the stairs. [Tr. 11706]. Blood at the scene bore evidence
of being aspirated blood. [Tr. 11713]. Dr. Lee saw evidence of
blood in Mrs. Peterson=s mouth from the scene photographs. [Tr.
As to the stains on the header, used by Deaver as a basis for
finding cast-off, Dr. Lee testified that the stains in fact were
traveling in different directions. [Tr. 11697]. Dr. Lee testified
that these stains could come from someone=s hand or finger moving.
[Tr. 11699]. The void area identified by Agent Deaver was not
evidence of a clean-up, but rather evidence that blood drops were
blocked by something at the time they were created. [Tr. 11721].
The stains on Defendant=s shorts, according to Dr. Lee, were
not evidence that Defendant had been present during a beating. The
area of dilution was consistent with contact with a wet towel, such
as the towels placed under Mrs. Peterson=s head, and the stains on
the inside of the pant leg could not be ascribed to a beating. [Tr.
Dr. Radisch performed the autopsy of Mrs. Peterson. The most
significant injuries were a number of lacerations on the back of
Mrs. Peterson=s head. Some of the lacerations went through to the
skull, and were associated with a large amount of bleeding into the
Dr. Leestma testified for the defense that he found blood in slides taken from
Mrs. Petersons lungs. [Tr. 11180 et seq]. Dr. Radisch disputed whether the blood in
Mrs. Petersons lungs could account for her coughing blood. [10746-47]
scalp. [Tr. 10710]. There were two tri-pronged lacerations, one of
which had an avulsion or flap of skin that was disconnected from
the skull. Near the base of the skull were two horizontal
lacerations. [Tr. 10711]. There were two additional vertical
lacerations, with elements of avulsion. [Tr. 10712]. Areas of
bruising associated with the lacerations did not reveal a pattern
consistent with a weapon. [Tr. 10729]. Significantly, there was no
skull fracture. [Tr. 10732]. Dr. Radisch testified that the
injuries could have been inflicted with an instrument such as the
blow-poke. [Tr. 10749].
There was a small amount of subarachnoid hemorrhage. In
addition, there was a fracture of the superior horn of the left
thyroid cartilage. [Tr. 10735]. Dr. Radisch testified that
bleeding at the injury site indicated that the injury occurred
prior to death. Similar bleeding at the spine, however, was
attributed to post-mortem artifact. [Tr. 10738]. According to Dr.
Radisch, the injury to the thyroid was the result of direct trauma,
such as in a case of attempted strangulation. [Tr. 10748].
However, none of the other indicia of strangulation, such as
petechia or internal bruising and hemmorrhaging, were present. [Tr.
10925-26]. Dr Radisch agreed that well respected pathologists
would never find evidence of strangulation solely on the basis of
this injury. [Tr. 10931].
Testing revealed a blood alcohol content equivalent to blowing
a .07 on a breathalayzer, and Diazepam levels equal to ingesting
between 5 and 15 milligrams of Valium shortly before the time of
death, [Tr. 10739], which is a significant dose of Valium, and can
have a synergistic effect on alcohol. [Tr. 10872].
Dr. Radisch also described bruising over the right eye lid,
[Tr. 10708], near the ear lobe, and abrasions near the left
eyebrow. [Tr. 10709]. A small area of abrasion was over the nose,
and some bruising on the tip of the nose. [Id.]. An abrasion was
over the lip, below one eye and on the right side of the neck. [Tr.
10710]. There was also a contusion on Mrs. Peterson=s back, which
was a post-mortem injury caused by leaning against the edge of
step. [Tr. 10714]. There were contusions around the elbows, and
abrasions and bruising on the hands. [Tr. 10715]. The injuries to
areas other than head were consistent with efforts to ward off
blows. [Tr. 10742]. Dr. Radisch testified that the cause of death
was non-accidental blunt force trauma. [ Tr. 10741]
On cross-examination, Dr. Radisch testified that she would not
be surprised by the fact that more people die by falling down
stairs than by beatings, [Tr. 10837], and that a single fall can
cause more than one impact, such as a fall in which several
surfaces are struck. [Tr. 10842]. Dr. Radisch reviewed reports in
19 other beating cases in which she performed the autopsy, and
agreed that in all cases was fractured skulls and facial bones or
traumatic brain injury beyond the subarachnoid hemorrhage in Mrs.
Peterson=s case. Dr. Radisch agreed that the injury to the brain
were not inconsistent with a fall, and that no single laceration
was such that she could testify that is was not caused by a fall.
[Tr. 10938, 10943]. The blood loss was a significant factor in the
cause of death, and Dr. Radisch believed that there might also be
diffuse axonal injury that could not be seen microscopically. [Tr.
Dr. Thomas Bouldin, a professor at the School of Medicine at
the University of North Carolina, reviewed Mrs. Peterson=s brain
following the general autopsy. Dr. Bouldin testified that he found
a small to moderate amount of hemorrhage in the surface of the
brain. [Tr. 10511]. Such a hemorrhage does not indicate whether
the person fell on the stairs, and is not life threatening. [Tr.
10524-25]. Dr. Bouldin also found some neurons that had showed
discoloration when stained, which are usually caused by a period of
decreased blood flow to the brain, such as from significant
bleeding. Dr. Bouldin had seen them develop within two hours of a
documented loss of blood flow. [Tr. 10513-14]. Dr. Bouldin did not
find a cause of death within the brain itself. [Tr. 10535].
The defense called Dr. Jan Leestma to testify concerning the
forensic pathological findings. Dr. Leestma had been the Chief of
Neurology at the medical center at Northwestern University in
Chicago, and was an associate medical examiner and consultant in
neuropathology. [Tr. 11000]. Dr. Leestma had examined over 5,000
brains, and authored a textbook titled Forensic Neuropathology.
[Tr. 11002-03]. Dr. Leestma not only examined the brain tissue of
Mrs. Peterson, [Tr. 11012] but also examined 257 autopsy reports in
North Carolina of death due to blunt trauma to the head from
beatings, covering 1991 to the present.
Dr. Leestma disagreed with Dr. Radisch that Mrs. Peterson was
beaten with an instrument such as the blow poke. [Tr. 11076]. The
complex lacerations found on Mrs. Peterson=s head were not
consistent with the type of linear lacerations that would be caused
by a beating with a long-handled instrument. [Tr. 11078]. The
lacerations were consistent with an impact against a relatively
flat, immovable object. [Tr. 11089]. Avulsions could be formed if
the head hit the surface at an angle. [Tr. 11092-93]. Dr. Leestma
explained that what appeared to be two separate lacerations could
be cause by a single impact. [Tr. 1110-11]. In addition, during a
single fall a person can hit more than one surface. [Tr. 11133].
Dr. Leestma believed that the injuries could be accounted for by a
total of four impacts on Mrs. Peterson=s head. [Tr. 11135]. Dr.
Leestma testified that the red neurons identified by Dr. Bouldin
could develop within 30 minutes, [Tr. 11137], a time period to
which Dr. Snell had testified to in another case. [Id.]. Dr.
Leestma also testified that the small amount of hemorrhage at the
thyroid fracture was consistent with a post-mortem injury, similar
to the artifactual bleeding when the spine was removed. [Tr.
Mrs. Peterson=s injuries stood in sharp contrast with those
seen in the beating cases Dr. Leestma reviewed. Of the 257 cases
reviewed, 215 had skull, facial or other associated fractures. Of
the remaining cases, only 8 did not have traumatic brain injury.
None of those cases involved multiple impacts. [Tr. 11199-200].
The defense presented expert testimony concerning the
biomechanics of a fall, and at least one possible scenario in which
Mrs. Peterson=s injuries could have been caused by a fall. Dr.
Faris Bandak, a professor of biomechanics and former director of
the head injury research program at the National Highway Traffic
Safety Administration, analyzed the injuries and the possible
sequence of events that could cause those injuries. [Tr. 11935].
Dr. Bandak explained that the lacerations caused by a head
hitting a flat surface, such as the floor, are irregular, while
blows from a rounded instrument such as the blow poke create linear
bruises. [Tr. 11968-71]. Blows from a single instrument would
produce a more uniform series of lacerations. [Tr. 11977]. The
bruises and other injuries on the extremities could have been
caused by hitting various surfaces during a fall. [Tr. 11978].
Dr. Bandak testified that, applying biomechanical principals,
the injuries sustained by Mrs. Peterson were inconsistent with
being hit with a blow poke, but were consistent with a fall. [Tr.
11985] Dr. Bandak considered the force required to cause
laceration without a skull fracture and then considered the various
surfaces that were available inside the stairway, such as the door
molding, edges of the steps, and the edge of a metal lift. [Tr.
11976]. Dr. Bandak then explained, using a sequences of
illustrations, that Mrs. Peterson could have fallen backwards after
walking up a few of the stairs, hitting her head against the door
jamb and then near the floor of step 17. [Tr. 11987]. The blood on
the bottom of Mrs. Peterson=s feet was consistent with her
attempting to stand after the first fall, and then falling a
second time, hitting her head again. The two falls would produce
four impacts, accounting for the various injuries. [Tr. 11990].
In rebuttal, the State presented the testimony of Dr.
McElhaney, who testified that not all of the various injuries could
be accounted for by a fall on the steps, and that the injuries were
consistent with being hit with a rounded instrument. [Tr. 12415].
Dr. McElhaney testified that Dr. Bandak=s scenario could account
for some of the injuries, but disputed whether it would produce
enough force to account for all of the lacerations. [Tr. 12423].
Dr. McElhaney agreed that one could get more than one laceration
from a single impact, and that one of the lacerations was a
stellate laceration consistent with hitting a flat surface. [Tr.
H. Evidence Regarding Death of Elizabeth Ratliff in 1985
A significant aspect of the State=s case that Mrs. Peterson
died from the result of a beating, rather than a fall on the
The State also called Dr Butts in rebuttal, who testified largely to the same
opinions offered by Dr. Radisch. [Tr. 12792]. Dr. Butts also disagreed with defense
evidence regarding Dr. Leestmas testimony regrading blood in the lungs.[Tr. 12809]
stairs, was evidence regarding the death of Elizabeth Ratliff in
1985 in Germany. Mrs. Ratliff taught at a Department of Defense
school and was close friends with Defendant and his first wife,
Patty, who was also a teacher. Mrs. Ratliff had two young
daughters, Margaret and Martha, and was left a widow when her
husband died while on assignment for the United States Air Force.
[Tr. 9693-97] After her husband=s death, Mrs. Ratliff lived with
her two daughters and with a nanny, who often stayed in the
residence. On November 25th, 1985, Mrs. Ratliff was found dead in
her residence by her nanny. Mrs. Ratliff was at the bottom of a
flight of stairs, and had suffered several lacerations to the head.
German doctors responded to the scene and determined that Mrs.
Ratliff died of natural causes, which in turn caused her to fall.
[Tr. 9854] An army CID investigator came to the scene and found
nothing inconsistent with the finding of a natural death. [Tr.
10048] A subsequent autopsy confirmed that the death had been
caused by intracranial bleeding, which in turn caused the fall.
Despite the prior findings that Mrs, Ratliff died from natural
causes, the State had her body exhumed and a new autopsy performed
by Dr Radisch, who came to the conclusion that Mrs. Ratliff died
from blunt force trauma to the head. Although the State presented
no evidence that Defendant was present when the injuries were
inflicted, or had a motive to kill Mrs. Ratliff, the trial court
overruled Defendant=s motion in limine to exclude evidence of this
death. [R.p. 179].
II. Lay Witness Evidence
Thomas and Cheryl Appel-Schumacher were friends with Mrs.
Ratliff. Mrs. Appel-Schumacher taught at the same school as Mrs.
Ratliff and considered her a good friend. [Tr. 9693]. Mrs. Appel-
Schumacher testified that Defendant and his first wife were very
close friends with Mrs. Ratliff, and that Defendant had helped Mrs.
Ratliff after the death of her husband. [Tr. 9697, 9736].
Elizabeth Ratliff went into a long period of mourning following her
husband=s death in October, 1983. [Tr. 9696].
Mrs. Appel-Schumacher married in the United States during the
summer of 1985, and the couple returned to Germany. [Tr. 9699].
Mrs. Ratliff planned a surprise party for the couple for the
Saturday before Thanksgiving. On the Thursday before the party,
Mrs. Ratliff looked pale and said that she had severe headaches and
had a medical appointment for the next week. [Tr. 9748-49].
Barbara Malagnino worked as a nanny for Mrs. Ratliff. She had
a room at the residence, but also stayed at an apartment some
nights. [Tr. 10098]. Malagnino testified that she saw the
Petersons every day, and said "it was like one big family." [Tr.
10104]. Malagnino spent the weekend with the Ratliffs, but spent
Sunday night at her apartment. Mrs. Ratliff planned on spending
the day with her daughters, and then taking her car in to be left
for service. Defendant was to bring Mrs. Ratliff home from
dropping off her car. [Tr. 10105]. Malagnino took a taxi to the
house on Monday morning, and noticed that lights were on in the
house. [Tr. 10108-09]. When she entered the house, Mrs. Ratliff
was laying on the bottom of the steps. Malagnino did not recognize
her, and ran upstairs. She found the telephone in Mrs. Ratliff's
bedroom, where Mrs. Ratliff would put it every night before going
to sleep.[Tr. 10111] She was unable to call the Petersons, and ran
down the stairs. Mrs. Ratliff was in a pool of blood and felt
warm. Malagnino ran to the Petersons'. Mrs. Peterson answered the
door, and Defendant came out of the upstairs in his boxers and t-
shirt. The Petersons returned to the house with Malagnino.[Tr.
10111-17]. Malagnino then took the girls out of the house. [Tr.
10132]. After Mrs. Ratliff's death, Defendant assisted by handling
the payment of bills and things of that nature. [Tr. 10136].18
On Monday morning Mrs. Appel-Schumacher learned of Mrs.
Ratliff death. [Tr.9703]. Mrs. Appel-Schumacher and her husband
went to the Ratliff house, and met Amy Beth Berner and her husband
Bruce, Defendant and his wife, and Barbara Malagnino. German
medical authorities were at the scene. [Tr. 9704-05]. Elizabeth
Raltiff was laying on the floor, covered by a coat, wearing boots,
and Barbara was hysterical. [Tr. 9705-06]. Mrs. Ratliff=s body had
already been moved. [Tr. 9756] Mrs. Berner spoke German well, and
Mrs. Malagnino also testified that a specific poster in Defendant's house in
Durham had been in her room in Germany.[Tr. 10139]. The back of the poster, however,
had a copyright of 1997 [Tr. 10228].
dealt with the medical people. [Tr. 9706]. Defendant did not speak
German well, [Tr. 9766], and Defendant dealt with American military
authorities, such as pointing out who was present at the house.
[Tr. 9707-09]. Defendant did nothing to hinder the investigation.
Mrs. Appel-Schumacher testified that there was a pool of blood
under Mrs. Ratliff's body, [Tr. 9722], and blood stains along the
wall going up the stairs that led to the next floor. [Tr. 9708].
Mrs. Appel-Schumchaer conceded that she had trouble remembering
aspect of the morning, such as all of the people who were there,
and that went she recently went back to the house it seemed much
smaller than she had recalled. [Tr. 9712, 9722]. The blood was not
cleaned until after Mrs. Ratliff's body was moved and the
authorities left, at which point several people cleaned up the
stains. [Tr. 9710-11]. Thomas Appel-Schumacher essentially echoed
his wife's recollections of the events. [Tr. 9781 et seq.]. Ms.
Berner, a friend and neighbor of Mrs. Ratliff, arrived at the house
after being summoned by Malagnino. [Tr. 10233]. Ms. Berner
explained that she saw blood on the walls, and claimed that she
told people that she thought it was a crime scene because she saw a
bloody foot print. Barbara explained that it was her foot print
from being in the house. [Tr. 10236]. According to Ms. Berner,
she spoke with German authorities, and after they left some
American authorities came. Although she claimed to have suspected
it was a crime scene, she said nothing to the authorities that she
spoke to, and that she said nothing to any authority for 16 years.
[Tr. 10243, 10252]. Ms. Berner admitted that she had been pregnant
at the time, and people shielded her from the scene,[Tr.10250] and
that some of memories were really "flashbacks" she had recently
been having of the scene. [Tr. 10257].
Steven Lyons was a Special Agent with the United States Army
Criminal Investigation Command. [Tr. 10039]. When an American
associated with the military died off base, the CID would assist
the German authorities. [Tr. 10044]. Agent Lyons responded to the
Ratliff residence, with an interpreter, to assist the German
police. There were Atoo many people for a scene of that type.@
[Tr.10046]. Mrs. Ratliff=s body was still at the scene. [Tr.
10047]. German police informed Lyons that the death was natural,
due to a cerebral hemorrhage, and Lyons examined the scene to see
if there was anything inconsistent with this determination. Lyons
walked up the staircase, and did not see any blood other than the
blood on the landing where Mrs. Ratliff lay. [Tr. 10048-49]. Lyons
took names of persons present, and recalled speaking to one male
who relayed the same information relayed by the German police
regarding the cause of death. [Tr. 10068-69]. Lyons= examination
disclosed nothing that was inconsistent with a natural death. [Tr.
Margaret Blair, Mrs. Ratliff=s sister, lived in the United
States in 1985. After Mrs. Ratliff died, she learned that the will
designated the Petersons as guardians of the two girls. [Tr. 9937;
9952]. Mrs. Blair was not surprised that her sister chose the
Petersons as guardians as her sister had spoken of the relationship
with the Petersons. [Tr. 9953]. Mrs. Blair learned of her sister=s
death from a telephone call from Defendant. After hearing what
happened, Mrs. Blair was in shock and testified that it was
possible that Defendant explained that there had been a stroke.
[Tr. 9949]. The girls visited with the aunt as they were growing
up, but Defendant would not agree to give up the guardianship that
the Ratliffs= had entrusted to him.19 No evidence was presented
that Defendant personally benefitted from the estate.
III. Forensic Evidence
The jury was provided with a letter that Defendant wrote, explaining why he
believed it was appropriate for him to continue in the role that had been entrusted to him.
Dr. Larry Barnes, a board certified anatomic and clinical
pathologist, performed the original autopsy of Mrs. Ratliff. [Tr.
9849]. Dr. Barnes did not have specific training in forensic
pathology. Dr. Barnes, relying on his contemporaneous report,
explained that Mrs. Ratliff had von Willebrands disease, a bleeding
disorder, and had been complaining of headaches. There were no
signs of struggle at the scene, and German medical personnel found
bloody spinal fluid consistent with intracranial bleeding, with
subsequent scalp lacerations sustained during a fall on the stairs.
[Tr. 9855]. Dr. Barnes performed an examination of head
lacerations, and then examined the brain. [Tr. 9858-60]. There
were multiple lacerations, some to the skull, on the back of the
head. [Tr. 9862]. Cerebellar lobes showed herniation, consistent
with pressure caused by intracranial hemorrhage. The ventricles of
the brain were filled with blood. [Tr. 9864]. Dr. Barnes
considered whether death was due to trauma from falling on the
stairs, but determined that the death was natural, due to
intracranial bleeding due to an aneurysm or similar mechanism. [Tr.
9885-86]. A slide of brain tissue was prepared, and eventually
reviewed by the Armed Forces Institute of Pathology. [Tr. 9873].
The AFIP is staffed by world-known experts, including forensic
experts. After reviewing the material provided,20 the Chief of the
After reviewing the slide, the AFIP initially questioned, but did not determine,
whether the slide showed a vascular malformation. The final report was issued after this
question was raised. [Tr. 9905].
Division of Forensic Pathology agreed that the death was Asudden
unexpected death due to spontaneous intracranial hemorrhage
complicating von Willebrand=s Disease, natural.@ [Tr. 9906].
Dr. Radisch and Dr. Gleckman performed a second autopsy on
Mrs. Ratliff. There were seven lacerations on the head, which had
been glued and sewn prior to internment. [Tr. 10758]. There was
also a linear fracture at the base of the skull, and bruising of
the left hand, wrist, near the left eye and upper back. [Tr. 10762,
10780, 10786]. The brain, and other organs, had been placed in the
chest cavity. By the time of the second autopsy, only half the
brain remained, sectioned into pieces in a peculiar manner. [Tr.
10386-87]. Dr. Gleckman noted different areas of hemorrhages in
the brain, including in the epidural space, the subdural space, and
the subarachnoid space. [Tr. 10397]. Dr. Gleckman testified that
he did not see the blood in the ventricles observed by Dr. Barnes.
[Tr. 10438]. Dr. Gleckman agreed that a vascular anomaly can cause
headaches, [Tr. 10474], and that intracranial bleeding can be
caused by a stroke as well as by blunt force trauma. [Tr. 10494].
Although Dr. Gleckman=s examination of the brain did not reveal any
indication that any given injury was other than accidental, [Tr.
10488], based upon the number and location of the lacerations he
concluded that the injuries were inflicted during an assault. [Tr.
10495]. Dr. Radisch concurred in this conclusion. [Tr. 10802-03].
Rigor, which increases over time, is a means of estimating
time of death. Dr. Radisch agreed that, had Mrs. Ratliff died the
evening before she was found, one would expect to see significant
rigor examining the body the next morning. No rigor was reported.
Dr Leestma examined the remaining portions of the brain, and
testified that he disagreed that there was not sufficient
evidence of a stroke. [Tr. 11151]. As with Dr. Barnes, Dr.
Leestma saw evidence of herniation, and of vascular
malformation. [Tr. 11155-62]. When examination of the brain
reveals intraventicular hemorrhage, there is a significant
chance of a rupture or a vascular malformation, and a lesser
chance of traumatic injury to the brain. [Tr. 11173]. Dr.
Leestma testified that there was a very likely that Elizabeth
Ratliff died from a stroke. [Tr. 11179]. I. Evidence
Regarding Defendant=s Bi-Sexuality
The search of Defendant=s residence, and computer, produced
evidence that Defendant was bi-sexual, with an interest in a
physical relationship with men. Specifically, sexual images of men
were found during the search of the computer, as were indications
that the computer had been used to access sexual web-sites. E-mail
correspondence with a male escort, later identified as Brent
Wolgamott, indicated that Defendant once expressed an interest in a
paid, physical relationship with Wolgamott. The trial court denied
defendant=s motion in limine and objections regarding the
admissibility of this evidence,[Tr. 7757, 7796, 7869], denied the
motions to suppress the evidence as the product of an illegal
search, [Tr. 7762,, 8060], and allowed the State to present the
images and the live testimony of Wolgamott. Specifically, images
that were stored in the temporary internet file, which indicated
that they had been viewed during web browsing, were introduced,
[Tr. 7882-84], a list of web addresses that were contained on the
hard drive was introduced [Tr. 7887, and a series of e-mails with
Wolgamott were introduced. [Tr. 8069]. These e-mails, and the
testimony of Walgamott, indicated that Defendant and Wolgamott
corresponded in August and September, 2001, about a possible
meeting for sex, which never took place.[Tr. 8071-79]. During
these e-mail exchanges, Defendant made clear that he was bi-sexual,
and loved his wife, [Tr. 8077, 8089] and was only interested in a
paid, physical relationship. [Tr. 8083] Walgamott testified that
most of his clients were married men, who were bi-sexual and
happily returned to their married lives after an encounter with
him. [Tr. 8081-82].
After closing arguments, which are discussed in the body of
the brief, and several days of deliberations, Defendant was
convicted of first degree murder and sentenced to life in prison.
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
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[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
A search warrant may only be issued upon a showing of facts that
establish Aa 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 Aaffidavit 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 Areasonably 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
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).
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 Ahe 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[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)(A[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
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
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
[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
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
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 Ahouse,@ without any
description of the object of the search violates the constitution.
Indeed, in Groh, the United States Supreme Court held that a
According to the States 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]
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 Aspecified 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 Aany 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
TRIAL COURT ERRED IN ADMITTING IRRELEVANT,
PREJUDICIAL EVIDENCE REGARDING THE DEATH OF
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 Asimilarities@ 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 Agiven 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.
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
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.
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 Aof 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
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 Asubstantial 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
The Court in Stager observed that the doctrine of chances
Ademonstrates 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
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.
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
Astupid@ 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 B 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 B 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): Athe 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 Adrownings,@ 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 Amurder@ 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 Defendant=s actions
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.
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.
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 Asimilarities@ 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
Astriking similarities@ may justify the introduction of evidence of
a prior bad act by the defendant, the similarities must be
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.
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 Acircumstantial evidence@ of motive and that
Defendant opened the door by describing an Aidyllic 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 Ato 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. Murrill 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
Aproved@ 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 Asoul 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
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 e-
mail 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
Avery likely@ that Mrs. Peterson never saw the e-mail that had been
sent to her. [Tr. 7961] In addition, the e-mails involving ABrad@
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. AEvidence 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 COURT ERRED IN ADMITTING IRRELEVANT AND SPECULATIVE EVIDENCE
REGARDING FINANCES AND MRS. PETERSON=S JOB STATUS
Assignment of Errors 8, 9 & 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 Aoptimization@
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
Amere 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
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 Ayou 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
Aabsolutely 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 A[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 A[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 Alet=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
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)
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 Bwork in this courthouse, this
very courthouse in our county, he=s so arrogant that he
thinks that we would all risk our reputations our
Mr. Maher: Objection
The Court: Overruled
Ms. Black B 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
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:
A[d]o you honestly B
Mr. Maher: Objection
The Court: Overruled
Ms. Black: B 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
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 A[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. AThey 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 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
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
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
(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
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 Ahas 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 Anot 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 A[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.
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.
Thomas K. Maher, NCSB 12771
Attorney for Defendant-Appellant
WINSTON & MAHER
312 West Franklin Street
Chapel Hill, North Carolina 27516
Facsimile: 919 967-4953
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.
Thomas K. Maher, NCSB 12771
Attorney for Defendant-Appellant
WINSTON & MAHER
312 West Franklin Street
Chapel Hill, North Carolina 27516
Facsimile: 919 967-4953
William B. Crumpler, Assistant Attorney General
Jack Barnwell, Assistant Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602