Docstoc

Peterson_ Michael Iver

Document Sample
Peterson_ Michael Iver Powered By Docstoc
					NO. COA 05-973                                 FOURTEENTH DISTRICT

                   NORTH CAROLINA COURT OF APPEALS
                 **********************************

STATE OF NORTH CAROLINA,          )
                                  )       Durham County
                                  )       No. 01 CRS 24821
          vs.                     )
                                  )
MICHAEL IVER PETERSON,            )
                                  )
         Defendant                )


****************************************************************

                     DEFENDANT-APPELLANT’S BRIEF

****************************************************************
                                -i-

                         TABLE OF CONTENTS

 PAGE

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-

ARGUMENTS ..................................................

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-

CONCLUSION.................................................. -87-

CERTIFICATE OF SERVICE AND FILING........................... -88-
                              -ii-

                 TABLE OF CASES AND AUTHORITIES
                                                            PAGE
CASES

Aguilar v. Texas, 378 U.S. 108...............................-53-

Berger v. United States, 295 U.S. 78, 88 (1935)..............-82-

Cooper v. Commonwealth of Virginia, 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,
                             -iii-

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-
                              -iv-


State v. Rinaldi,
264 N.C. 701, 142 S.E.2d 604 (1965). ........................-71-

State v. Sheetz,
46 N.C. App. 641, 265 S.E.2d 914 (1981)......................-53-

State V. Sisk, 123 N.C. App. 361, 473 S. E.2d 438 (1996) ....-78-

State v. Smith,
279 N.C. 163, 166-167 (1971).................................-82-

State v. Stager, 329 N.C. 278, 295 (1991) ...................-74-

State v. Stager,
329 N.C. 278, 303, 406 S.E.2d 876 (1991) ....................-61-

State v. Wallace, 105 N.C. App. 498, 410 S.E. 2d 226 (1991) ..-2-

State v. Watts, 357 N.C. 366, 584 S.E.2d 740 (2003)..........-71-

State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995)..........-74-

State. Jeter,
326 N.C. 457, 389 S.E.2d 805 (1990)..........................-60-

Thompson v. Louisiana, 469 U.S. 17 (1984)....................-52-

United States v. Hunter,
13 F. Supp. 2d 574 (D. Vt. 1998).............................-55-

United States v. Tomaiolo,
249 F.2d 683, 689 (2nd Cir. 1957) ............................-69-

West Virginia v. Richards,
190 W. Va. 299, 438 S.E.2d 331, 335 (1993)...................-69-
                                -v-

CONSTITUTIONAL PROVISIONS

N.C. Const. Art. 1 '20      ..................................   -53-

STATUTES

N.C.G.S. '' 7A-27(b) .........................................-2-

N.C.G.S. ' 15A-244...........................................-52-

N.C.G.S. ' 15A-246...........................................-53-

N.C.G.S. ' 15A-1230(a) (1999)................................-84-

N.C.G.S. ' 15A-1444(a) .......................................-2-



OTHER

N.C.R. App. Proc. 4 (a)     ....................................-2-

N.C. R. Evid. 401-404       ...................................-58-

N.C. R. Evid. 803           ...................................-78-
NO. COA 05-973                                       FOURTEENTH DISTRICT

                    NORTH CAROLINA COURT OF APPEALS
                  **********************************

STATE OF NORTH CAROLINA,            )
                                    )         Durham County
                                    )         No. 01 CRS 24821
            vs.                     )
                                    )
MICHAEL IVER PETERSON,              )
                                    )
           Defendant                )


****************************************************************

                       DEFENDANT-APPELLANT=S BRIEF

****************************************************************

                            QUESTIONS PRESENTED

     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
           ELIZABETH RATLIFF?`

     III. WHETHER THE COURT ERRED        IN    ADMITTING   EVIDENCE   OF
          DEFENDANT=S BI-SEXUALITY?

     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

Appellate Procedure.


            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

A.   Introduction

     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
                                          -3-

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

stairs.

      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
                                 -4-

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
                                        -5-

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
                                 -6-

arrive, and to walk out to meet the paramedics as they arrive. [Tr.

4816].

     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]
                                 -7-

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


     1
       Heather Whitson, a medical resident and a friend of Todd
Peterson, was at the house. [Tr. P. 6148].
                                       -8-

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.

5542-44].

      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].



      2
          Officer Figueroa did not testify.
                                   -9-

     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

     3
       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.
8299].
                                 -10-

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
                                           -11-

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.
                            4
[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-

75].

       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 wifes hair in his hands if
       4


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. Petersons hair on its surface, indicating that
Defendant indeed did have his wifes hair on his hands after handling her body. [Tr.
7681-82].
                                            -12-

although it appeared to have been a fall,                      they should look for

some type of instrument that may have caused the lacerations.

[Tr. 7598].

       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

committed:

       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.,

       5
           Other search warrants were obtained, such as a warrant to seize items from Mrs.
Petersons body, which are not at issue in this appeal.
                                           -13-

       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


       6
           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].
                                            -14-

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.

6455].

      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
                                       -15-

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.
                                  -16-

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.

[Tr. 5974-75].

     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
                                            -17-

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]




       7
           Agent Gregory testified that hairs found in Mrs. Petersons hands were consistent
with Mrs. Petersons 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].

       8
           The absence of stains suggests that the wearer of the glasses was not involved in
a vicious beating.
                                  -18-

     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.

[R.pp. 43-44].

     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,
                                    -19-

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,
                                  -20-

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
                                            -21-

       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

       9
           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].
                                        -22-

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
                                    -23-

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
                               -24-

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.

5419].

      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
                                              -25-

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.

[Tr. 5300].

       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]


       10
            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
                                            -26-




Marthas 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.
10551-566]
                                             -27-

      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


      11
           Lori Campbell, another sister, testified that she saw the blow poke in July, 2001.
[Tr. 12370-71]
                                 -28-

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

videotaped.
                                               -29-

       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]

       12
            During the trial the stairs were identified by number, with the top stair being stair
1 and the bottom stair being stair 18.
                                          -30-

      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
                                                              13
had blocked the blood stains. [Tr. 9088-89].

      Deaver agreed that the blood stains on Mrs. Peterson=s feet


      13
           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].
                                             -31-

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


       14
            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. Petersons body when it was moved from the scene, while
still dripping blood. [Tr. 9026]

       15
            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 ].
                                 -32-

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.
                                        -33-

[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
                               -34-

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
                                            -35-

of being aspirated blood. [Tr. 11713].                      Dr. Lee saw evidence of

blood in Mrs. Peterson=s mouth from the scene photographs. [Tr.

11712].16

      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.

11733].



      II. Pathology

      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

      16
           Dr. Leestma testified for the defense that he found blood in slides taken from
Mrs. Petersons lungs. [Tr. 11180 et seq]. Dr. Radisch disputed whether the blood in
Mrs. Petersons lungs could account for her coughing blood. [10746-47]
                                       -36-

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
                                -37-

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
                                 -38-

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.

10944-45].

     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
                                 -39-

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.

11146].

     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
                                    -40-

the remaining cases, only 8 did not have traumatic brain injury.

None of those cases involved multiple impacts. [Tr. 11199-200].

     III. Biomechanics

     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
                                             -41-

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.

12464].17

H.   Evidence Regarding Death of Elizabeth Ratliff in 1985

      I.       Background

      A significant aspect of the State=s case that Mrs. Peterson

died from the result of a beating, rather than a fall on the

      17
           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. Leestmas testimony regrading blood in the lungs.[Tr. 12809]
                               -42-

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.

[Tr. 9885]



     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
                                       -43-

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
                                             -44-

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

      18
           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].
                                    -45-

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.

[Tr. 9771-72].

     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
                                 -46-

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.

10083].

     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;
                                             -47-

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




       19
            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.
[Tr. 9955].
                                              -48-

       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


       20
            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].
                                      -49-

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
                                   -50-

evening before she was found, one would expect to see significant

rigor examining the body the next morning.         No rigor was reported.

[Tr. 10917].

     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
                                      -51-

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.

                                ARGUMENTS
                                    I.
                THE COURT COMMITTED CONSTITUTIONAL ERROR
               IN DENYING DEFENDANT=S MOTION TO SUPPRESS

                 Assignment of Error 1,2,3. R.p. 296.

      Much of the State=s case was built on physical evidence seized

during a search of Defendant=s home, and a second search in which a

computer was seized.      Defendant filed a motion challenging these
                                     -52-

searches, [R.p. 6, 47], and following a hearing, the trial court

denied this motion. [R.p. 56].         The court overruled Defendant=s

objections to the introduction of the fruit of the searches,

including a renewed motion challenging the subsequent search of the

computer by a private firm.      The trial court concluded, as a matter

of law, that the search warrants were supported by probable cause,

and were not fatally overbroad. [R.p. 61].                 In reaching these

conclusions,     the   court    ignored      fundamental        principles     of

constitutional law.

     The showings in support of the search warrants are quoted

verbatim at pages 12-18 of this brief, as is the language of the

warrants authorizing the searches.          The first warrant relies upon

the statement that Mrs. Peterson reportedly fell down a flight of

stairs, and that there was blood at the scene, including blood on

the entryway to the house and blood on Defendant.                 Based solely

upon this showing, the warrant authorized an essentially limitless

search of Defendant=s residence.        The second warrant, authorizing

the seizure of computers, contained the identical information, with

the exception of the additional language that A[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
                                            -53-

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



       21
            Even when police are called to the scene of a murder, they may only look for
potential victims and perpetrators without a warrant; any additional search must be
pursuant to a warrant. Thompson v. Louisiana, 469 U.S. 17 (1984).
                                    -54-

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

(1981).

      A related requirement of the Fourth Amendment is that the

warrant particularly describe the place to be searched and the

thing to be seized.           See also Article 1, Section 20 of the

Constitution of North Carolina. General warrants to search may not

be   granted.   See   also    N.C.G.S.   '15A-246.   A   warrant   that   is

supported by probable cause may still be invalid if it lacks the

required specificity.        Groh v. Ramirez, 540 U.S. 551 (2004).        The

requirement for specificity insures that the showing of probable
                                  -55-

cause is measured against the scope of the contemplated search, and

prevents officers from determining the scope of their authority by

themselves.   In Maryland v. Garrison, 480 U.S. 79, 84 (1987), the

Court observed:

     By limiting the authorization to search to the specific
     areas and things for which there is probable cause to
     search, the requirement ensures that the search will be
     carefully tailored to its justifications, and will not
     take on the character of the wide-ranging exploratory
     searches the Framers intended to prohibit. Thus, the
     scope of a lawful search is defined by the object of the
     search and the places in which there is probable cause to
     believe that it may be found.


The Court has also highlighted the need for specificity in search

warrants:

     [T]he requirement that warrants shall particularly
     describe the things to be seized makes general searches
     under them impossible and prevents the seizure of one
     thing under a warrant describing another. As to what is
     to be taken, nothing is left to the discretion of the
     officer.

Marron v. United States, 275 U.S. 192, 196 (1927).; see also

Standford v. Texas, 379 U.S. 476, 485 (1965); State v. Connard, 81

N.C. App. 327, 329, 344 S.E.2d 568 (1986), aff=d 319 N.C. 392, 354

S.E.2d 238 (1987).

     The search warrants relied upon in this case fail these basic

requirements.     This   is   starkly    evident   in   the   warrant   that

authorized the seizure and search of the computer.              There were

literally no facts offered to support the claim that there was

probable cause to believe that there was additional evidence at the

scene; rather the magistrate was required blindly to accept this
                                            -56-

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

      22
        According to the States expert, the computer had possibly been accessed during
a time when only the police had access to the house, which may explain their interest in
obtaining a search warrant. [Tr. 1984-85]
                                 -57-

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
                                -58-

Defendant=s   house.    Items   taken   included   the   paperwork   and

documents from Defendant=s study. [R.p. 39-40].

     The trial court, then, committed constitutional error in

denying Defendant=s motion to suppress, and the conviction must be

reversed.




                                 II.
             TRIAL COURT ERRED IN ADMITTING IRRELEVANT,
            PREJUDICIAL EVIDENCE REGARDING THE DEATH OF
                          ELIZABETH RATLIFF

            Assignment of Error: Nos 5,6, 7, R.p. 296-97

     The central question before the jury was whether the State

proved beyond a reasonable doubt that Kathleen Peterson was beaten.

 The State=s direct case rested largely on forensic evidence, as

did the defense case.   This forensic evidence went to the heart of

the case; did the nature of Kathleen Peterson=s      injuries and the

bloodstain evidence at the scene - the circumstances of Kathleen

Peterson=s death - prove beyond a reasonable doubt that she was the

victim of a murder.     A logical analysis of this evidence would

reveal the proper answer.

     Logic, however, was cast aside when the court allowed the

State to present extensive evidence of the death of Elizabeth

Ratliff, which occurred 16 years earlier, was fully investigated at

the time and found to be from natural causes, and for which there

was no evidence that Defendant was responsible or benefitted from.
                               -59-

 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,
                                             -60-

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



       23
            This claim is flawed. Mrs. Ratliff was believed to have died from a stroke,
exacerbated by a bleeding disorder, rather than from the fall on the stairs. There was no
reason for anyone to believe that Kathleen Peterson would also be viewed as having died
from a stroke simply because she was also found on the stairs. Any superficial similarity
cannot hide this significant difference, which undermines any claim that a jury could
rationally believe that Defendant somehow learned how to stage a convincing natural
death from the death of Elizabeth Ratliff.
                                         -61-

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
                                -62-

the evidence must link the defendant to the prior crime. 356 N.C.

at 154 (quoting State v. Coffey, 326 N.C. 268, 389 S.E.2d 48

(1990)).    The Court went on to assume, without deciding, that the

evidence was sufficient to link the defendant to the prior crimes,

and reversed the conviction on other grounds.        In reversing,

however, the Court observed that the pre-trial identification was

of questionable validity, making clear that this contributed to the

reversal.



     Although this Court has held that there need not be direct, as

opposed to circumstantial, evidence linking a defendant to a prior

crime, State. Jeter, 326 N.C. 457, 389 S.E.2d 805 (1990), there is

still a need to prove that the defendant charged in the current

case in fact committed the prior crime.     The Court noted that a

court must take the degree of evidence linking a defendant to the

prior crime into account, including in the balancing test under

Rule 403.   326 N.C. at 459.

     The cases that have admitted evidence of a prior death all

contain substantial   evidence that the prior death was not only a

murder, but also link the defendant to the prior death. For

example, in State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876

(1991) the Court noted that there must be 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
                                            -63-

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


24
     The state relied on the fact that he was allegedly the last person to see her alive
the night before her body was found. This merely assumes that if she was murdered,
Defendant did it; otherwise, the person who committed the murder was the last person to
see her alive. It also assumes that she died the night before her body was found, when
all the scientific evidence is that she did not die until that morning, when Defendant was at
his own home and could not possibly have been responsible.
                               -64-

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
                                            -65-

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
       25


that was consistent with his role as guardian. There was no evidence that he sold or
misused their assets.


       26
            The State, searching for some motive, did DNA testing in an attempt to prove
Defendant was the father of one of the girls; the test proved that he was not the father.
                                 -66-

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

[Tr. 12889]
                                       -67-

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

meaningful.

      In this case, whatever similarities may have existed between

the circumstances of the death of Elizabeth Ratliff and Kathleen

Peterson cannot obscure the fact that Defendant was not shown to

have been responsible for the death of Elizabeth Ratliff.               Without

that crucial evidentiary link, the evidence from Germany had no

relevance to the death of Kathleen Peterson sixteen years later.

 Defendant is therefore entitled to a new trial.

                                   III.
                  THE COURT ERRED IN ADMITTING EVIDENCE
                       OF DEFENDANT=S BI-SEXUALITY

                    Assignment of Error 11, R.p. 297

      During the search of Defendant=s house and computer, the State

discovered evidence that Defendant was bi-sexual.              This evidence

included computer images, websites and e-mails indicating that on

one   occasion    several     months    before    Kathleen   Peterson    died,

Defendant attempted to set up a meeting with a male escort, which

fell through.       Defendant filed a motion in limine seeking the
                                      -68-

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,
                                            -69-

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
                                      -70-

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
                                    -71-

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

basis.

     The State=s second contention, that the jury could infer that

Kathleen Peterson somehow first learned of Defendant=s bi-sexuality

on the night of her death by accessing the computer, and that this
                               -72-

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
                                -73-

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 evidence.

                               IV.
THE COURT ERRED IN ADMITTING IRRELEVANT AND SPECULATIVE EVIDENCE
                                     -74-

         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
                                      -75-

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
                               -76-

defendant promised a portion of the proceeds of a life insurance

policy on the victim to a co-defendant who assisted in the murder.

 In State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995), defendant

was charged with the murder of her stepson.    That Court held that

evidence that defendant=s husband, with her knowledge, amended a

life insurance policy days before the stepson=s death was relevant

to the issue of motive at trial.   In State v. Stager, 329 N.C. 278,

295 (1991) defendant was charged with shooting her husband.     The

State was permitted to introduce evidence that defendant had

secretly borrowed large sums of money, had forged her husband=s

signature on loan applications and checks, and was in danger of

having a bank contact her husband due to missed loan payments.

Defendant also stood to receive a substantial amount of life

insurance proceeds upon her husband=s death.      In each of these

cases the jury did not need to speculate about whether there was

any link between the defendant=s financial circumstances and the

crime.

     In this case there was no evidence       establishing any link

between the death of Kathleen Peterson and the couple=s finances or

her job status.   Rather, the State relied on conjecture, which was

most starkly exhibited in the presentation of evidence regarding

the short tenure of Kathleen Peterson on the optimization list,

admitted over Defendant=s objection. [Tr. 5122-24].   Had the State

been able to prove that Defendant was aware that his wife was on

the optimization list, there might have at least been an argument
                                   -77-

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.
                                -78-

     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.
                                     -79-

7952].     Finally, any speculation about whether finances and job

stress were causing any tension between Defendant and his wife was

removed by Helen Prislinger=s testimony that she could detect no

tension during her conversation with Mrs. Peterson just before she

died, in which Mrs. Peterson spoke with Defendant, and from Ms.

Tomasetti=s account of the relaxed atmosphere at the house that

Saturday night.

     The    financial     evidence    raised   no    more    than   improper

speculation and conjecture about a possible financial motive, which

invited the jury to rely on something other than reasonable

inferences to decide the case.          This evidence should have been

excluded as irrelevant and as unduly prejudicial under Rule 403 of

the Rules of Evidence.      The introduction of extensive evidence on

this point deprived Defendant of a fair trial, and the conviction

must be reversed.

     Finally, the court erred in allowing the introduction of the

Equifax report as substantive evidence of the state of the couple=s

credit card debt.       An Equifax report is not admissible under the

hearsay rules as a business record as it contains information

acquired by Equifax from other companies, and no foundation was

laid that the information contained within the report met an

independent    hearsay     exception.       The     report   was    therefore

inadmissible under Rule 803 of the Rules of Evidence, and the court

erred in overruling Defendant=s objection to the introduction of

this report. See State v. Sisk, 123 N.C. App. 361, 473 S. E.2d 438
                                    -80-

(1996)     (business   record    containing        double    hearsay     is   not

admissible), affirmed in part dismissed in part, 345 N.C. 749,. 483

S.E.2d 440 (1997)

                                  V.
              THE COURT ERRED IN OVERRULING DEFENDANT=S
               OBJECTIONS TO IMPROPER CLOSING ARGUMENT

             Assignments of Error 22, 23 and 24, R.p. 299

     The jurors in this case were called upon to evaluate complex

evidence    concerning    the   processing    of    the     scene   of   Kathleen

Peterson=s death, the significance of blood stains and other

forensic evidence, the reliability of pathological findings and

their significance in determining whether the injuries were the

result of a fall or beating.          In order properly to make this

evaluation, jurors were required to assess the credibility of the

various witnesses who testified, and the ultimate credibility of

the State=s case.      The ability of the jurors properly to perform

their job, however, was fatally undermined by repeated improper

arguments by the State.     The court=s failure to sustain Defendant=s

objections to these improper arguments was an abuse of discretion

and requires a new trial.

     The State=s case rested primarily on the testimony of Durham

police, EMT=s, agents of the State Bureau of Investigation and

medical examiners.       Defendant presented evidence that the police

were aware of his column, which routinely attacked the competence

of the Durham police department.           Rather than argue the evidence

that supported the credibility of the witnesses, the prosecution
                               -81-

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
     integrity B

     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

[Tr. 13119-120].

     Evidence was presented during the trial that Ms. Black had

taken witnesses from Germany to a group dinner, which was relevant

to establish that the witnesses had the opportunity to discuss the

case prior to their testimony.     Ms. Black responded to this in

closing argument by arguing that there was nothing wrong with going

out to socialize, and then stating:
                                  -82-

        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
                                        -83-

      [Tr. 13217]

      The court then called counsel to the bench, and defense

counsel argued that it was improper to argue that the experts

worked for the jurors, and that this was a basis for assessing

their credibility. [Tr. 13218].           The prosecutor responded that the

experts did work for the jurors           because 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 jurors.

      The courts of this state have repeatedly recognized the

dangers inherent when a prosecutor presents arguments that invite

the jury to reach its decision on an improper basis.                       The North

Carolina Supreme Court, quoting Berger v. United States, 295 U.S.

78, 88 (1935), observed that a prosecutor:
                                    -84-

     [I]s the representative not of an ordinary party to a
     controversy, but of a sovereignty whose obligation to
     govern impartially is as compelling as its obligation to
     govern at all;    and whose interest, therefore, in a
     criminal prosecution is not that it shall win a case, but
     that justice shall be done. As such, he is in a peculiar
     and very definite sense the servant of the law, the
     twofold aim of which is that guilt shall not escape or
     innocence suffer.   He may prosecute with earnestness and
     vigor--indeed, he should do so. But, while he may strike
     hard blows, he is not at liberty to strike foul ones.
     It is as much his duty to refrain from improper methods
     calculated to produce a wrongful conviction as it is to
     use every legitimate means to bring about a just one.

          It is fair to say that the average jury, in a
     greater or less degree, has confidence that these
     obligations, which so plainly rest upon the prosecuting
     attorney, will be faithfully observed.    Consequently,
     improper suggestions, insinuations and, especially,
     assertions of personal knowledge are apt to carry much
     weight against the accused when they should properly
     carry none.

State v. Smith, 279 N.C. 163, 166-167 (1971); see also State v.

Jones, 355 N.C. 117, 130-31 (2002).

     The rules governing the limits         of a closing argument by the

State in a criminal trial ensure that jurors make an independent

evaluation of the evidence, upon proper grounds, rather than simply

trusting the assurances of the prosecution that neither they nor

their   witnesses    would   risk   their   reputations   prosecuting   an

innocent man.       The rules further prevent arguments that invite

jurors to act upon bias or prejudice or other improper grounds,

such as accepting the word of experts who are presented as having

some greater credibility because they somehow work for the jurors.

 The prosecution in this case repeatedly violated these rules, and

the court repeatedly overruled the objections, thereby signaling to
                                     -85-

the   jurors   that   the    arguments      were    permissible.        The   one

instruction    to   ignore   the    prosecutor=s      personal    opinions    was

insufficient to cure this error.

      The basic rules governing closing argument have been spelled

out by the North Carolina Supreme Court.            Perhaps the most thorough

discussion is contained in State v. Jones, supra.                The Court laid

out the proper purposes of closing argument and the obligations of

counsel:

      A lawyer's function during closing argument is to provide

      the jury with a summation of the evidence, Herring v. New

      York, 422 U.S. 853, 861-862, 95 S.Ct. 2550, 2555-2556, 45

      L.Ed.2d 593, 599-600 (1975), which in turn "serves to

      sharpen and clarify the issues for resolution by the

      trier of fact," id. at 862, 95 S.Ct. at 2555, 45 L.Ed.2d

      at 600, and should be limited to relevant legal issues.

       See State v. Allen, 353 N.C. 504, 508-11, 546 S.E.2d

      372, 374-76 (2001).          Closing     argument is a "reason

      offered in proof, to induce belief or convince the mind,"

      2 R.C.L. Arguments of Counsel '              1, at 404 (1914), and

      "[t]he   sole   object   of    all    [such]     argument    is   the

      elucidation of the truth," id.

      In the context of a criminal jury trial, specific
      guidelines for closing argument have been set out by the
      General Assembly:

      (a) During a closing argument to the jury an attorney may
      not become abusive, inject his personal experiences,
      express his personal belief as to the truth or falsity of
      the evidence or as to the guilt or innocence of the
                                   -86-

     defendant, or make arguments on the basis of matters
     outside the record except for matters concerning which
     the court may take judicial notice.     An attorney may,
     however, on the basis of his analysis of the evidence,
     argue any position or conclusion with respect to a matter
     in issue.

     N.C.G.S. '   15A-1230(a) (1999)

                          *    *     *    *   *

     If attorneys were to scrupulously comply with these
     seemingly simple requirements, then the issue of alleging
     improper arguments on appeal would prove an exception
     instead of the rule.   Regrettably, such has not been the
     case;   in fact, it appears to this Court that some
     attorneys intentionally "push the envelope" with their
     jury arguments in the belief that there will be no
     consequences for doing so.     See, e.g., State v. Call,
     353 N.C. 400, 419, 545 S.E.2d 190, 202-03, cert. denied,
     534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001).

     When, as here, counsel has objected to the improper arguments,

the question is whether the trial court abused its discretion in

overruling the objection.     Jones at 131.     When there has been clear

violations of the rules, the Court 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
                                      -87-

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.



                                   CONCLUSION
                                    -88-

       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
                              -89-

the ability of jurors to make a fair assessment of the case, and

Defendant=s conviction must be reversed.

    RESPECTFULLY submitted this the 10th day of October, 2005.




                              Electronically Submitted
                              Thomas K. Maher, NCSB 12771
                              Attorney for Defendant-Appellant
                              WINSTON & MAHER
                              312 West Franklin Street
                              Chapel Hill, North Carolina 27516
                              Telephone: 919-929-1043
                              Facsimile: 919 967-4953
                              E-mail: tkmaher@winstonandmaher.com
                                     -90-

                    CERTIFICATE OF FILING AND SERVICE

    THIS IS TO CERTIFY that a copy of the foregoing Defendant-

Appellant=s Brief was duly filed and served upon the following by

depositing   same    enclosed   in    a   post   paid,   properly   addressed

envelope   in   a   Post   Office    or   official   depository     under   the

exclusive care and custody of the United States Postal Service.

    This the 10th day of October, 2005.




                                     Electronically Submitted
                                     Thomas K. Maher, NCSB 12771
                                     Attorney for Defendant-Appellant
                                     WINSTON & MAHER
                                     312 West Franklin Street
                                     Chapel Hill, North Carolina 27516
                                     Telephone: 919-929-1043
                                     Facsimile: 919 967-4953
                                     E-mail: tkmaher@winstonandmaher.com


Served on:

William B. Crumpler, Assistant Attorney General
Jack Barnwell, Assistant Attorney General
North Carolina Department of Justice
Appellate Section
P.O. Box 629
Raleigh, NC 27602

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:6
posted:4/8/2012
language:
pages:96