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									No. COA09-1327                      NINTEEN-A JUDICIAL DISTRICT


                 NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA         )
                                )
         v.                     )      From Cabarrus
                                )
LISA LOUISE GREENE              )

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

                  BRIEF OF DEFENDANT-APPELLANT

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                       QUESTIONS PRESENTED

    I.   WHETHER THE TRIAL COURT ERRED, ABUSED ITS
    DISCRETION, OR COMMITTED PLAIN ERROR IN FAILING
    TO REDACT MANNER OF DEATH IN THE SUPPLEMENTAL
    REPORTS ON CAUSE OF DEATH AS PUBLISHING THE
    TESTIMONIAL OPINIONS OF A NON-TESTIFYING WITNESS
    VIOLATED MS. GREENE’S RIGHTS TO CONFRONTATION,
    CROSS-EXAMINATION, AND STATUTORY DISCOVERY, AND
    POSED THE DANGER THAT THE JURY WOULD BE MISLED BY
    UNDULY PREJUDICIAL EVIDENCE?

    II. WHETHER THE COURT ERRED IN OVERRULING PRIOR
    DISCOVERY   ORDERS  THAT   SET   A DEADLINE  FOR
    PRODUCTION OF ATF EVIDENCE AND A SANCTION IN THE
    EVENT THE STATE FAILED TO COMPLY?

    III. WHETHER THE TRIAL COURT ERRED OR ABUSED ITS
    DISCRETION FOR FAILING TO REMEDY THE STATE’S
    FAILURE TO PROVIDE COMPLETE WITNESS STATEMENTS OR
    TO TIMELY DISCLOSE DISCOVERABLE MATERIAL?

    IV. WHETHER THE TRIAL COURT ERRED OR ABUSED ITS
    DISCRETION IN FAILING TO FIND THAT THE STATE’S
    ENDORSEMENT OF FOUR ADDITIONAL EXPERT WITNESSES
    DURING TRIAL CONSTITUTED A DISCOVERY VIOLATION OR
    PROVIDING AN ADEQUATE REMEDY TO ENABLE DEFENSE
    COUNSEL TO PREPARE A CASE?
                                      2

     V. WHETHER MS. GREENE WAS DENIED A FAIR TRIAL BY
     PERVASIVE PROSECUTORIAL MISCONDUCT?

     VI. WHETHER   THE   TRIAL   COURT   ABUSED  ITS
     DISCRETION IN PERMITTING CAPTAIN SMITH TO OFFER
     HIS OPINION AS TO THE POINT OF ORIGIN OF THIS
     FIRE?

     VII. WHETHER THE TRIAL COURT ERRED IN ADMITTING
     MS. GREENE’S POST-ARREST STATEMENTS ON THE GROUND
     THAT THE STATEMENTS WERE INVOLUNTARY?

                          STATEMENT OF THE CASE

     On 30 January 2006, the Grand Jury of Cabarrus County

returned bills of indictment charging Lisa Greene with two

counts    of    murder,   one   count     of   first-degree    arson,   one

count of possession of less than ½ ounce marijuana, and one

count of possession of drug paraphernalia.              (Rp. 6-10)1     The

cause came on to be capitally tried at the 8 October 2007

Session    of      the    Cabarrus    County      Superior     Court,   the

Honorable W. Robert Bell presiding.                 The jury found Ms.

Greene    guilty    as    charged    on   a    felony-murder   theory   and

recommended that life sentences be imposed.                  (Rp. 343-363)

On 8 February 2008, Judge Bell arrested judgment on first-

degree arson, consolidated the misdemeanor judgments into a

first-degree murder judgment, and imposed consecutive terms

of life without parole.             (Rp. 366-370)      Oral and written




1
 The Record on Appeal will be referred to as “R.” Volumes of pre-trial
hearings will be referred to alphabetically, i.e. “Vol. A.” Volumes of
trial proceedings will be referred to numerically, i.e. “Vol. 1.”
                                  3

Notices of Appeal were given on 8 February 2008.            (Rp. 371-

372; Vol. 67Tp. 14560)

         STATEMENT OF GROUNDS FOR APPELLATE REVIEW

    This appeal is taken pursuant to N.C.G.S. §15A-1444(a)

from a final judgment of the superior court.

                   STATEMENT OF THE FACTS

    Eleven-year-old      Darren       Macemore     and   nine-year-old

Addison Macemore died of carbon monoxide poisoning due to a

fire in their Midland, North Carolina mobile home on 10

January 2006.     (Vol. 29Tp. 6610; Vol. 32Tp. 7345; Vol.

33Tp. 7465)   Their mother, Lisa Greene, was arrested on 13

January 2006 and charged with murder.            (Vol. 35Tp. 7977)

    On the early morning of 10 January, Addie Bell-Diss

heard her dogs barking outside her Midland home.                After

listening to the dogs for fifteen to twenty minutes, Bell-

Diss went outside to investigate.          She saw a woman on the

ground near her house.      (Vol. 26Tp. 6124-6125)           Bell-Diss

was unable later to recall if the woman, Lisa Greene, told

her that her house was on fire, her kids were inside, and

to call 911 (Vol. 26Tp. 6180), although both she and Sgt.

Wensil wrote statements early that morning recounting that

Ms. Greene did.   (Vol. 25Tp. 5983, 6024, 6050, 6055)           Bell-

Diss was certain that Ms. Greene said that she hurt her

ankle and lost her phone.         (Vol. 26Tp. 6125)          Bell-Diss
                                     4

went back inside, called 911 at 1:57 a.m., and reported

that a lady said she had twisted her ankle.                    (Vol. 25Tp.

5903, 5987)

      When   Bell-Diss     went   back    outside,    the     911   operator

could hear Ms. Greene screaming, but could not understand

what she was saying.           (Vol. 25Tp. 5929, 5931)          When Bell-

Diss approached Ms. Greene and told her she had 911 on the

phone, the operator heard Ms. Greene say that her house was

on fire and her children were inside.                 (Vol. 25Tp. 5929,

5989)     The 911 operator considered the delay in reporting

the fire to be unusual, thought it obvious that Ms. Greene

should have gotten help for her children sooner, and opined

that she had failed to act according to societal rules.

(Vol. 25Tp. 5909, 5974, 5975, 5978)

      Firemen responded to Ms. Greene‟s home.                  (Vol. 24Tp.

5732-5733; Vol. 25Tp. 5812-5814)            Firefighter James Howard

was flagged down and directed to attend to Ms. Greene, who

was sitting in a ditch yelling, waving her arms, and making

noises.      (Vol. 24Tp. 5733-5735,         5738)      Howard       asked if

children     were   in   the   house.     Ms.    Greene      answered   yes.

(Vol. 24Tp. 5736)         Ms. Greene screamed, “They‟re doing it

wrong, they‟re doing it wrong.”            Howard did not understand

who   the    comment     was   directed    to.       (Vol.    24Tp.     5735)

Although Mr. Howard wrote in his report that Ms. Greene was
                                         5

screaming and crying (Vol. 24Tp. 5780), over time he came

to believe, after talking to friends and co-workers, that

her actions were “theatrics” and that he had not seen her

crying.      (Vol. 24Tp. 5761; Vol. 25Tp. 5801-5802)

      When       EMS    arrived,     Howard       went    to   the    fire     scene.

Firemen were about to enter the home.                          (Vol. 25Tp. 5738,

5801)      Howard broke the storm door to enable firemen to

carry a hose inside and broke out all of the windows to

increase ventilation.              (Vol. 25Tp. 5739-5741)              Due to the

grade of the lot, he could not reach the children‟s window

and had to knock it out with a ladder.                     (Vol. 24Tp. 5744)

      When the first firemen arrived, no fire was coming

from the house and little smoke was visible.                           (Vol. 25Tp.

5814;     Vol.    50Tp.    11235)       Later       arriving       firemen      saw    a

column of smoke corresponding to the location of a kitchen

skylight.         (Vol. 50Tp. 11211, 11234)                    When   the      firemen

entered, floor to ceiling flames engulfed an alcove, which

was   a   small        hallway   housing      a    wicker      baker‟s       rack     of

children‟s       books    and    the   doors       into    Daniel     and      Addison

Macemore‟s bedrooms.             (Vol. 25Tp. 5818, 5837; Vol. 29Tp.

6816)     Flames were also coming out of the alcove into the

kitchen.         (Vol. 25Tp. 5837)            The intensity of the heat

indicated        that   the   fire     had    been       burning     for   a   while.

(Vol. 25Tp. 5819)             Captain Brian Smith of the Kannapolis
                                          6

Fire Department thought that opening the front door had

added air into the house and enabled the fire to kick back

up. (Vol. 25Tp. 5812, 5819)

    Captain      Smith     noted      that          the    door    into     Addison‟s

bedroom was completely burned away and the position of the

door hinges indicated that the door had been open.                                 (Vol.

25Tp. 5842)        He located both children in                       that    bedroom:

Addison Macemore was sitting on her bed leaning against a

wall and Daniel Macemore was lying face down on the floor

just inside the doorway.                  (Vol. 24Tp. 5748; Vol. 25Tp.

5820-5821)       Both were dead.              (Vol. 5746)            An overturned

metal   candlestick      lay    three         to     six    inches    from     Daniel

Macemore‟s body.         (Vol. 30Tp. 7024)                  Although Daniel was

lying on burned carpet and fire debris, his clothing was

not burned.      (Vol. 31Tp. 7125; Vol. 52Tp. 11728, 11733)

    Captain      Smith    thought,        due       to     the    location    of    the

bodies,   that    something         bad       had    happened       and     that    the

children had not tried to escape.                         (Vol. 25Tp. 5821-5823)

Unaware   that    Daniel       Macemore         had       kicked    holes     in    the

bedroom wall during the fire (Vol. 25Tp. 5849; Vol. 31Tp.

7122; Vol. 40Tp. 9454), Captain Smith testified that he had

never   before    been    to    a    fire       scene       where    the     deceased

victims had been drugged.            (Vol. 25Tp. 5850)
                                       7

      Paramedics Kelly Coulter and Christie Brown attended

to Ms. Greene.       She was half sitting and half lying on the

ground, screaming incoherently, and waving her arms. (Vol.

24Tp. 5595)     She repeatedly screamed, “Get my kids, get my

young‟uns.”        (Vol. 24Tp. 5595, 5598, 5621)                     Ms. Greene

talked about a candle and repeatedly asked, “Why did I

light the candle?”          (Vol. 24Tp. 5604, 5636)                 She told Ms.

Coulter, “Daniel was paranoid about candles, so I knew he

would blow it out.          Why did I light that candle, why did I

fall asleep?”        (Vol. 24Tp. 5616)           Ms. Brown recalled Ms.

Greene saying that the children were watching a movie and

lit   a   candle    in   the   room.       She    said       that    Daniel   was

paranoid about candles, so she knew he would blow it out.

She fell asleep in the recliner and was awakened by the

smoke alarm.       She told the kids to get in the corner of the

room and wait.           The home phone was inside the bedroom.

When she got outside, she dropped her phone.                    She said that

she beat on a neighbor‟s door, but they did not wake up.

(Vol. 24Tp. 5683-5684)

      Ms.   Greene       became   hysterical          when    told     that   the

children    were    dead.      She   seemed      to    be    crying,    but   Ms.

Coulter could not see any tears.              Ms. Coulter talked to Ms.

Greene about going to the hospital.               Ms. Greene kept asking

if the children were dead.             When told that they were, she
                                         8

again   became       hysterical.       (Vol.        24Tp.    5606-5607)        Ms.

Greene asked Ms. Coulter if she thought insurance money

would be enough to fix up the house so that her kids could

come back when they were better.                    (Vol. 24Tp. 5637, 5640)

Though Ms. Coulter thought that Ms. Greene‟s reaction to

being told that her children were dead was appropriate, by

trial she considered the reaction to have been “theatrics”

and the hysteria to have been contrived.                     (Vol. 24Tp. 5644)

Ms.   Brown    had    also     thought       that    Ms.    Greene‟s    repeated

requests      to   her   to    get   the     children       were    appropriate.

(Vol. 24Tp. 5716)             At trial, Ms. Brown thought that Ms.

Greene did not “genuinely” point to her house and got more

hysterical when more people were around.                    (Vol. 5687, 5700)

      Deputy James Moreau saw Ms. Greene rocking back and

forth repeating, “Go get my young‟uns.”                      (Vol. 25Tp. 5861)

After being told that the children were dead, Ms. Greene

kept repeating that request.                 In Deputy Moreau‟s opinion,

Ms. Greene was not impaired.                  (Vol. 25Tp. 5861)           At the

time, he thought that Ms. Greene was genuinely concerned

about her children.           After discussing the matter later with

Sgt. Wensil, he decided that she was not as upset as she

should have been.        (Vol. 25Tp. 5880, 5894-5895)

      The   paramedics        called     emergency         room    physician   Dr.

Chen for permission to chemically sedate Ms. Greene because
                                        9

she was so upset.        (Vol. 26Tp. 6210, 6276)               When Ms. Greene

arrived    for   treatment,       she    was    crying      hysterically          and

wanted to go find her children.                    (Vol. 27Tp. 6282)              Dr.

Chen noted that Ms. Greene had minimal soot on her face, a

first-degree burn on the bottom of one foot and toe area,

and   nothing    suggesting       significant         exposure       to    fire    or

smoke.    (Vol. 27Tp. 6216, 6223, 6228)                 Ms. Greene told him

that a candle had been burning, she fell asleep in the

recliner, and that the candle must have tipped over and

started    the   fire.       (Vol.      27Tp.      6216,    6281)         Dr.    Chen

prescribed Ativan to calm               her   down.        (Vol. 26Tp. 6233,

6235)      Possible      side    effects      of    Ativan     are    confusion,

drowsiness, dizziness, fatigue, muscle weakness, and lack

of balance or coordination.             (Vol. 27Tp. 6295-6296)

      Cabarrus County Sheriff Detective Kevin Pfister and

SBI     Agent    Charles     Ghent      were       assigned     to        lead    the

investigation.      (Vol. 34Tp. 7863)              This was Pfister‟s first

death investigation (Vol. 57Tp. 12749) and Ghent‟s first

case as primary investigator.                   (Vol.      20Tp. 4905)           They

briefly met with Ms. Greene at the hospital and received

permission to search the house.               (Vol. 34Tp. 7870)

      Law enforcement noted at the house that school clothes

were laid out for each child.               (Vol. 31Tp. 7134, 7137)               Two

lunch    boxes   and   two      children‟s      book    bags    containing         an
                                     10

inhaler and other items were on the kitchen counter.                  (Vol.

30Tp. 7007, 7010-7013)          The book bags, which contained a

note, “Ms. Agnew, we need a new math sheet that‟s due on

Friday   so   Daniel    can    get   his    homework    done,”   were   not

seized   as    they    were     deemed      irrelevant     to    an   arson

investigation.         (Vol.    30Tp.      7018-7021)       Candles     were

located all over the house, including on tall stands in the

living room.       (Vol. 29Tp. 6795-6796; Vol. 30Tp. 7027) A

small amount of marijuana and seeds, a crusher, and metal

bowls were found in the master bathroom.                (Vol. 29Tp. 6811,

6814, 6878; Vol. 30Tp. 7080)               A camera was found in the

dining room and photographic equipment was located in the

master   bedroom   closet      and   an    outdoor     storage   building.

(Vol. 30Tp. 6972, 7059)

    SBI Agent Renee Mullis, who was certified as an arson

investigator in December 2005, assessed the fire scene on

10 January.     (Vol. 40Tp. 9398)           Ms. Mullis testified that

the point of origin can be determined by examining patterns

left behind by fire, heat, and smoke.                  (Vol. 41Tp. 9588-

9589)    Her method of examination was to start at the area

of least damage and proceed to the area of greatest damage.

(Vol. 40Tp. 9401)       The area of greatest damage in this fire

was in the alcove.      (Vol. 48Tp. 10855)
                                     11

    In part because of the degree of damage in the alcove,

Mullis concluded that the fire started in the alcove in the

area of the baker‟s rack and was caused by the application

of an open flame by human hands to combustible materials.

(Vol. 40Tp. 9540; Vol. 41Tp. 9677)                The open flame could

have been a lighter, match, or candle and the combustible

material the baker‟s rack, carpet, or anything flammable.

(Vol. 41Tp. 9540, 9581)             Ms. Mullis acknowledged that no

heat source existed in the alcove and that it was unlikely

that the heat source was a candle because no candlestick

was found in the alcove.       (Vol. 42Tp. 9878)

    In     Ms.   Mullis‟   opinion,       fire   in   the    alcove   lapped

under the header of Addison Macemore‟s door, burned the

bedroom ceiling, burned the bedroom door away, and melted

objects    within    the   room.      Fire   also     progressed      to   the

kitchen and melted the skylight.             (Vol. 40Tp. 9443, 9446-

9447)     She opined that if there had been any fire in the

bedroom, remnants of pillows or stuffed animals would have

been found.      She did not consider pieces of foam on the

bedroom floor to have been components of pillows or stuffed

animals and did not test to determine if a burning pillow

leaves remnants.       (Vol. 42Tp. 9789-9790)              She saw no fire

debris    in   the   bedroom   or    evidence    of    a    burnt   blanket.

(Vol. 41Tp. 9703-9704, 9706)              Ms. Mullis opined that the
                                            12

bedroom      door     had    been    closed,        as   she   saw    a    protected

pattern in the doorjamb.             (Vol. 41Tp. 9670)

       Ms. Mullis did not deem the candlestick on the bedroom

floor to be reliable because                      it could have been placed

there when the children‟s bodies were removed or moved in

fire suppression activities.                     (Vol. 41Tp. 9449; Vol. 42Tp.

9734)       She did not think the position of the bedroom door

hinges was reliable because firemen hit the alcove with a

full stream of water.                (Vol. 40Tp. 9466)               Although she

acknowledged that Daniel Macemore was aggressively active

during the fire (Vol. 40Tp. 9454; Vol. 42Tp. 9767), Ms.

Mullis thought that he would have been extremely burned and

charred if the fire had started where the candlestick was

found.       (Vol. 40Tp. 9484)

       Ms.     Mullis       visually        examined     the   candlestick        for

evidence that a candle had ever been on it and found none.

(Vol. 40Tp. 9511)              She visually examined the crawl space

for candle remnants or paraffin and found neither.                              (Vol.

41Tp. 9513)         Based on her visual observations, she decided

no further testing was necessary.                   (Vol. 30Tp. 7053)

       At     12:06     p.m.    on     10     January,     Pfister        and   Ghent

interviewed Ms. Greene.              (Vol. 34Tp. 7925)               She told them

that she lit two candles in Addison‟s room at about 7:30

p.m.     One candle was six inches tall and three inches in
                                   13

diameter and sat on a tall candleholder.               The other was a

tea candle on the dresser.             (Vol. 34Tp. 7884; Vol. 38Tp.

8748-8749)     The children watched a movie in Addison‟s room

and called their grandmother from about 8:15 to 8:30 p.m.

She checked on them at 10:00 p.m.              Addison was asleep and

Daniel, who was lying on pillows and blankets from his

room, was still watching the movie.            (Vol. 34Tp. 7884; Vol.

38Tp. 3751)        She checked again between 10:30 and 10:45.

She then sat in a recliner to watch television and fell

asleep.     She was awakened by screaming and the sound of the

smoke alarm.       (Vol. 34Tp. 7886; Vol. 38Tp. 8752-8753)              The

microwave read something between 1:15 to 1:20.               (Vol. 38Tp.

8754; Vol. 39Tp. 8987)         She went to the bedroom door, which

looked red and hot.       The doorknob was too hot to touch, so

she opened the door twelve to eighteen inches using the

blanket she was wrapped in.            (Vol. 34Tp. 7886; Vol. 38Tp.

8756)     She saw that the tall candle was on Daniel‟s pillows

and his blankets and the carpet were on fire.                    Fire was

moving toward the bed and toward the door.                  (Vol. 34Tp.

7886; Vol. 38Tp. 8758-8759)            She told Daniel to get on the

bed   and   that   she   was   going    to   get   help.   She   used   the

blanket to step on flames at the door, but it was too hot

and she burned her foot.         She jerked her foot away and the

blanket came out into the alcove.              (Vol. 34Tp. 7886; Vol.
                                     14

38Tp. 8761-8762)       She grabbed her purse containing a cell

phone and ran out.         She tripped and fell outside, causing

her purse to open and contents to spill out.                      She yelled

for neighbors Phillip and Tamara for about ten minutes.                     A

woman then came out of her house.                She told her, “Help,

ma‟am.    Help.     Don‟t leave.          I need help.      Call 911.      My

house is on fire and the kids are up there.”                  (Vol. 34Tp.

7886-7887; Vol. 35Tp. 8185; Vol. 38Tp. 8765-8773)

       Detective    Pfister   did    not     understand     why    a   mother

would light a candle in a room occupied by children and why

Daniel was sleeping on the floor.               (Vol. 34Tp. 7893)          He

“read between the lines” and understood Ms. Greene to have

said that she burned her hand.                 (Vol. 36Tp. 8229-8230)

Pfister had no recollection of Ms. Greene saying, “I was

trying to put the fire out, the blanket caught on fire, got

caught on foot and came back out burned,” although Agent

Ghent‟s notes recited that statement.               (Vol. 8235)         Agent

Ghent thought Ms. Greene‟s statement that she told Bell-

Diss about the fire was false (Vol. 38Tp. 8773), though

Bell-Diss had admitted to Pfister that Ms. Greene may have

said   that.       (Vol.   33Tp.    7419;    Vol.   37Tp.    8570)       They

reviewed the statement with Agent Mullis, who told them

that the fire started in the alcove and there was little to

no fire in the bedroom.       (Vol. 20Tp. 4712, 4727, 4927)
                                  15

    On   11     January,    Bureau     of    Alcohol,   Tobacco,   and

Firearms (ATF) Agent Van Tuley examined the fire scene at

Mullis‟ request.     (Vol. 41Tp. 9633)          She also asked Agent

Tuley to gather information for computerized fire modeling.

(Vol. 41Tp. 9633; Vol. 48Tp. 10950-10951)

    Interviews of the children‟s teachers and Ms. Greene‟s

acquaintances    were      ongoing.         (Vol.   20Tp.    4715-4718)

Witnesses related derogatory comments Ms. Greene made about

her children (Vol. 28Tp. 6392, 6446; Vol. 33Tp. 7568, 7605;

Vol. 34Tp. 7688, 7694), her complaints about being a single

mother (Vol. 28Tp. 6528; Vol. 29Tp. 6733; Vol. 34Tp. 7828),

and her regrets over having children. (Vol. 28Tp. 6489,

6499; Vol. 29Tp. 6676-6677, 6697, 6699; Vol. 33Tp. 7633;

Vol. 34Tp. 7714)        Some thought that Ms. Greene was angry

that she could not do as she pleased, though all were aware

that she could go wherever she wanted as her family and the

children‟s father also cared for the children.              (Vol. 28Tp.

6493, 6567; Vol. 34Tp. 7848)           Her boyfriend Dennis Beckham

advised that Ms. Greene‟s photography business required her

to frequently work weekends and to take student photos at

schools located far from her home.           (Vol. 33Tp. 7551, 7558)

She always brought work with her when they saw each other.

(Vol. 33Tp. 7544)
                                    16

      Darren Macemore dated Ms. Greene beginning in 1994.

Daniel was born in 1995 and Addison in 1997.                (Vol. 29Tp.

6610)      He felt that Ms. Greene worked hard and did a good

job supporting the children.          (Vol. 29Tp. 6639, 6649, 6661)

Mr. Macemore recounted an adverse reaction Daniel suffered

once to allergy medication and opined that Daniel could not

have even made it to the window if he was medicated.                (Vol.

29TP. 6670)     In his opinion, a mother should burn up trying

to save her children.        (Vol. 29Tp. 6665)

      No    member   of    Ms.   Greene‟s   family   was    interviewed.

(Vol. 56Tp. 12520)          They could have advised investigators

that Daniel frequently slept on the floor of the living

room or his sister‟s bedroom with all of his pillows around

him   (Vol.    56Tp.   12415),     that   both   children    told   their

grandmother that night about candles burning in the bedroom

(Vol. 56Tp. 12433-12434), and that Ms. Greene habitually

laid out the children‟s clothes and made their lunches the

night before school. (Vol. 50Tp. 11304)

      By 12 January, all investigating officers agreed that

the fire started in the alcove.              (Vol. 41Tp. 9540) The

collective theory was that Ms. Greene drugged the children

before setting the fire.           (Vol. 36Tp. 8445)        Pfister and

Ghent decided to arrest Ms. Greene the next day.                    (Vol.

39Tp. 9034, 9210)         They feared Ms. Greene would not talk to
                                17

them if she thought she was a homicide suspect or realized

she was being interrogated, so they devised a ruse to get

her to the Sheriff‟s Department.         (Vol. 20Tp. 4751; Vol.

39Tp. 9048; Vol. 57Tp. 12751-12752)        Pfister felt the use

of deception was morally justifiable.           (Vol. 36Tp. 8283)

He decided to call Ms. Greene and tell her that she needed

to come in to sign papers for the release of the trailer,

though no paperwork was necessary.      (Vol. 34Tp. 7929)

     Pfister called Ms. Greene and asked her to come in to

sign paperwork documenting transfer of the house.              (Vol.

57Tp. 12846)     Ms. Greene sounded tired and responded, “I‟m

not able to drive up there.”          Pfister asked if a family

member could drive her as it needed to be done that day

because he was leaving on vacation.       (Vol. 36Tp. 8292; Vol.

57Tp. 12846-12847)    He had no vacation plans.       (Vol. 36Tp.

8301)    After    consulting   with   family,   Ms.   Greene   told

Pfister that she could be there within thirty minutes to an

hour.   (Vol. 57Tp. 12848-12849)

     Pfister told Lt. Parker that Parker needed to separate

Ms. Greene from her family so that he could get Ms. Greene

into an interview room.        They decided that Parker would

distract the family by asking their names and addresses.

(Vol. 57Tp. 12755)
                                      18

       Ms. Greene had slept and eaten very little since the

fire   and      was    taking    Ativan.     (Vol.   56Tp.    12508-12509,

12532, 12535; Vol. 57Tp. 12641)              She looked exhausted when

family members helped her to the car and drove her to the

Sheriff‟s Department.            (Vol. 56Tp. 12558)      Her father, Ray

Greene, joined them there.           (Vol. 57Tp. 12669)

       Pfister and Parker met the family and escorted them

inside.      (Vol. 20Tp. 4752)        Parker called the family into a

room and began taking their names and phone numbers.                    (Vol.

56Tp. 12564,          12573)     Pfister took Ms. Greene through a

doorway,     which      locked   behind    them.     (Vol.    57Tp.    12568,

12758)    Her    family    immediately     became    upset.    (Vol.    57Tp.

12756)     Mr. Greene told Parker that his daughter was in no

shape to be interviewed.              Parker told him she was just

being taken back to sign a paper and it would not take but

a minute.       (Vol. 22Tp. 5253; Vol. 57Tp. 12673-12674)

       Mr. Greene called attorney Cecil Jenkins, who asked to

speak with Lt. Parker.           (Vol. 57Tp. 12674)      Parker told him

that Ms. Greene was in a non-custodial interview and he

would not be permitted to talk to her.                (Vol. 57Tp. 12725,

12763)     Ms. Greene was not, in the opinion of the officers,

free to leave.         (Vol. 36Tp. 8278; Vol. 57Tp. 12751)

       At 12:30 p.m., Detective Pfister began going over a

form with Ms. Greene, but did not complete it as he had
                                  19

never intended to release the property.           He was keeping up

the deception to make Ms. Greene think that was why she was

there.   (Vol. 35Tp. 8075; Vol. 36Tp. 8335-8336) Ms. Greene

sat slumped over with sunglasses on.             (Vol. 35Tp. 7934)

Agent Ghent came in and spent forty-five minutes reviewing

the 10 January statement.         Ms. Greene did not add any new

information.      Pfister   and   Ghent   then   asked    “clarifying”

questions about the statement.         (Vol. 35Tp. 7985)

    Ms. Greene repeatedly told them that she “didn‟t kill

her young‟uns.”     (Vol. 35Tp. 7969, 8075)         She twice stood

up, said, “Get my daddy in here,” and walked out of the

room.    Pfister and Ghent followed and re-engaged her in

conversation.     They started walking back to the interview

room and Ms. Greene followed their voices back into the

room.    (Vol. 35Tp. 7964-7965; Vol. 38Tp. 8799-8800)             When

Ms. Greene left again at 2:48, Pfister believed that she

would actually leave.       He signaled to Parker and Waller to

arrest her.    (Vol. 35Tp. 7976-7977, 8076)

    Ms. Greene‟s family was able to see her coming down

the hallway.      She looked frightened, upset, and a little

out of control.      (Vol. 56Tp. 12575, 12592)            Todd Greene

heard an officer say, “So tell us how the fire started.”

Ms. Greene screamed back at him, “I told you, I don‟t know

how the fire started.”       (Vol. 57Tp. 12649)          She cried and
                               20

screamed, “I didn‟t kill my young‟uns.”    (Vol. 57Tp. 12650)

Ms. Greene was told she was under arrest for murder and

arson (Vol. 35Tp. 7977) and her family was escorted out of

the area.     (Vol. 57Tp. 12650)    Mr. Jenkins, who had been

retained by the family, arrived to see Ms. Greene, but was

not permitted to see her.      He could not remember another

time in thirty-six years of practice when he was denied

access to a client.    (Vol. 57Tp. 12720, 12726, 12735)

    Pfister testified that while they were in the hallway,

Ms. Greene said she would tell them what really happened.

(Vol. 35Tp. 7978)     In the interview room, Pfister orally

Mirandized Ms. Greene and she agreed to Ghent writing out a

statement.    (Vol. 35Tp. 7994; Vol. 38Tp. 8815)

    The written statement recited that Ms. Greene woke up

groggy from some drowsy pills that she and the children had

taken.     She did not know why she woke up.       She wrapped a

blanket around herself and walked into Addison‟s bedroom.

Daniel was asleep on the floor and Addison was asleep on

the bed.     When she turned, she caught her blanket on fire.

She walked out, closed the door, dropped the blanket by the

baker‟s rack, sat in the recliner, and fell asleep.          She

was awakened by the smoke detector.    The bookcase was about

halfway burned and the microwave said 1:15 or 1:16.          She

grabbed her purse and left.     Once outside, she dropped the
                                            21

phone and lay there crying, coughing, and screaming for her

neighbor Phillip.            When a woman came outside, she did not

tell her about the fire.              She felt that the whole thing was

a dream.       (Vol. 35Tp. 7996-8000)

       Ms. Greene then asked Agent Ghent if he was going to

arrest her.       (Vol. 21Tp. 5067)                Ghent said he would not be

the one to arrest her, but that she would face charges at

some point.       She asked if she would be able to go to the

children‟s funeral.             Ghent said he would not prevent her

from going.       (Vol. 35Tp. 8023; Vol. 38Tp. 8835)

       Pfister    and       Ghent     did        not    feel        that    they    had   a

complete statement.            As they had been doing all afternoon,

they    left    the    interview      room        to     brainstorm         with    others

about how to get Ms. Greene to say something else.                                   (Vol.

57Tp. 12667)          When they returned and questioned Ms. Greene

again, Ghent wrote out a second statement.                                 The statement

recited    that       Ms.    Greene    had        not        told    the    whole    truth

before.        The statement recited that Ms. Greene went into

Addison‟s bedroom and saw that a little blanket was                                       on

fire.     She caught the blanket around her on fire, walked

out,    closed    the       door,   and     put        the    blanket      down     by   the

bottom two shelves of the baker‟s rack, causing the rack to

catch on fire.          Ms. Greene said that it was a small fire

and she just wanted to forget about it.                               She sat in the
                                     22

recliner wanting to go to sleep and not wake up.                 She found

it too hard to breathe and left.          (Vol. 35Tp. 8027-8028)

       Parker and Waller then took Ms. Greene to booking.

(Vol. 57Tp. 12808)         Ms. Greene told Parker that she did not

“kill her young‟uns,” that the fire was inside the bedroom,

that she had tried to put the fire out with a blanket and

the fire spread into the hall, and that Pfister and Ghent

had twisted her words and pressured her to say that she

started the fire.        (Vol. 35Tp. 8041; Vol. 57Tp. 12809)

       None of Ms. Greene‟s many statements that she “did not

kill her young‟uns” were recorded by any officer or Mullis.

(Vol. 22Tp. 5225; Vol. 35Tp. 8071; Vol. 38Tp. 8804-8805;

Vol.    57Tp.   12783,    12785)     Pfister    took    no    notes   on   13

January and relied on his memory to relate Ms. Greene‟s

statements.      (Vol. 35Tp. 8053, 8067)          Pfister never asked

Ms. Greene how the blanket caught on fire.                    (Vol. 37Tp.

8538)     No    question    was    recorded,   though    no    post-arrest

statement was spontaneously made.              (Vol. 36Tp. 8456; Vol.

37Tp. 8506)      When Ms. Greene said that the fire started in

the bedroom, they repeatedly told her that the fire started

in the alcove and that the scientific investigation showed

she was not being truthful.          (Vol. 37Tp. 8510-8511, 8514)

       The ATF conducted various tests related to this fire.

Tuley tipped a candle over on a blanket and was able to
                                      23

ignite the blanket, causing carpet underneath the blanket

to ignite.       The fire on the carpet did not initially move

evenly in all directions.            (Vol. 45Tp. 10318, 10958)            The

maximum flame height in the test was twenty inches and the

maximum width of the flames ten inches.               (Vol. 45Tp. 10313)

      In pillow burning tests, flames quickly reached thirty

inches high       and    spread in all directions.              (Vol. 45Tp.

10331-10332)         Once consumed by fire, the pillows left no

trace of their existence.             (Vol. 46Tp. 10515)           Dr. David

Sheppard, an ATF fire engineer, determined that a burning

pillow and blanket could support a 100 kilowatt fire. (Vol.

45Tp. 10333) Twenty kilowatts is all that is needed                         to

produce a fully involved fire.              (Vol. 51Tp. 11380)

      Blanket tests showed that fire quickly spreads up a

suspended blanket and that a person would drop a burning

blanket    within       twenty    seconds    to   avoid   flames      touching

their fingers.        (Vol. 45Tp. 10336)          A fire at the bottom of

a bookcase would likewise cause vertical flames to rapidly

form.    (Vol. 45Tp. 10350-10351)

      The ATF conducted full scale simulations.                       Although

the     mock    trailers    did    not      exactly   mirror    the    actual

trailer,       Dr.    Sheppard      deemed     conditions      sufficiently

similar    to    produce    valid    results.         (Vol.    45Tp.    10368,

10374, 10377; Vol. 46Tp. 10540, 10549; Vol. 49Tp. 11166)
                                24

    In two tests, a fire was ignited in the bedroom.               Fire

breached a closed bedroom door within fifteen to twenty

minutes and ignited a baker‟s rack in the alcove. (Vol.

45Tp. 10393)    In the third test, fire was ignited in the

alcove.   It breached the bedroom door, but did not produce

as much melting or floor damage in the bedroom as existed

at the scene.    (Vol. 45Tp. 10393-10394, 10420; Vol. 47Tp.

10706, 10723)    The kitchen skylight melted in whole or in

part in all three tests, with the alcove test producing

more damage than existed at the scene. (Vol. 45Tp. 10394,

10547-10549; Vol. 48Tp. 10827)

    Dr.    Sheppard   opined   that   a   burning   blanket   on    the

floor adjacent to Addison‟s door would have breached the

door and spread a fire to the baker‟s rack.             (Vol. 41Tp.

9703)     He did not believe that occurred, as he understood

Ghent‟s 10 January notes to mean that Daniel‟s pillow and

blanket had been at Addison‟s bed.        (Vol. 45Tp. 10391; Vol.

46Tp. 10511-10512; Vol. 47Tp. 10697)        If a fire had ignited

next to Addison‟s bed, that meant that the candle was not

in the location Ms. Greene described.          (Vol. 47Tp. 10697)

Relying on Mullis‟ determination that the door was closed,

Dr. Sheppard did not think it credible that anyone would

have reached over flames to close the bedroom door.            (Vol.

45Tp. 10383, 10444-10445)
                                             25

       Agent   Tuley       did    not    think          it    credible         that     anyone

would have opened the bedroom                       door       after       a smoke alarm

activated and knew that nothing inside the room would have

been    visible.          (Vol.       48Tp.       10961-10962)              Dr.     Sheppard

acknowledged        that   visibility             into       the       bedroom    was    still

good after the smoke alarm activated.                              (Vol. 45Tp. 10436)

Neither Sheppard nor Tuley were told that more than one

pillow was on the floor, but Tuley opined that additional

pillows would not have made any difference.                                    (Vol. 47Tp.

10702; Vol. 49Tp. 11126)                  Agent Tuley did not think it

significant      that      the    alcove          test       produced       less        bedroom

damage than existed at the scene and opined that the same

level of damage would have been produced had the test been

conducted      differently.             (Vol.        48Tp.         10988;        Vol.    49Tp.

11070)     Tuley‟s opinions were unaffected by what firemen at

the scene reported.          (Vol. 50Tp. 11235)

       John Lentini examined the fire scene in March 2006 and

reviewed      the   ATF     test       data       and    firefighter             statements.

(Vol. 51Tp. 11374, 11380, 11409)                         Mr. Lentini is an expert

in     fire    investigation             chemistry,                a     certified        fire

investigator,        chair        of     the        National            Fire     Protection

Association (NFPA) task force on origin determination, and

co-author of        the    NFPA 921          Guide for Fire and Explosive

Investigation,       which       is    the        national         standard       for     arson
                                   26

investigations.         (Vol.   51Tp.   11349,    11358,   11372;       Vol.

52Tp. 11622-11623)

    Mr. Lentini noted that the area of lowest and deepest

char is the default point of origin, but is not always the

actual point of origin.          The area of lowest and deepest

char in this fire was in the alcove.             The ATF tests proved

that whether a fire began in the bedroom or in the alcove,

the lowest and deepest char was in the alcove.                     In Mr.

Lentini‟s opinion, a small fire started in the bedroom,

which produced a large fire in the alcove.                     (Vol. 51Tp.

11397-11398, 11401-11402, 11490)

    Mr. Lentini disagreed with Mullis that no evidence of

a candle existed at the scene.           Candles were found in every

room of the trailer (Vol. 30Tp. 7027) and no three-legged

candlestick in the house was missing a candle.                   Finding a

candlestick in Addison‟s bedroom was evidence of a candle.

(Vol.   51Tp.   11500-11501)       After    a    fire,   one    would   not

expect to see wax on a carpet with the naked eye or candle

remnants.       (Vol.   52Tp.   11544,     11536-11637)    Mr.     Lentini

collected the bedroom floor vent and carpet samples from

burned areas in the bedroom and tested them for wax.                    Wax

was found on all of the carpet samples and the floor vent.

(Vol. 51Tp. 11503-11504; Vol. 52Tp. 11543)
                                   27

    Mr. Lentini noted that the ATF alcove test took only

ten minutes and forty-eight seconds and that Dr. Sheppard

acknowledged that nothing more was going to happen to that

fire.    When firemen entered the scene, however, the alcove

was fully involved in a floor to ceiling fire.                 Since the

911 call was placed at 1:57 a.m., firemen began arriving

from 2:12 to 2:16 a.m., and entry was delayed while firemen

suited up, the actual fire had to have burned longer than

the ATF alcove fire.         (Vol. 51Tp. 11510, 11520-11521)          In

the bedroom tests, it took fifteen to twenty minutes for

fire to reach the alcove.        (Vol. 45Tp. 10393)       The duration

of the bedroom test fires more closely mirrored the actual

time frames involved.        (Vol. 51Tp. 11510)

    Mr. Lentini testified that a fire investigator must

identify a competent ignition source.            If none is found at

the hypothetical point of origin, the investigator can only

fall back on the notion that arson was committed by use of

an open flame.      (Vol. 52Tp. 11554)

    Dennis     Smith,   an    expert     in   fire   investigation   and

methodology (Vol. 52Tp. 11703), testified that historically

fire investigators relied on negative corpus methodology:

reaching    cause    conclusions    in    the   absence   of    physical

proof.     (Vol. 52Tp. 11701)      Agent Mullis utilized negative

corpus methodology, as she could not identify an ignition
                                        28

source at her chosen point of origin.                       (Vol. 52Tp. 11767;

Vol. 53Tp. 11792)      An ignition source did exist where the

only eyewitness placed the fire‟s origin:                       a candlestick

and wax on the bedroom floor.                 (Vol. 53Tp. 11792)          In Mr.

Smith‟s opinion, the ignition source of this fire was a

candle in the bedroom          and the first fuels               ignited were

bedding and carpet.     (Vol. 53Tp. 11781-11782)

    Mr. Smith noted that the bedroom floor had to have

been damaged before Daniel Macemore came to rest on it, as

his clothing was intact.            In the ATF bedroom tests, the

bedroom   floor    damage    was    complete          before   the    fire   even

reached the alcove.     (Vol. 52Tp. 11728-11729, 11733)

    Douglas       Carpenter,       an        expert    in     fire    protection

engineering    and    methodology,             fire     reconstruction        and

modeling, and fire investigation (Vol. 53Tp. 11902), opined

that Dr. Sheppard did not utilize the scientific method,

which requires a testable hypothesis that best explains all

available data.      If a person fails to use the scientific

method, they      can simply make up anything.                       (Vol. 53Tp.

11924-11925, 11930)         While Dr. Sheppard‟s idea of testing

the 10 January statement was valid, the statement was not

in fact tested since the bedroom door was not opened, the

bedroom fire was not attempted to be suppressed, and no

blanket was dragged out of the bedroom.                     (Vol. 53Tp. 11931-
                                 29

11933)   Even without testing the statement, and conducting

tests in structures dissimilar from the trailer, the ATF

tests still produced a fire that spread from the bedroom to

the alcove.     (Vol. 53Tp. 11935, 11958-11959; Vol. 54Tp.

12030-12031, 12045, 12048)      The ATF data documented that if

the door was opened after the smoke detector activated, the

fire was too hot for the children to leave the room or Ms.

Greene to enter.     (Vol. 54Tp. 12162)

    The Office of the Chief Medical Examiner and NMS Lab

documented    that   both   children    had   diphenhydramine,    the

active   ingredient    in   antihistamines,      in   their   bodies.

(Vol. 40Tp. 9349, 9362, 9363, 9372)           Daniel Macemore had a

trace amount within the normal therapeutic dose and Addison

Macemore had an amount within the normal therapeutic dose.

(Vol. 40Tp. 9354-9355 9372)           Neither was consistent with

being a “large” amount.       (Vol. 40Tp. 9374)        Dr. Sullivan,

who performed the autopsy of Daniel Macemore, opined that

diphenhydramine played no role in the children‟s deaths.

(Vol. 33Tp. 7458, 7490)

    Deliberations began on 25 January 2008.              (Vol. 62Tp.

13665)   The jury advised the court on 30 January that it

could not reach unanimous verdicts. (Vol. 63Tp. 5)               Later

on 30 January, the jury found Ms. Greene guilty of felony

murder, arson, and the two drug charges.              No verdict was
                                        30

returned on premeditated murder.                  (Rp. 343-345)      A juror

advised the court after polling that she had wanted to vote

for manslaughter, but was told by other jurors that she

could not do so.        (Vol. 64Tp. 13898)

                             STANDARDS OF REVIEW

    The applicable standards of review are set forth at

the beginning of each argument, defined as follows:

    Under       the     de   novo      standard,    the    reviewing      court

considers the matter anew and freely substitutes its own

judgment for that of the lower court.                   N.C. Department of

Environment & Natural Resources v. Carroll, 358 N.C. 649,

660, 599 S.E.2d 888, 895 (2004).

    “Abuse of discretion results where the court‟s ruling

is manifestly unsupported by reason or is so arbitrary that

it could not have been the result of a reasoned decision.”

State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 526

(1988).

    Plain      error     arises     when     evidence     admitted   deprived

defendant      of   a   fair   trial     or   concerned       “„something   so

basic,    so   prejudicial,       so    lacking    in   its    elements   that

justice cannot have been done.‟”                State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States

v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).
                                       31

       Whether    counsel       afforded      effective    representation

presents a question of law determined from review of the

record.    State v. Aiken, 73 N.C. App. 487, 326 S.E.2d 919

(1985).    When the record establishes that counsel failed to

act within the range of competency demanded of criminal

defense   attorneys       and    that,      absent   counsel‟s    deficient

performance,      a    reasonable      probability     exists    that   the

result    would        have     been     different,     the     defendant‟s

convictions must be reversed.                Strickland v. Washington,

466 U.S. 668, 80 L.Ed.2d 674 (1984); State v. Grooms, 353

N.C. 50, 540 S.E.2d 713 (2000).              A “reasonable probability”

of prejudice is one sufficient to undermine confidence in

the outcome.          Strickland, 466 U.S. at 694, 80 L.Ed.2d at

698.     If the record contains insufficient information on

which to resolve the claim, this Court should dismiss the

assignment of error without prejudice to raise the matter

anew in a motion for appropriate relief.                  State v. Davis,

158 N.C. App. 1, 582 S.E.2d 289 (2003).

                                  ARGUMENT

       I.   THE   TRIAL    COURT    ERRED,  ABUSED   ITS
       DISCRETION, OR COMMITTED PLAIN ERROR IN FAILING
       TO REDACT THE MANNER OF DEATH IN THE SUPPLEMENTAL
       REPORTS ON CAUSE OF DEATH AS PUBLISHING THE
       TESTIMONIAL OPINIONS OF A NON-TESTIFYING WITNESS
       VIOLATED MS. GREENE’S RIGHTS TO CONFRONTATION,
       CROSS-EXAMINATION, AND STATUTORY DISCOVERY, AND
       POSED THE DANGER THAT THE JURY WOULD BE MISLED BY
       UNDULY PREJUDICIAL EVIDENCE.
                                        32

       Assignments   of   Error  Nos.                 20-23,       108-109,
       Addendum to Record on Appeal2

       Standard of Review:

       The admission of          testimonial hearsay           over objection

presents     an   issue    of    law    reviewed      de   novo.       State   v.

Morgan,    359    N.C.    131,    154-155,      604    S.E.2d      886,   900-901

(2004).      Whether the State violated discovery obligations

is reviewed for abuse of discretion.                    State v. Cook, 362

N.C. 285, 294-295, 661 S.E.2d 874, 880 (2008).                            A trial

court‟s ruling on a Rule 403 objection is reviewed for

abuse of discretion.             State v. Mason, 315 N.C. 724, 731,

340 S.E.2d 430, 435 (1986).              Should the Court find that any

aspect of these issues was not preserved for appeal, the

matter     is     reviewed       for    plain     error      and     ineffective

assistance of counsel.             State v. Raines, 362 N.C. 1, 16,

653 S.E.2d 126, 136 (2007), cert. denied, __ U.S. __, 174

L.Ed.2d 601 (2009).

       Argument:

       Over objection, the trial court refused to redact the

recitations on the Supplemental Reports of Cause of Death

that   the      manner    of    each    child‟s    death     was     “homicide.”

(Vol. 33Tp. 7497-7504)            These opinions, rendered by a non-

testifying        witness,       fell     outside      the      constitutional

2
 A Motion to Amend the Record on Appeal was simultaneously filed with
the Brief to amend Assignments 20-23 and add Assignments 108 and 109.
                                       33

parameters     of     the     record   of    vital     statistics     hearsay

exception, N.C.G.S. §8C-1, Rule 803(9), were not disclosed

in     compliance     with     §15A-903(a),     and     had   such    minimal

probative     value     that     disclosure     posed     undue     risks   of

prejudice and jury confusion.               The sole issue in this case

was whether the children died as a result of accident or

homicide.      The     court‟s     refusal     to    strike   the    opinions

violated the Sixth and Fourteenth Amendments to the United

States Constitution, Article I, §§18, 19, and 23 of the

North Carolina Constitutions, and North Carolina statutory

law,     mandating     that     Ms.    Greene‟s       first-degree     murder

convictions be reversed.

       Without objection, State‟s Exhibits 132 and 133 were

admitted into evidence.           (Vol. 32Tp. 7350; Vol. 33Tp. 7474)

Each exhibit consisted of a Certificate of Death signed by

medical examiner Hugh Hinson, which listed the manner of

death as “pending,” and a Supplemental Report on Cause of

Death signed by Deborah Radisch, M.D., listing the manner

of death as “homicide.”           (Rp. 130-134)        Neither exhibit was

published to the jury at the time of admission.

       Dr.   Owens,     the     pathologist     who     conducted     Addison

Macemore‟s autopsy, testified that the cause of death was

carbon monoxide poisoning.             (Vol. 32Tp. 7345)            Dr. Owens

testified that the fire was initially thought to have been
                                           34

an accident.         Over defense objection, Dr. Owens testified

that     the    manner       of    death     was    later     classified          as    a

homicide.         (Vol. 32Tp. 7346-7347)                  On cross-examination,

Dr. Owens testified that Dr. Radisch signed supplemental

death    certificates         classifying          the    manner        of   death     as

homicide       and   that     he    did    not     know    what    she       based     her

opinions on.         (Vol. 32Tp. 7457-7458)                Dr. Owens testified

that     nothing      from        the    autopsy     or     toxicology         testing

revealed anything about the manner of death.                             (Vol. 32Tp.

7378-7379)

       At the close of Dr. Owens‟ testimony, the trial court

revisited the defense objection, sustained it, and struck

the testimony relating to manner of death due, in part,

because Owens was in no better position than the jury to

determine whether the fire was the result of arson.                               (Vol.

33Tp. 7423-7432)            The defense subsequently moved to strike

manner    of    death    from       the    previously       admitted         exhibits.

(Vol.     32Tp.      7496)         The     court    denied        the    motion        and

published the exhibits to the jury.                   (Vol. 33Tp. 7511-7512)

       A.   Admission of Testimonial Opinions                           Deprived
       Ms. Greene of Confrontation Rights.

       Dr. Radisch‟s opinions that the manner of death was

homicide constituted testimonial evidence.                              Melendez-Diaz

v. Massachusetts, __ U.S. __, __, 174 L.Ed.2d 314, 321
                                       35

(2009); State v. Locklear, __ N.C. __, 681 S.E.2d 293, 304-

305    (2009).      The    Confrontation            Clauses    of     the   Sixth

Amendment to the United States Constitution and Article I,

§23 of the North Carolina Constitution therefore required

the State to show that it tried to obtain Dr. Radisch‟s

presence    at    trial     and     that      Ms.     Greene    had    a    prior

opportunity to cross-examine her.                   Crawford v. Washington,

541 U.S. 36, 68, 158 L.Ed.2d 177, 203 (2004); State v.

Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217 (2004).

As the State failed to show either, the trial court erred

in publishing the documents.

       Opinion evidence is not insulated from confrontation

demands    by     inclusion       in    self-authenticated             documents

admissible under hearsay rules.               Melendez-Diaz, 174 L.Ed.2d

at 325; Crawford, 541 U.S. at 51, 158 L.Ed.2d at 192.                         Pre-

Rules of Evidence cases excluded manner of death opinions

due to confrontation concerns, Branch v. Dempsey, 265 N.C.

733,   748-749,     145    S.E.2d      395,    406    (1965),       despite   the

longstanding      admissibility        of     death    certificates.          See

§130A-93(h).      The drafters of Rule 803(9) sought to change

that   rule,     Segrest   v.     Gillette,     331     N.C.    97,    103,   414

S.E.2d 334, 337 (1992), though they did not intend                            “to

permit use of statements of the cause of death in a death
                                            36

certificate       against        a    defendant           in    a     criminal     case.”

Commentary to Rule 803(9).

    As state rules of evidence cannot deprive a criminal

defendant of constitutional guarantees, Crawford, 541 U.S.

at 50-51, 158 L.Ed.22d at 192; State v. Lemons, 352 N.C.

87, 96, 530 S.E.2d 542, 547 (2000), Rule 803(9) could not

serve as the vehicle for publication, as the trial court

ruled.    (Vol.     33Tp.       7498)        Publishing             the    opinions     was

“functionally identical to live, in-court testimony, doing

„precisely    what       a   witness        does     on    direct         examination,‟”

Melendez-Diaz       174       L.Ed.2d        at      321        (quoting        Davis    v.

Washington,       547     U.S.       813,     830,        165       L.Ed.2d     224,    242

(2006)).      The       State    was    therefore          bound          to   demonstrate

“what the common law required:                     unavailability and a prior

opportunity for cross-examination.”                        Crawford, 541 U.S. at

68, 158 L.Ed.2d at 203.

    The State made no showing that it tried to obtain Dr.

Radisch‟s presence at trial.                  The State did not include Dr.

Radisch on its witness list.                     (Vol. 32Tp. 7401)               When the

defense    moved     to      strike     Dr.       Radisch‟s          opinions      on   the

ground that she had not testified, the State responded with

the oft-rejected refrain that Ms. Greene was free to call

Dr. Radisch.        (Vol. 33Tp. 7499)                The burden, however, was

on the State to produce Dr. Radisch, not on the defense to
                                            37

bring this adverse witness into court.                        Melendez-Diaz, 174

L.Ed.2d at 330.

       Had the State subpoenaed Dr. Radisch, it is likely

that her opinions would have been excluded                             just    as Dr.

Owens‟ were.         Dr. Owens admitted that the autopsy could not

reveal manner of death and that he both ignored and was

unaware    of       exculpatory      information       in     the   case.          (Vol.

32Tp.   7378-7349;          Vol.    33Tp.        7434-7442)      He    revealed       no

expertise       in    arson    investigation.               Nothing        appears    of

record that additional medical tests could have revealed

manner of death, that Dr. Radisch conducted any such tests,

or that Dr. Radisch was qualified by scientific, technical,

or other specialized knowledge to render these opinions.

       As in Melendez-Diaz, all that the jury received was a

“bare-bones          statement.”            Cross-examination              could     have

revealed       if     the     opinions       were      neutral        or     reliable.

Melendez-Diaz, 174 L.Ed.2d at 326.                    Publishing the opinions

without affording confrontation was not harmless beyond a

reasonable doubt under §15A-1443(b), since the opinions not

only went to the sole contested issue in the case, but

impermissibly commented on guilt                      State v. Kim, 318 N.C.

614, 621, 350 S.E.2d 347, 351 (1986); State v. Brown, 300

N.C.    731,    733,     268       S.E.2d    201,     203     (1980).         While    a

pathologist may describe an event as a “homicidal assault”
                                           38

when “homicidal assault” is a medical term of art, State v.

Flippen, 334 N.C. 689, 699, 477 S.E.2d 158, 164 (1996),

describing these deaths as homicides could only have been

understood in the legal sense of the word.

      B.   The State Failed to Disclose the Basis of
      Dr. Radisch’s Opinions, As Required by §15A-903.

      On 17 March 2006, the trial court granted Ms. Greene‟s

motion for discovery (Rp. 14-21; Vol. Ap. 11-13), thereby

requiring      the    State    to    disclose        the    complete      files   of

investigating         agencies       and        reports     from    all     experts

reasonably     expected       to    be     called    at    trial.        The   State

disclosed nothing beyond the forms.                   (Vol. 33Tp. 7497-7498,

7502)   Due to the discovery failure, the trial court abused

its discretion in publishing the opinions.

      The Office of the Chief Medical Examiner is authorized

to   conduct     examinations        and        investigations      to    determine

manner of death.          §130A-385.            Its results are used by the

State in criminal prosecutions.                     The Office of the Chief

Medical Examiner falls within §15A-903(a)(1).                        An employee

of that Office who opines that the manner of death was

homicide    is       precisely      the    type     of     expert   witness       the

prosecution in a capital case would reasonably expect to

call at trial.         Even if these prosecutors planned all along

to ambush the defense by not calling Dr. Radisch in person,
                                     39

Dr. Radisch was an expert witness at trial by virtue of her

testimonial    opinions      being   admitted    into    evidence.      The

State    was   therefore      required       under     §15A-903(a)(2)    to

divulge the basis for her opinions.

    Although the trial court ruled that §15A-903 extended

to pathologists (Vol. 32Tp. 7390), the court did not find a

discovery violation.         (Vol. 33Tp. 7502)         This ruling was so

arbitrary as to not reflect a reasoned decision, Cook, 362

N.C. at 294-295, 661 S.E.2d at 880, since two separate

provisions of §15A-903 mandated disclosure and disclosure

was essential to a fair trial as the basis for the opinions

could not otherwise be discerned.               Physicians are trained

to determine medical causes of death and render opinions on

matters medically inferable.               E.g. State v. Bearthes, 329

N.C. 149, 162-163, 405 S.E.2d 170, 177 (1991); State v.

Kennedy, 320 N.C. 20, 32-33, 357 S.E.2d 359, 367 (1987).

As the autopsies and toxicology could not reveal whether

the deaths were intentional or accidental (Vol. 32Tp. 7378-

7379),     revelation   of     how   Dr.     Radisch     arrived   at   her

opinions    was   critical     to    the    defense.      Publishing    the

opinions in the face of discovery violations constituted

reversible error.       State v. Canady, 355 N.C. 242, 253-254,

559 S.E.2d 762, 768 (2002) (murder conviction reversed due
                                        40

to    failure        to   disclose      basis       of    ballistic       expert‟s

opinion).

          C.   Dr. Radisch’s Opinions had Minimal Probative
          Value and Posed the Risk of Unfair Prejudice and
          Misleading the Jury.

          In response to the defense Rule 403 objection (Vol.

33Tp. 7499), the trial court ruled:

                 Well, I have considered the arguments
                 of counsel and conducted a Rule 403
                 analysis.   And it certainly cannot be
                 prejudicial in the sense that this is a
                 homicide or a murder trial.      So it‟s
                 not like that‟s a word that the jury
                 hasn‟t heard or hadn‟t considered.
                 I‟ll note your objection, will allow
                 the   publication  of  the   two   death
                 certificates. (Vol. 33Tp. 7501-7502)

The       sole    contested    issue   in    this    case    was    whether   the

children died as a result of homicides.                     Refusing to strike

Dr. Radisch‟s opinions because the jury was familiar with

the term “homicide” was a gross abuse of discretion.

          “The broad discretion which is vested in the trial

court is not unlimited.”               State v. Tolley, 290 N.C. 349,

367, 226 S.E.2d 353, 367 (1976).                A court must exercise its

discretion not “„arbitrary or willfully, but with regard to

what is right and equitable under the circumstances and the

law, and directed by the reason and conscience of the judge

to    a    just    result.‟”    Id.    at    367,   225    S.E.2d    at   367-368
                                           41

(quoting Langnes v. Green, 282 U.S. 531, 541, 75 L.Ed. 520,

526 (1931)).

      To conduct a Rule 403 analysis, a court must balance

the   probative       value     of    proffered             evidence     against       its

prejudicial effect to determine if the value “is worth what

it costs.”       Weinstein and Berger, 1 Weinstein’s Evidence

para. 403[01] at 401-13 to 401-14 (1995).                               Exclusion is

particularly       appropriate         when           the    probative         value    is

slight.     State v. Graham, __ N.C. App. __, 683 S.E.2d 437

(2009).     A court should also consider the “availability of

other means of proof....”             Commentary to Rule 403.

      Since    the      State        did        not     present        Dr.     Radisch‟s

qualifications or the basis of her opinions, the opinions

had little probative value.                     The probative force of cause

opinions      derives     from        the        expertise        of     the      witness

rendering      them     and,     as        to     physicians,           whether        they

represent     logical         “inferences             from    medical         facts....”

Brown, 300 N.C. at 734, 268 S.E.2d at 203.                               When neither

expertise nor medical evidence supports the opinions, the

opinions    should      not    even        be    admitted,        since       a   medical

examiner is no better qualified than a juror to opine, for

example,    that      intercourse          was        performed    at        knifepoint,

State v. Marshall, 92 N.C. App. 398, 404, 374 S.E.2d 874,

877 (1988), or that bloodstains on clothing were caused by
                                 42

wiping a knife.       State v. Zuniga, 320 N.C. 233, 251, 357

S.E.2d 898, 910 (1987).      Determining how a fire started is

not an inquiry typically within a physician‟s expertise.

If Dr. Radisch possessed a special skill set, the jury was

not made aware of it and thus had no reliable basis on

which to weigh the opinions.

    Though the opinions objectively had little probative

value,     jurors    generally   assign   “extraordinarily    high

probative value” to expert opinions.        State v. Cunningham,

108 N.C. App. 185, 194, 423 S.E.2d 802, 807 (1992).             The

jury was empowered to add Radisch‟s opinions to those of

qualified    arson    experts.    Tipping   the   balance    toward

conviction by telling the jury that the Office of the Chief

Medical Examiner had already decided Ms. Greene‟s guilt was

overwhelmingly prejudicial and misleading.        It was neither

right nor equitable to publish the documents.

     D. If Any Aspect of this Issue is Unpreserved,
    the Issue Should be Reviewed for Plain Error or
    Ineffective Assistance of Counsel.

    Among the grounds raised at trial, counsel objected to

publication of the opinions because Dr. Radisch did not

testify.     Counsel specifically argued that the issue was

not whether the reports were admissible under hearsay and

authentication rules, but whether the reports, given their

contents, should be published in Radisch‟s absence.          (Vol.
                                            43

33Tp. 7498)       When a witness does not testify, the defendant

is ipso facto deprived of confrontation.                          The court was

thus aware that a constitutional violation was at issue,

but chose to side-step it by relying on a rule of evidence.

(Vol. 33Tp. 7498)             Assuming arguendo that the court was not

on    notice,    this        Court    may   examine    the   issue    for   plain

error.    Raines, 362 N.C. at 16, 653 S.E.2d at 126; State v.

Mobley, No. COA09-139 (N.C. App. November 3, 2009).

       Plain error exists when “either (i) a different result

probably would have been reached but for the error or (ii)

that    the     error    was     so    fundamental     as    to    result     in   a

miscarriage of justice or denial of a fair trial.”                            State

v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).

Exposing the jury to these opinions undermined confidence

in the reliability of the verdicts, since it was precisely

the    type      of     evidence       which       “tilts    the     scales”       to

conviction.           Raines, 362 N.C. at 16, 653 S.E.2d at 136.

Publication           also     denied       the     fundamental       right        of

confrontation. State v. Odom, 307 N.C. 655, 660, 330 S.E.2d

375, 378 (19983).            Publication constituted plain error.

       Alternatively, counsel was ineffective for failing to

object to admission of the documents.                   Crawford was decided

in 2004.         Its application to opinions by non-testifying

experts was “straightforward.”                    Melendez-Diaz, 174 L.Ed.2d
                                         44

at   332.    “Some      legal     skills,       such   as    the    analysis        of

precedent [and] the evaluation of evidence...are required

in all legal problems.”                The Revised Rule of Professional

Conduct of the North Carolina State Bar, Comment to Rule

1.1.        Reasonably       competent        counsel       would   have         cited

Crawford     and    argued       not   merely    for    non-publication,           but

exclusion.          A     reasonable     probability         exists       that     Ms.

Greene‟s     convictions         would   be     reversed     upon     a    properly

preserved confrontation claim.

       II. THE    COURT   ERRED   IN   OVERRULING   PRIOR
       DISCOVERY   ORDERS  THAT   SET   A  DEADLINE   FOR
       PRODUCTION OF ATF EVIDENCE AND A SANCTION IN THE
       EVENT THE STATE FAILED TO COMPLY.

       Assignment of Error No. 3, Rp. 400

       Standard of Review:

       When a Superior Court judge overrules, modifies, or

changes the order of another Superior Court judge, this

Court reviews the matter de novo.                  State v. Woolridge, 357

N.C. 544, 549, 592 S.E.2d 191, 194 (2003).

       Argument:

       On 17 March 2006, Superior Court Judge Long granted

the defense motion for discovery.                  (Vol. Ap. 11-13)              On 5

June and 24 August 2006, the defense told the court that it

had not received any ATF discovery.                    (Vol. Cp. 3; Vol. Dp.

3-4)     When      none    had    been   produced      by    3   November        2006,
                                    45

Superior Court Judge Spainhour ordered the State to produce

ATF discovery by 1 March 2007 or be precluded from using

ATF evidence at trial.            (Vol. Fp. 29)         Judge Spainhour

reiterated the       order on 6 November 2006           and 22 January

2007.     (Rp. 35-36; Vol. Gp. 16-17; Vol. Hp. 2-4)

       On 26 February 2007, the State told Superior Court

Judge Collier that it expected to meet the deadline and

provide all reports, data, videos, and photographs by 1

March.     (Vol. Ip. 3)      On 1 March, the State produced three

disks of raw test data, videotapes, and photographs.                    (Vol.

Jp. 2)3      The defense moved to enforce Judge Spainhour‟s

orders.     (Vol. Jp. 12-13)       The prosecutor conceded that she

had not produced a report and told the court that she had

just contacted Dr. Sheppard to fax one. (Vol. Jp. 28)                     The

report received during the hearing recited in its entirety:

“The    witness     statements    are    inconsistent    with    the    fire

environment at the time of the fire and the fire scene is

consistent with a fire that started in the alcove and not

in the bedroom.”       (Vol. Jp. 29)

       The defense again moved to enforce Judge Spainhour‟s

orders    and   argued     that   the    report   was   insufficient      in

setting     forth    Dr.   Sheppard‟s      opinions,    the     bases     for

3
  Counsel requested the Cabarrus County Clerk to forward the disks,
admitted at trial as State‟s Exhibits 229, 237, and 287, to this Court,
as well as Defendant‟s Exhibit 576, a print out of the bulk of the
information on the disks.
                                     46

opinions, and Dr. Sheppard‟s qualifications to render the

opinions. (Vol. Jp. 29-34) The prosecutor responded that

Judge Spainhour never set a 1 March deadline and that she

would provide additional discovery as it became available.

(Vol. Jp. 34) Judge Collier recessed the hearing until 12

March to review the disks.            (Vol. Jp. 36)           On 12 March,

Judge Collier denied the defense motion and gave the State

thirty more days to produce ATF discovery.                   (Vol. Kp. 13)

Judge Collier did not sanction the State for failing to

meet the 1 March 2007 deadline.

    “The    well     established      rule    in     North    Carolina    is

that...ordinarily      one   judge    may    not    modify,    overrule   or

change    the   judgment     of     another       Superior    Court    judge

previously made in the same action.”                   Calloway v. Ford

Motor Company, 281 N.C. 496, 189 S.E.2d 484 (1972).                   Absent

a showing of changed circumstances and the intervention of

new facts, a Superior Court judge may not reconsider a

previously decided issue.           State v. Duvall, 304 N.C. 557,

562, 284 S.E.2d 495, 499 (1981); State v. James, 182 N.C.

App. 698, __, 643 S.E.2d 34, 36 (2007).

    The    State     did   not    claim   that     changed    circumstances

prevented it from meeting the deadline and Judge Collier

cited    none   in     overruling         Judge     Spainhour‟s       orders.

Instead, after resisting disclosure for over a year, the
                                       47

State    claimed   that    a    two    sentence       report   satisfied        its

discovery duties.         (Vol. Kp. 11)         By giving the State more

time to produce another report, Judge Collier did not deem

the report sufficient.

      By failing to enforce the orders, Judge Collier paved

the way for the State‟s failure to definitively produce ATF

discovery.    Although         Dr.    Sheppard        faxed    a     purportedly

complete report on 11 April 2007 (Vol. Lp. 11), additional

opinions were disclosed on the weekend of 8 December 2007.

(Vol. 38Tp. 8714-8715)               More opinions emerged during Dr.

Sheppard‟s    testimony,       such     as   that     an   adult     could     have

walked through the flames produced by a burning blanket.

(Vol. 45Tp. 10293, 10315-10316)                 A month into trial, the

prosecution produced a report by ATF Agent Tuley addressing

the   test   burns   and       outlining       some    bases       for   the    ATF

opinions.     (Vol. 21 Tp. 4947-4948; Vol. 23Tp. 5532)                          The

surprises continually encountered by the defense as to the

ATF     testing    would       have     been     eliminated          had       Judge

Spainhour‟s orders been enforced.                As Judge Collier had no

authority to overrule or modify the orders, Ms. Greene must

be granted a new trial.

      III. THE   TRIAL  COURT   ERRED   OR   ABUSED ITS
      DISCRETION IN FAILING TO REMEDY THE STATE’S
      FAILURE TO PROVIDE COMPLETE WITNESS STATEMENTS OR
      TIMELY DISCLOSE DISCOVERABLE MATERIAL.
                                 48

     Assignments of Error Nos. 13, 17-19, Rp. 403-406,
     Addendum to Record on Appeal4

     Standard of Review:

     Determining     whether    the    State   violated    discovery

obligations is reviewed for abuse of discretion.           State v.

Cook, 362 N.C. 285, 294-295, 661 S.E.2d 874, 880 (2008).

The denial of a motion for mistrial is reviewed for abuse

of discretion.     State v. Jordan, 149 N.C. App. 838, 844,

562 S.E.2d 465, 468 (2002).           The denial of a motion for

continuance raising     constitutional issues is reviewed         de

novo.   State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430,

433 (1981).

     Argument:

     The State violated N.C.G.S. §15A-903(a)(1) by failing

to disclose complete witness statements or timely produce

discovery.     The trial court did not find that discovery

violations occurred and imposed no sanctions. As the State

admitted discovery violations         and the prejudicial impact

was evident during trial, the convictions must be reversed.

     A.   The Prosecution      Did    Not   Disclose   Complete
     Witness Statements.

     Section 15A-903(a)(1) was amended in 2004 to require

the State to disclose witness statements prior to trial. In


4
 A Motion to Amend the Record on Appeal was filed simultaneously with
this Brief to amend Assignments of Error Nos. 17 and 19.
                                         49

State v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516 (2007),

this Court ruled that §15A-903 must be enforced as written.

       On 8 October 2007, the defense moved for production of

complete      witness      statements     because      it    was    evident     from

discovery that entire statements were not being disclosed.

(Vol. 1Tp. 41)          The prosecutors alternatively argued that

interview notes constituted work product (Vol. 1Tp. 42),

that they were not required to provide the degree of detail

that exists in statements taken by law enforcement (Vol.

7Tp.    1712),      that      §15A-903    only      required       disclosure       of

interview summaries (Vol. 7Tp. 1714), and that interviewing

a witness did not constitute taking a statement. (Vol. 7Tp.

1717)      On    16   October     2007,       the   trial    court    denied       the

motion, ruling that §15A-903 did not require disclosure of

entire statements and Shannon’s contrary holding did not

apply because the case was pending review by the Supreme

Court.     (Vol. 7Tp. 1714-1718)               When the Attorney General‟s

Office   withdrew       the     Shannon       appeal   on    5    November    2007,

State v. Shannon, 361 N.C. 702, 654 S.E.2d 246 (2007), the

defense moved for a mistrial or, in the alternative, a two

week continuance.             The court denied the motion.                    (Vol.

21Tp. 4966; Vol. 24Tp. 5550)

       When     a     trial     court‟s       rulings       are    based      on     a

misapprehension of law, such can constitute an abuse of
                                             50

discretion.          State v. Tuck, 191 N.C. App. 768, 771, 664

S.E.2d 27, 29 (2008); Shannon, 182 N.C. App. at 357, 642

S.E.2d at 522.            The trial court misread §15A-903(a)(1) and

never   ordered       the    State      to    produce      complete     statements.

When    the    defense       argued      that      Shannon      held    that      §15A-

903(a)(1) had to be construed as written, the court replied

that    it    had    yet    to     be   determined        whether      this   Court‟s

interpretation        was     correct.        (Vol.      7Tp.   1716)         Assuming

arguendo that the court was free to ignore Shannon because

the    mandate      had     been    stayed,        the   lifting       of   the   stay

signaled      that    Shannon       governed        this    case.       Griffin     v.

Kentucky, 479 U.S. 314, 328, 93 L.Ed.2d 649, 661 (1987).

       The existence of incomplete witness statements and the

prejudice caused thereby was evident early in the trial.

The defense was surprised in voir dire when prosecutors

questioned       jurors      about      their      familiarity      with      certain

“biker” bars.         (E.g. Vol. 2Tp. 343; Vol. 3Tp. 725)                          When

the defense complained that no witness statement mentioned

the bars, the prosecutor responded that the information had

been withheld because it came from friends of Ms. Greene.

(Vol.    6Tp.        1180-1182)              The    prosecutor         argued      that

surprising the defense in voir dire could not possibly be

prejudicial because counsel now had an opportunity to ask

their client about it. (Vol. 6Tp. 1183-1184)
                                      51

    Prosecutors cannot conjure reasons to deny specific

items of discovery.         Tuck, 191 N.C. App. at 772, 664 S.E.2d

at 29-30.     Despite the obvious Shannon violation, the trial

court denied the defense request to prohibit the State from

questioning       jurors     about     matters      not     disclosed      in

discovery.    (Vol. 6Tp. 1187; Vol. 8Tp. 1870)

    The     defense    was     surprised     when    firefighter      Howard

testified    to    attending    two    pre-trial     meetings    with     the

prosecutor because the State had only disclosed one. (Vol.

25Tp. 5948)       Howard testified that he had initially thought

Ms. Greene‟s actions at the fire scene were genuine, but

that he described them as “theatrics” at the non-disclosed

meeting.      (Vol. 25Tp. 5784, 5811, 5948)                 The prosecutor

argued that the defense was not entitled to that discovery

because the purpose of the meeting was to “reach out” to

firefighters,      rather    than    interview      them.     (Vol.     25Tp.

5951-5953)     The trial court noted the defense surprise, but

ruled that the statements were not discoverable because the

prosecutor did not attend the meeting in an investigatory

capacity.    (Vol. 25Tp. 5954-5956)

    Section        15A-903(a)(1)      required      disclosure     of     the

prosecutor‟s complete files.               The court‟s ruling allowed

the State to label witness encounters as investigatory or

non-investigatory, which violated §15A-903(a)(1).
                                          52

      Bell-Diss testified to meeting with the prosecution

twice, but only one meeting was disclosed.                        (Vol. 26Tp.

6175-6176, 6239)           When the prosecutor told the court that

he had forgotten about that interview, the court ruled that

the   failure      to     disclose    the       new   statement   was   neither

intentional nor prejudicial.                   (Vol. 26Tp. 6239-6240)        The

prosecution did not even disclose the complete contents of

a   trial      interview    with     Bell-Diss,       as   Assistant    Attorney

General        Adinolfi    stated        that    he   wrote    notes    on   the

interview report and would have to redact them to avoid

disclosing work product.             (Vol. 25Tp. 6028-6030)

      A new witness statement surfaced during the hearing on

the motion to suppress held after the jury was selected.

Brady evidence came to light when the State disclosed for

the first time that Ms. Greene repeatedly told officers, “I

didn‟t kill my young‟uns.”                  (Vol. 22Tp. 5497-5501)           The

prosecution had not thought that either §15A-903 or the

Constitutions required it to disclose Ms. Greene‟s complete

statements. (Vol. 23Tp. 5506-5509)

      In the face of the State‟s admissions that it did not

produce complete witness statements, the trial court did

not mistry or continue the case so that complete statements

could     be     provided.         The    court‟s      unreasonable      rulings

constituted error or a gross abuse of discretion.
                                             53

      B.     Disclosures by the State were Untimely.

      The State disclosed thousands of pages of discovery

during     trial.        The     trial       court        denied    motions     for    a

mistrial, continuance, and preclusion.                            (Vol. 14Tp. 3347-

3348; Vol. 21Tp. 4953-4969; Vol. 30Tp. 6867-6868) Given the

breadth     of   late        discovery,           the     trial    court‟s    rulings

constituted error or a gross abuse of discretion.                                     See

State v. Mitchell, __ N.C. App. __, 671 S.E.2d 430, 343,

appeal     withdrawn,        2009     N.C.        LEXIS    808    (2009).    Prejudice

must be presumed herein, as the late discovery in such a

complex case deprived Ms. Greene of a fair trial. State v.

Rogers, 352 N.C. 119, 125, 529 S.E.2d 671, 675-676 (2000).

      On 8 October 2007, defense counsel asked the trial

court to review the prosecutors‟ files in camera as counsel

did   not     believe         that     the         State     had     disclosed        all

discoverable material.              The court denied the motion, ruling

that it had to take the prosecutors‟ assertion of discovery

compliance on face value.                (Vol. 1Tp. 46)              On 16 October,

the court denied a defense request for production of the

State‟s     files       in    court    for         defense       examination,    again

relying     on   the         prosecutors‟          assertions       of   compliance.

(Vol. 7Tp. 1448, 1704)

      Between       8    and     23    October            2007,    the   prosecution

disclosed in excess of 2,400 pages of discovery (Vol. 11Tp.
                                     54

2539; Vol. 12Tp. 2780; Vol. 17Tp. 4070;                    Vol. 21Tp. 4945,

4970),    including       witness   interviews       conducted      pre-trial

(Vol. 3Tp. 465; Vol. 7Tp. 1446-1447, 1702-1704; Vol. 14Tp.

3346;    Vol.    21Tp.    4959-4961;      Vol.    23Tp.    5517-5519;       Vol.

24Tp. 5788-5789; Vol. 28Tp. 6477), witness interviews not

immediately      useable     because      they    lacked     addresses         and

telephone numbers (Vol. 3Tp. 457-458; Vol. 7Tp. 1447-1448;

Vol. 23Tp. 5513), undated witness interviews and interviews

without definitive dates (Vol. 24Tp. 5540; Vol. 26Tp. 6100;

Vol. 28Tp. 6471, 6477), and witness interviews summarized

as     “interview     consistent       with      statement,”      though       no

previous statement had been disclosed or the witness gave a

contradictory       statement.      (Vol.     3Tp.   458-459;       Vol.    6Tp.

1179-1180, 1185; Vol. 24Tp. 5541-5542; Vol. 26Tp. 6237)5

       Additional missing pieces of discovery surfaced in the

course    of    witness    examinations,      such    as    notes    of    a    10

January 2006 telephone conversation between Dr. Owens and

Deputy Mason in which Mason reported that Ms. Greene told

her neighbor that her house was on fire and her children

were    inside   before     the   neighbor       called    911   (Vol.     33Tp.

7408-7411, 7435-7436), a 10 December 2006 report by Sgt.

Wensil stating that Ms. Greene told Bell-Diss before the

5
 A portion of the discovery provided during trial was preserved for this
Court‟s review as Defendant‟s Exhibit 573. Counsel requested the Clerk
of the Cabarrus County Superior Court to forward the Exhibit to this
Court.
                                     55

911 call that her house was on fire, the children were

inside, the children were supposed to blow the candle out,

and she had fallen asleep in the recliner (Vol. 25Tp. 6055-

6067;   Vol.     33Tp.    7412),   and    2006     toxicology   worksheets

documenting that diphenhydramine did not contribute to the

children‟s deaths (Vol. 33Tp. 7408-7410, 7442, 7455).

     A defendant cannot prepare for trial when the State

waits until trial to disclose its evidence.                Cook, 362 N.C.

at 294, 661 S.E.2d at 879-880.                When the State then hampers

defense    access    by    failing       to     provide   witness   contact

information, the defense cannot even immediately begin to

investigate.       Cf. State v. Taylor, 344 N.C. 31, 50, 473

S.E.2d 596, 607 (1996).

     The trial court did not find that discovery violations

occurred, though the documents themselves established that

information obtained before trial was not disclosed until

after trial began.         The court‟s reliance on prosecutorial

assertions of compliance was arbitrary since missing pieces

of discovery continually surfaced.                  The court‟s reliance

was unreasonable, since the prosecution contended that it

had no right to inspect law enforcement files to determine

if all discoverable materials had been obtained (Vol. 25Tp.

6091;     Vol.    33Tp.     7419-7422),         though    an    “individual

prosecutor has a duty to learn of any favorable evidence
                                  56

known to the others acting on the government‟s behalf in

the case, including the police.”               Kyles v. Whitley, 514

U.S. 419, 437, 131 L.Ed.2d 490, 508 (1995).

      When the prosecution permits defense counsel prior to

trial to inspect their files, as occurred herein, counsel

can reasonably expect the files to be complete and prepare

for trial accordingly.        Strickler v. Greene, 527 U.S. 263,

283   n.23,   144   L.Ed.2d    286,     303    n.23     (1999).       These

prosecutors engaged in a pattern of non-disclosure and late

disclosure,    hampering      effective       trial     preparation     and

denying Ms. Greene a fair trial.

      C.   The   State    Did          Not     Timely      Disclose
      Impeachment Evidence.

      During the eighth week of trial, the State disclosed

2,000 pages of transcripts, depositions, news articles, and

monographs relating to defense arson expert John Lentini.

The prosecutor admitted that he received the materials four

to six weeks before trial, but withheld discovery on the

ground of “work product.” (Vol. 29Tp. 6582-6583)                  Although

the trial court disagreed that materials prepared by others

could constitute work product, it ruled that form would be

elevated over function to call this a discovery violation

since Mr. Lentini would be familiar with the materials.

(Vol. 29Tp. 6582; Vol. 30Tp. 6867-6868)               As the court did
                                       57

not   find    a    discovery    violation,         it   denied      the    defense

motion to bar the prosecution from utilizing the materials

to impeach Mr. Lentini.          (Vol. 30Tp. 6867)

      The test for determining discovery violations does not

focus on whether a witness might be able to wing his way

through      cross-examination.             The    focus     is    upon    whether

discovery         was     required      and        whether        non-disclosure

prejudiced the defense. Defense counsel, in the midst of

trying    a    capital      case,     were    faced     with       familiarizing

themselves with yet another 2,000 pages of new discovery.

      Shannon      was    remanded    for     an   evidentiary       hearing    to

determine     if    statements      were     not   timely     disclosed.        No

evidentiary hearing is needed here, as it is clear from the

record that timely and complete disclosure did not occur.

The defense opening statement was based on the information

disclosed prior to trial (Vol. 38Tp. 8972), disclosure that

was   woefully          incomplete.          The    Legislature,          “by   its

amendments to G.S. §15A-903, assured the accused greater

access than that afforded by simple due process.”                         Shannon,

182 N.C. App. at 362, 642 S.E.2d at 525.                          The discovery

violations and failure to remedy them deprived Ms. Greene

of a fair trial as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and Article I,
                                    58

§§18, 19, 23, and 24 of the North Carolina Constitution,

requiring that her convictions be reversed.

      IV. THE    TRIAL  COURT  ERRED  OR   ABUSED  ITS
      DISCRETION IN FAILING TO FIND THAT THE STATE’S
      ENDORSEMENT OF FOUR ADDITIONAL EXPERTS DURING
      TRIAL CONSTITUTED DISCOVERY VIOLATIONS.      THE
      COURT’S REFUSAL TO PROHIBIT THE WITNESSES FROM
      TESTIFYING, DENIAL OF A MOTION FOR MISTRIAL OR
      RECESS, AND GRANT OF ONLY A TWO DAY CONTINUANCE
      DENIED MS. GREENE HER STATUTORY DISCOVERY RIGHTS
      AND A FAIR TRIAL.

      Assignments of Error Nos. 4-11, Rp. 401-403

      Standard of Review:

      Determining whether the State violated discovery is

reviewed for abuse of discretion.               State v. Cook, 362 N.C.

285, 294-295, 661 S.E.2d 874, 880 (2008). The denial of a

motion for mistrial is reviewed for abuse of discretion.

State v. Jordan, 149 N.C. App. 838, 844, 562 S.E.2d 465,

468 (2002). When a motion to continue raised constitutional

issues, the matter is reviewed de novo.                State v. Searles,

304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981).

      Argument:

      Prior to trial, the only expert witnesses designated

by   the   State   were     SBI   Agent    Mullis     and    ATF    Engineer

Sheppard.      (Vol. 20Tp. 4936)      On 22 October 2007, two weeks

after trial started, the State told the trial court that it

needed     a   toxicology    expert       and    a   new    arson   expert,

purportedly to respond to defense experts.                    (Vol. 11Tp.
                                           59

2537)       On 23 October, the prosecution told the court that

it    had    retained       new   experts,         but    did   not     reveal    the

experts‟ identities.              (Vol. 12Tp. 2650, 2782-2783)               On 30

October, the State produced curriculum vitaes for ATF Agent

Tuley,      South Carolina Chief Toxicologist                    David Eagerton,

and SBI Agent Heffney, a report by David Campbell, and a

report by Heffney that did not provide a basis for his

opinion.      (Vol. 17Tp. 4070-4072, 4152)                  The State announced

its intent to call Tuley, Campbell, and Heffney as arson

experts and Dr. Eagerton as a toxicology expert.                           Reports

and curriculum vitaes dribbled in for months afterwards.

(Vol. 21Tp. 4950; Vol. 38Tp. 8716-8717; Vol. 56Tp. 12411;

Vol. 58Tp. 12969)

       The trial court did not find that endorsement of these

experts constituted discovery violations and denied motions

to prohibit the witnesses from testifying, for a mistrial,

for a continuance, and for a recess.                           (Vol. 20Tp. 4942-

4943; Vol. 21Tp. 4953; Vol. 23Tp. 5529-5530; Vol. 23Tp.

5529-5530;     Vol.     24Tp.      5647;        Vol.   41Tp.    9717,    9712-9714)

Ultimately, the court granted a two day continuance at the

end   of     voir    dire    (a    Friday        and     Monday/Veteran‟s        Day).

(Vol. 23Tp. 5529-5530)             The court‟s failure to exclude the

witnesses      and    afford      a   meaningful          opportunity     for     the
                                      60

defense    to     respond     was    error     or   a     gross     abuse     of

discretion.

    N.C.G.S.       §15A-903(a)(2)      requires     the     State    to     give

notice “within a reasonable time prior to trial” of “any

expert witnesses that the State reasonably expects to call

as a witness at trial” and provide curriculum vitaes and

reports.        Pre-trial disclosure enhances defense counsel‟s

“preparation       for    cross-examination,        and    permit[s]        both

sides to assess the strengths and weaknesses of this aspect

of the evidence.”          State v. Dunn, 154 N.C. App. 1, 8, 571

S.E.2d 650, 655 (2002) (emphasis in original). Even if the

State is uncertain whether it will call a specific expert,

it must nonetheless advise the defendant of the potential

witness    at    the     earliest   possible    time      and   provide      the

required discovery.          State v. Blankenship, 178 N.C. App.

351, 356, 631 S.E.2d 208, 212 (2006).

    “The purpose of discovery under our statutes is to

protect    the     defendant        from   unfair       surprise     by      the

introduction of evidence he cannot anticipate.”                     State v.

Payne, 327 N.C. 194, 202, 394 S.E.2d 158, 162 (1990).                       When

the State does not give pre-trial notice of an expert, a

defendant can neither anticipate that a certain expert will

be used nor prepare an effective response.                  Cook, 362 N.C.

at 294, 661 S.E.2d at 879-880.
                                           61

      On   17     August   2007,          the    State       complained    that    the

discovery schedule would not give its experts “a chance to

answer” the defense experts. The State moved to continue

the   trial.       (Vol.      Lp.    19)         Judge    Spainhour       denied   the

motion     and    did   not    authorize          the     State    to    retain    new

experts, state that it had a right to retain new experts,

or suggest that it retain new experts.                       (Vol. Lp. 24)

      At    two    hearings         in    October        2007,    the    prosecution

admitted that Judge Spainhour did not alter the discovery

or trial schedule to allow the State to retain new experts

or    otherwise     authorize            the    State     to     seek    new    expert

opinions. (Vol. 12Tp. 2654; Vol. 17Tp. 4079)                               The State

argued that requirement of pre-trial disclosure in §15A-

903(a)(2) was irrelevant because of the discovery schedule.

(Vol. 12Tp. 2647-2648)              On 1 November 2007, in response to

repeated    defense      arguments             that    discovery      deadlines    had

been violated, the State did an about-face and claimed that

Judge    Spainhour      anticipated            that    the    State     would   obtain

more experts and the defense could thus not be surprised

that it had done so.            The State claimed that since unfair

surprise did not exist, the addition of new experts was not

governed by Cook or Blankenship.                      (Vol. 19Tp. 4386)

      The State further contended that the defense could not

claim surprise as to the specific experts selected.                                The
                                       62

prosecutor argued that the defense could not be surprised

by Agent Tuley because Tuley had been disclosed as a lay

witness prior to trial and the defense had inspected his

file.    (Vol. 17Tp. 4079)         When the file was inspected, it

did not contain a report or any other indication that Tuley

would testify as an expert witness.             (Vol. 17Tp. 4082; Vol.

21Tp. 4950)       The State argued that the defense could not be

surprised    by    SBI   Agent    Heffney,     whose    30     October    2007

report disclosed that Mullis asked him on 12 January 2007

to render an opinion.            Nothing in Mullis‟ file documented

that request.        (Vol. 17Tp. 4070-4071, 4078) The State did

not explain how the defense could have anticipated David

Campbell, who the State had listed as a lay witness.                     (Vol.

20Tp. 4935)        Although the first mention of Campbell as an

expert   witness     occurred     on    30   October,    documents       later

obtained    in     discovery      revealed     that     the    State     first

contacted him in August 2007.                (Rp. 274-285; Vol. 58Tp.

12986)     When confronted by those documents, the prosecutor

admitted that she contacted Campbell in August because she

had decided not to wait for defense expert reports before

retaining    new    experts.       (Vol.     58Tp.    12987)      The    State

offered no explanation as to why the defense should have

expected Dr. Eagerton.
                                          63

       On 22 October, 30 October, and 1 November 2007, the

court      deferred       ruling     on     whether       the     State   violated

discovery.            (Vol. 11Tp. 2538; Vol. 17Tp. 4083; Vol. 19Tp.

4391)      On 2 November 2007, the court, without explanation,

ruled    that      Campbell,   Tuley,          and    Eagerton    could   testify.

(Vol. 20Tp. 4942)             On 13 December 2007, the court ruled

that Heffney could testify in rebuttal.                       (Vol. 41Tp. 9717)

       It seems apparent from the chronology that the State

belatedly realized that its case would be stronger if it

offered more than Agent Mullis, who was certified as an

arson investigator one month before this fire (Vol. 40Tp.

9398), and Dr. Sheppard, who had never testified before a

jury as an expert. (Vol. 45Tp. 10262)                          A party‟s belated

realization that it prepared a weak case does not, under

the discovery statutes, confer the right to start over.

       The      prosecution    could      not        credibly    claim    that   its

desire       for      additional    experts          related     to   matters     not

evident before trial.              Ten weeks into trial, the State told

the court that it needed Tuley to testify as an expert due

to   Dr.     Sheppard‟s      lack    of   expertise.          (Vol.   41Tp.     9712)

Just    as      Dr.    Sheppard‟s    qualifications           were    known   before

trial, so too was Tuley‟s potential value as an expert

since      he    inspected    the    fire       scene    in     January   2006   and

participated in ATF testing.                   The fact that the State had
                                      64

been content prior to trial to limit Tuley‟s role to a fact

witness did not mean “rebutted” defense experts when the

State changed its mind.

      It could not have escaped the State‟s attention pre-

trial that Mullis‟ lack of experience would be fodder for

cross-examination.         Deciding to call her superior did not

cast Agent Heffney into the role of a “rebuttal” witness.

      Prior to trial, the State knew that its toxicology

testing refuted that Ms. Greene overdosed her children on

antihistamines.     (Vol. 40Tp. 9374)             The defense endorsement

of Dr. Garside did not, as the State claimed, inject an

unexpected issue into the case.              (Vol. 17Tp. 4074)

      The prosecution did not even wait for defense expert

reports     to retain David Campbell as a cause and origin

expert.     Having contacted Mr. Campbell in August 2007, the

prosecution instead chose to conceal his identity for two

months. (Rp. 274-285; Vol. 58Tp. 12987)

      The    prosecution     admitted        on     1    November    2007   that

adding these experts changed the entire case.                       (Vol. 19Tp.

4569)     The defense was thrown into the position of having

to   investigate   new     experts,        confer       with   defense   experts

about     new   reports,    and   prepare           to     cross-examine     new

experts, all while trying a complex capital case.                           (Vol.

21Tp. 4954)
                                        65

      The fact that the State ultimately called only Tuley

did   not    negate   either      the    discovery        violations      or     the

prejudice that arose from the court‟s refusal to exclude

the witnesses, grant a mistrial, or allow more than a two

day continuance.         The violations and their impact must be

viewed at the time they occurred.                 The prosecutors did not

inform the defense until 18 January 2008 – the day after

the defense rested - that they had decided not to call

Heffney, Eagerton, or Campbell in rebuttal.                           (Vol. 58Tp.

12979)      The defense expenditure of time to respond to these

experts had already occurred.

      “The trial judge here faced a familiar but difficult

decision where the motion[s] had to be considered” while

voir dire was ongoing.            Cook, 362 N.C. at 295, 661 S.E.2d

at 880.      No doubt jurors would have been inconvenienced and

court     time    wasted        had   the     case    been        mistried       or

meaningfully continued at that point.                 The blame, however,

would have lain squarely at the feet of the State.                          Given

the circumstances of late disclosure, it was “unreasonable

to expect that any attorney, no matter his or her level of

experience,      could     be    adequately       prepared       to    conduct    a

bifurcated       capital    trial       for   a    case     as    complex      and

involving as many witnesses as the instant case.”                        State v.

Rogers, 352 N.C. 119, 125, 529 S.E.2d 671, 676-676 (2000).
                                  66

The court‟s refusal to adequately remedy its decision to

allow   untimely   endorsed    experts    denied   Ms.   Greene   her

rights to due process, effective assistance of counsel, and

enforcement of statutory discovery obligations, requiring

reversal of the convictions.           Cook, 362 N.C. at 296-296,

661 S.E.2d at 880-881; Blankenship, 178 N.C. App. at 356,

631 S.E.2d at 212.

     V.   MS. GREENE WAS DENIED A FAIR TRIAL DUE TO
     PERVASIVE PROSECUTORIAL MISCONDUCT.

     Assignments    of Error Nos.       46-52, 55-57, 60-61,
     64, 1136

     Standard of Review:

     “A defendant is entitled to a new trial when improper

prosecutorial conduct prejudices the defendant, affecting

[her] right to a fair trial.”           The record is reviewed de

novo. State v. Walls, 342 N.C. 1, 66, 463 S.E.2d 738, 773

(1995).

     Argument:

           Every person charged with a crime has
           an absolute right to a fair trial. By
           this it is meant that [she] is entitled
           to a trial before an impartial tribunal
           and an unprejudiced jury in keeping
           with substantive and procedural due
           process requirements of the Fourteenth
           Amendment. It is the duty of both the
           court and the prosecuting attorney to
           see that this right is sustained.

6
 A Motion to Amend the Record was filed simultaneously with this Brief
to add Assignment of Error No. 113.
                                    67

State v. Britt, 288 N.C. 699, 710, 220 S.E.2d 283, 290

(1975).     Misconduct by the prosecution before and during

trial deprived Ms. Greene of this fundamental right.               “The

trial court‟s rulings did not deter the misconduct, and did

little to prevent it from influencing the jury.”             State v.

Sanderson, 336 N.C. 1, 20, 442 S.E.2d 33, 44 (1994).              Under

the Fourteenth Amendment to the United States Constitution

and Article I, §19 of the North Carolina Constitution, Ms.

Greene‟s convictions must be reversed due to the cumulative

effect of pervasive prosecutorial misconduct.               Sanderson,

336 N.C. at 7, 442 S.E.2d at 37; State v. Phillips, 240

N.C. 516, 529, 82 S.E.2d 762, 771 (1954).

       A.   The Prosecution Repeatedly Misrepresented
       Discovery Orders When Confronted with Allegations
       of Late Discovery.

       Under Rule 3.3(a) of The Revised Rules of Professional

Conduct of the North Carolina State Bar, all lawyers owe a

duty of candor to the tribunal and “shall not knowingly

make   a   false   statement   of    material   fact   or   law   to   a

tribunal or fail to correct a false statement of material

fact or law previously made to the tribunal by the lawyer.”

One byproduct of North Carolina‟s unique method of judicial

assignments is that multiple judges conduct the pre-trial

hearings and trial in a single case.            An individual judge

may be unfamiliar with all of the rulings previously made.
                                        68

A party thus owes the duty of candor to each judge to

truthfully relate the substance of prior orders.                               These

prosecutors       repeatedly       misrepresented            discovery     orders,

thereby hampering the discovery process and crippling the

trial     judge‟s        ability       to     assess         whether     discovery

violations occurred.

       On 17 March 2006, Judge Long ordered the State to

produce discovery.            (Vol. Ap. 11-13)             As he did not set a

special deadline, the State was required to produce expert

witness      discovery     “within       a     reasonable       time     prior     to

trial....”       N.C.G.S. §15A-903(a)(2).                  On 3 and 6 November

2006     and     22    January        2007,        Judge     Spainhour     ordered

production of ATF discovery by 1 March 2007. (Rp. 33-36;

Vol. Fp. 29; Vol. Gp. 16-17; Vol. Hp. 2-4)

       The     hearing    on    ATF    discovery           compliance    was     held

before Judge Collier.           When the defense complained that the

State failed to produce complete discovery from the ATF,

the    prosecutor      told    Judge     Collier       that     Judge    Spainhour

never set a discovery deadline.                (Vol. Jp. 34)

       On 17 August 2007, the prosecution moved to continue

the     trial    and     complained         that    the     discovery     schedule

hampered its ability to adequately prepare.                       (Vol. Lp. 19)

Judge Spainhour denied the motion and ruled that the State

could adequately prepare its case in the time remaining and
                                         69

that its experts could review the defense expert reports

during voir dire.          (Rp. 35-36; Vol. Lp. 24)

       On 23 and 30 October 2007, the prosecutors admitted

that Judge Spainhour never said that the State could obtain

new    experts.    (Vol.       12Tp.   2654;    Vol.    17Tp.     4079)         On   1

November 2007, however, the prosecutor told the trial court

that    Judge     Spainhour         anticipated     that    the    State    would

retain new experts.            (Vol. 19Tp. 4386)

       On 13 December 2007, the trial court asked whether SBI

Agent Heffney had been timely disclosed.                        The prosecutor

responded that he had, though Heffney was not disclosed

until three weeks after trial started.                     (Vol. 17Tp. 4071;

Vol. 41Tp. 9715)           When the court then asked whether Judge

Spainhour    set    a    date       certain   for   State    disclosure,         the

prosecutor responded that he had not.                      (Vol. 41Tp. 9716)

Though    the     answer    was      technically       correct,    since    Judge

Spainhour    did    not     enter      any    orders    relating    to     non-ATF

experts, the answer was misleading since Judge Long had

ordered timely expert witness disclosure.

       Having not participated in any pre-trial hearing, the

trial    judge     was    at    a    distinct     disadvantage      as     to    the

contents of pre-trial orders.                 The prosecution bore a duty

to candidly       advise the trial court that (1) Judge Long

ordered disclosure of expert witnesses prior to trial, (2)
                                   70

Judge Spainhour set a date certain for disclosure of ATF

evidence, and (3) Judge Spainhour did not authorize the

State   to    disregard   Judge   Long‟s    order   by   selecting   new

expert witnesses after the start of trial.                Instead, the

prosecution, frustrated by its inability to continue the

trial, misled the trial court about discovery orders in its

quest to add new experts.               No prosecutor    can disregard

court orders, or

             distort   the   truth  when   presenting
             argument     to    the    court....‛[A]n
             attorney‟s duty of candor toward the
             tribunal is central to the truth-
             seeking function of any court.‟    In re
             Disciplinary Proceedings Against Kalal,
             2002 WI 45, P1, 252 Wis.2d 261, 643
             N.W.2d 466. All courts have a right to
             expect that the attorneys appearing
             before them, regardless of the zeal
             they have for their client‟s cause,
             will adhere to the fundamental duty
             imposed on them as officers of the
             court to speak honestly.

Office of Lawyer Regulation v. Kohler, 316 Wis.2d 17, 31-

32, 762 N.W.3d 377, 384 (2009).

    The trial court permitted the State to add ATF and

non-ATF experts during trial, which violated all pre-trial

orders.      The prosecution‟s failure of candor prejudiced Ms.

Greene by denying her the benefit of the discovery orders

and hampering trial preparation.

    B.   The   Prosecution  Failed   to  Perform   its
    Statutory and Constitutional Discovery Duties.
                                               71

       As argued in Issues I, III, and IV, the State did not

comply with discovery duties.                       The reasons for the failures

were       not    legally          justified.        As    a     result      of   discovery

violations, defense preparation was severely hampered and

information reached the defense long after it could have

first been effectively utilized.                       (Vol. 38Tp. 8972)

       For example, the prosecutor justified the failure to

disclose the 10 January 2006 conversation between Deputy

Mason and Dr. Owens and the 10 December 2006 report by Sgt.

Wensil,          both    disclosing         that    Ms.      Greene      told     Bell-Diss

about the fire before Bell-Diss called 911, on her personal

belief that the information was false.                           (Vol. 33Tp. 7419)

       Disclosure of this information was mandated by Brady

v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215 (1963).                                      Brady

tends “to preserve the criminal trial, as distinct from the

prosecutor‟s private deliberations, as the chosen forum for

ascertaining the truth about criminal accusations.”                                   Kyles

v. Whitley, 514 U.S. 419, 440, 131 L.Ed.2d 490, 509 (1995).

“It    is    not        the    role    of     the    prosecutor         to   decide      that

facially          exculpatory         evidence        need     not      be   turned      over

because the prosecutor thinks the information is false.”

In    re    Miranda,          43    Cal.4th     541,      577,    182     P.2d    513,    539

(2008).          The     defense       lost     the       benefit       of    using      this

information in voir dire or opening statement.
                                      72

     The prosecution did not comply with §15A-903 or State

v. Shannon, 182 N.C. App. 350, 642 S.E.2d 516 (2007), and

advanced facially preposterous arguments to avoid Shannon.

(Vol.   1Tp.    42;   Vol.   7Tp.     1712,   1714,    1771)     Discovery

provisions exist to prevent the descent of “the adversary

system of prosecution...to a gladiatorial level unmitigated

by any prosecutorial obligation for the sake of truth....”

Kyles, 514 U.S. at 439, 131 L.Ed.2d at 509.

     The prosecution even withheld a transcript of the 911

call on the ground that the transcript was “work product”

and gave the defense an edited version of the call.                      When

the full 911 tape was played at trial, the defense was

surprised by its contents.            The trial court‟s response was

to merely admonish the State for not disclosing that the

tape had been edited.        (Vol. 25Tp. 5946-5948)

     The defense was constantly hampered by the discovery

failures.      Counsel prepared for trial unaware that evidence

supported what Ms. Greene had told them:                    that she told

Bell-Diss about the fire before the 911 call (Vol. 33Tp.

7411)   and    consistently     denied     killing    her   children     when

interrogated     by   police.    (Vol.     21Tp.   4958)       Counsel    had

difficulty     assimilating     and    accessing      information   within

the thousands of pages disclosed during trial. (Vol. 12Tp.

2785; Vol. 19Tp. 4561; Vol. 21Tp. 4955; Vol. 24Tp. 5789)
                                             73

Counsel had to run witness statements through the district

attorney‟s      office       to    learn     the       witnesses‟        addresses     and

telephone      numbers.       (Vol.      23Tp.           5531;    Vol.    24Tp.    5541)

Counsel conducted voir dire unaware of the import of the

State‟s questions. (Vol. 6Tp. 1180) Counsel spent valuable

time     preparing      to        cross-examine           experts    not      disclosed

before      trial,   only         to   not        face    the     witnesses       as   the

prosecution played some cat-and-mouse game.                          The failure to

honor discovery obligations, required by Rule 3.8(d) of The

Revised Rules of Professional Conduct, case law, and the

Due Process Clauses of the United State and North Carolina

Constitutions, denied Ms. Greene a fair trial.

       C.   The   Prosecution Misrepresented  Evidence
       About Diphenhydramine in Opening Statement and
       Closing Argument.

       In     opening    statement,           Mr.        Adinolfi    described         Ms.

Greene‟s medical condition after the fire, and then said,

“By contrast, Daniel and Addie suffered from large amounts

of   drowsy     allergy      medication           in     their    systems.”        (Vol.

24Tp.       5563)       In    closing        argument,           Assistant     District

Attorney Shanley advanced her personal opinion as to when

antihistamines were administered:

              Now, we all have our own theories about
              this case. And ladies and gentlemen of
              the jury, we will not know every detail
              the defendant did.   Because on January
              the 10th and January 13th, she didn‟t
                                   74

           want to give all that.       But we‟re
           allowed to look at the evidence and
           make our own assessments. I contend to
           you this:      Daniel knew what that
           medicine did to him.   Daniel heard his
           father say, don‟t give that to them
           anymore.   I think on January the 10th,
           Daniel wasn‟t going to take it.   Addie
           did. Addie is younger and she took it.
           I contend that Lisa Greene was waiting
           for them to fall asleep, Daniel never
           did, and when Daniel at 12:00 is still
           awake and wants a snack, I think Lisa
           Green found her opportunity.   Why not.
           Why not chop up anything you want to
           and put it in those noodles. Why not.

           Because that is your opportunity to
           make sure that your son, who is ten
           years old now, who isn‟t gonna just do
           what you say like Addie will, takes
           this medicine.   Ladies and gentlemen,
           she couldn‟t hide that.    (Vol. 60Tp.
           13407)

    Before trial, the prosecution was fully aware that no

evidence supported these theories.           Toxicology worksheets

prepared in August 2006 documented that diphenhydramine did

not contribute to either child‟s death.           (Vol. 33Tp. 7441-

7442, 7487)    Dr. Garside, Deputy Chief Toxicologist of the

Office   of   the     Chief   Medical   Examiner,     met     with     the

prosecutors prior to trial and told them that Daniel had a

trace    amount     of    diphenhydramine    within      the     normal

therapeutic range (Vol. 40Tp. 9354, 9362), Addison had an

amount   within     the   normal   therapeutic   range   (Vol.       40Tp.

9363), and that neither amount was “large.”                 (Vol. 40Tp.
                                   75

9374)    Holes kicked into the bedroom wall, soot on the

bottom of Daniel‟s feet, the position of Daniel‟s body at

the time of death, and the position of Addison‟s sleep mask

documented that the children were active during the fire.

(Vol. 29Tp. 6825; Vol. 31Tp. 7122, 7125; Vol. 33Tp. 7462;

Vol. 40Tp. 9454; Vol.52Tp. 11733)            While the contents of

Daniel‟s stomach showed that he ate within two hours of

death (Vol. 33Tp. 7463-7464), his stomach did not contain

undigested pills and the State had no evidence that Ms.

Greene prepared that food.        (Vol. 33Tp. 7480)

     Trial evidence     confirmed that diphenhydramine was a

non-issue.   Dr. Sullivan opined that he did not think that

diphenhydramine played a role in this fire and he could not

determine that it was administered with noodles.                   (Vol.

33Tp. 7489-7490)      Dr. Garside testified that each child‟s

diphenhydramine    level    was   within   the    normal    therapeutic

dose.   (Vol. 40Tp. 9362)         No determination could be made

when the medication was taken.          (Vol. 40Tp. 9381)      The only

evidence about antihistamines came from Ms. Greene‟s pre-

trial   statements,   which   related      that   the   children    were

given medication at about 8:00 p.m. (Vol. 35Tp. 7995), at

least five hours before the fire started.                  Evidence was

introduced   about    the   children‟s     breathing    issues     (Vol.

29Tp. 6624; Vol. 50Tp. 11304), and that there was nothing
                                    76

unusual    about   children    with      asthma   or    allergies      taking

over-the-counter allergy and cold relief medication.                    (Vol.

31Tp. 7130)

    Nine     weeks   into    trial,      the   August    2006    toxicology

worksheets finally surfaced. (Vol. 33Tp. 7416, 7455)                      The

defense    asked   whether    the   State      had    failed     to   provide

discovery     supporting      Mr.   Adinolfi‟s         opening    statement

claim.     Ms. Shanley responded that she had no discovery to

produce.     She contended that “therapeutic dose” could mean

“very     high     level”     and     that      one     could     determine

“subjectively” that each child had a very high amount of

diphenhydramine in their system.               (Vol. 37Tp. 8490, 8494)

The trial court did not impose a sanction for the opening

statement, though it understood that the State would not

present any evidence supporting that either child took a

large amount of diphenhydramine.               (Vol. 37Tp. 8495)          The

court did not intervene during closing argument.

    The “proper function of an opening statement is to

allow the party to inform the court and jury of the nature

of his case and the evidence he plans to offer in support

of it.”     State v. Paige, 316 N.C. 630, 648, 343 S.E.2d 848,

859 (1986).      “In previewing the evidence, counsel generally

should not...‛exaggerate or overstate‟ the evidence,” State

v. Freeman, 93 N.C. App. 380, 389, 378 S.E.2d 545, 551
                                       77

(1989), quoted in State v. Jaynes, 353 N.C. 534, 558, 549

S.E.2d 179, 197 (2001), and may not “allude to any matter

that    the   lawyer      does   not   reasonably         believe...will     be

supported by admissible evidence....”                 The Revised Rules of

Professional Conduct, Rule 3.4(e).                   In closing argument,

counsel likewise cannot distort or misstate evidence or put

forward inflammatory facts not of record.                    E.g. Sanderson,

336 N.C. at 15, 442 S.E.2d at 42.

       Just   as   the    prosecutors        did   not    believe    that    Ms.

Greene told Biss-Dell that her house was on fire, they did

not believe that the children died for any reason other

than    having     been    in    a   drugged       stupor.     This    was     a

collective       theory    reached     before       Ms.   Greene‟s    arrest.

(Vol. 36Tp. 8445)         That the belief persisted in the face of

later    toxicology       testing      was    demonstrated      by    Captain

Smith‟s testimony that he had never before responded to a

fire where the deceased victims had been drugged.                       (Vol.

25Tp. 5850)        The State created a false picture in opening

statement that hovered over the rest of the case and could

have been used by the jury to support a finding of malice.

Given the contrary state of the evidence, the prosecution

lost sight of its duty to see “that justice shall be done.”

Berger v. United States, 295 U.S. 78, 88, 79 L.Ed. 1314,

1321 (1935).
                                         78

       D.   The   Prosecution   Asked   Questions                     Which
       Assumed Facts Never Placed into Evidence.

       The prosecution asked questions that presupposed facts

not in evidence.        By doing so, “the prosecutor succeeded in

testifying      to   his   own     knowledge     or    beliefs   through      the

witness.”       Sanderson, 336 N.C. at 14, 442 S.E.2d at 41.

“If    the   prosecuting      attorney        wishes    to    vouch    for     the

existence or the truth of a fact in the trial of a cause,

he should retire from the case, have another appointed to

prosecute,      take   the    stand      as     any   other   witness,        give

competent       evidence,         and    subject       himself    to     cross-

examination.”        Phillips, 240 N.C. at 524, 82 S.E.2d at 768.

       Ms. Greene told Pfister and Ghent what was variously

recorded as “When I turned, I caught my blanket on fire”

(Vol. 36Tp. 8463) and “I went back to my daughter‟s room

and caught that blanket on fire.”                     (Vol. 35Tp. 8027) On

cross-examination of defense arson expert Dennis Smith, Mr.

Adinolfi contended:

             She said that she caught              a blanket on
             fire,   which, if  you               know,  that‟s
             Cabarrus County for set               it on fire.
             Did you know that? That              usage? (Vol.
             53Tp. 11848)

Though no witness testified that Cabarrus County ascribed

an    unusual   meaning      to    the   word    “caught,”     and    Detective

Pfister testified that he never asked Ms. Greene how the
                                        79

blanket caught on fire (Vol. 37Tp. 8538), the trial court

overruled the defense objection.               (Vol. 53Tp. 11848)

       The prosecution claimed, in the absence of evidence,

that    Ms.   Greene      removed      expensive       items    from    the     home

before the fire.           Sgt. Culp was asked if he had “seen

anything that looked like it would be anywhere from 20 to

40,000   dollars     of    photographic        equipment?”            The    defense

objection was overruled and Sgt. Culp answered “no.”                           (Vol.

30Tp. 6972)       Mr. Lentini was asked if he was aware that Ms.

Greene told a friend that she had moved her photographic

equipment out of the house.               Though no such testimony had

been received, the defense objection was overruled.                            (Vol.

52Tp. 11614)       Mr. Adinolfi asked Mr. Smith, “Now, you also

ignored the fact that she removed an expensive laptop and

20,000    dollars      worth     of    photo    equipment       did    you     not?”

(Vol.    53Tp.    11837)         The     court     overruled      the        defense

objection.       (Vol. 53Tp. 11837)            On re-cross-examination of

Mr. Smith, Mr. Adinolfi again asked if he was aware that

Ms.    Greene‟s    “best    photo       equipment,      her     most    expensive

computer”     made   it    out    of    the    fire.      The    court       finally

sustained an objection (Vol. 53Tp. 11885), but the seed had

already been sown.

       Defense    expert       Dennis     Smith    testified          that     Agent

Mullis did not test her hypothesis that the fire started in
                                       80

the alcove and instead inferred that an unknown ignition

source started the fire.             (Vol. 53Tp. 11842)             He explained

that it is permissible for an arson investigator to infer

an ignition source when an accelerant or incendiary device

is found.     Mr. Adinolfi responded,

              But anybody on the jury, anybody in the
              public knows if you‟ve watched one
              episode of CSI, that most people don‟t
              use accelerants to set fires, do they?
              (Vol. 53Tp. 11846)

The defense objection was overruled.                    (Vol. 53Tp. 11846)

No evidence had been presented, from CSI or an actually

credible source, as to the percentage of fires started by

accelerants.        Evidence    had    been        admitted,       however,    that

18,000     reported      structure    fires    in     2002    were    caused     by

candles, that candles caused 5% of reported home fires in

2001 and 2002, and that “[c]andles are responsible for 4%

of   fires,    7%   of    civilian    fire    deaths,        and    12%   of   fire

injuries.”     (Vol. 52Tp. 11559-11561)

      On    cross-examination         of     Ms.     Greene‟s       mother,     Ms.

Shanley asked:

              And are you aware that after her
              arrest, your daughter was asking some
              of the inmates how to fake an insanity
              plea? (Vol. 63Tp. 12476)

No such evidence was received and the trial court overruled

the defense objection.         (Vol. 63Tp. 12476, 12493)
                                      81

      By injecting information never placed into evidence,

the   prosecution       encouraged         the     return       of   capricious

verdicts, thereby denying Ms. Greene a fair trial.

      E.   The Prosecution Circumvented Court Rulings
      Designed to Prevent It From Presenting Irrelevant
      and Highly Prejudicial Information to the Jury.

      On     8   January     2008,         the     prosecution        disclosed

impeachment      material   relating        to     defense      expert    Dennis

Smith.      (Vol. 52Tp. 11679)       Due to the late disclosure, the

trial court prohibited the State from using it on cross-

examination.        (Vol. 52Tp. 11681)           Mr. Adinolfi nevertheless

concluded     his    cross-examination       of     Mr.    Smith     by   asking,

“Did you miss a dead body at a scene in Atlantic City some

years ago?”      (Vol. 53Tp. 11862)              The trial court sustained

an objection and struck the question. (Vol. 53Tp. 11862)

Though the court was distressed that Mr. Adinolfi directly

violated its order, it could not come up with any remedy

other than striking the question.                (Vol. 53Tp. 11927)

      The    State    intended   to    introduce          evidence    that    Ms.

Greene     performed    community     service       at    the    Midland     Fire

Department and once dated a fireman.                      (Vol. 30Tp. 6929-

6930; Vol. 27Tp. 6365)           The State planned to argue that

those experiences taught Ms. Greene how to commit arson.

The trial court ruled that the community service evidence

was not admissible through Sgt. Culp (Vol. 30Tp. 6983) and
                                   82

the State did not thereafter offer the evidence. The court

ruled that it would not allow testimony that Ms. Greene had

dated a fireman.     (Vol. 27Tp. 6367)         The following exchange

nonetheless occurred on cross-examination of Dennis Smith:

            Adinolfi: Are   you   aware  that   Lisa
            Greene, six months prior to the fire,
            spent time at Midland Fire Department?

            Campbell: Objection.

            Court:    Overruled.

            Smith:    No, I‟m not.

            Adinolfi: Are you aware that she dated
            a firefighter at one time?

            Smith:    Yes.

            Adinolfi: Are  you  aware  that   they
            shared information about this sort of
            thing?

            Campbell: Objection, Your Honor.

            Court:    Sustained.

            Campbell: Move to strike the question.

            Court:    Ladies and gentlemen of the
            jury, disregard the last question asked
            by the assistant district attorney.
            (Vol. 53Tp. 11847-11848)

When Ms. Shanley used a PowerPoint in closing argument to

remind the jury that Ms. Greene had dated a fireman, no

action was taken on the defense objection, even after the

defense   reminded   the   court    of   its    order   excluding   the

evidence.    (Vol. 60Tp. 13384-13387, 13431-13432)
                                    83

    The court granted a motion in limine to prohibit the

State   from   mentioning     DSS   records     about    unsubstantiated

allegations    of    abuse.     (Vol.    1Tp.    47-48)       The        court

overruled objections when the State told prospective jurors

that they would hear evidence of child abuse.                 (Vol. 3Tp.

586, 675)      When the defense complained that the questions

violated the court‟s order, the State responded that it did

not think the prohibition applied to voir dire.                   The court

permitted the questioning, ruling that it did not know what

information the DSS records contained.           (Vol. 3Tp. 751-753)

    F.   The Prosecution Accused                Mr.     Lentini     of
    Illegally Working on This Case.

    In an attempt to discredit Mr. Lentini, Mr. Adinolfi

closed his cross-examination by contending that Mr. Lentini

committed a crime by working on this case:

            Adinolfi: Finally, your investigation
            in this matter was illegal, wasn‟t it?

            Lentini:    It was not.

            Adinolfi: You do not have a license to
            be a private investigator in this
            state, do you, sir?

            Campbell: Objection.

            Lentini:    Nor do I need one.

            Court:      Overruled.

            Adinolfi: Actually,     the     general
            statutes would differ with you.   (Vol.
            52Tp. 11659)
                                        84

Mr. Adinolfi went on to inform Mr. Lentini that conducting

an illegal investigation constituted a Class I misdemeanor

and,   “You    know    there     are    laws      in    this    state      regarding

perjury as well.”        (Vol. 52Tp. 11661)

       On redirect examination, Mr. Lentini testified that he

was    aware    that    the    prosecution             contacted     the     Private

Investigators Board about his work status.                            Mr. Lentini

testified that, by statute, an investigator working through

counsel does not have to be licensed.                      (Vol. 52Tp. 11662-

11663)     N.C.G.S. §74C-3(b) indeed provides that an arson

investigator     is     exempt    from       licensing         and   registration

requirements     when    acting        as    an   attorney‟s         agent.     The

allegation leveled against Mr. Lentini was baseless.

       G.   The Prosecution Inflamed the Passion of the
       Jury By Arguing That If the Jury Found That the
       Fire was an Accident, That Meant Daniel Macemore
       Was a Murderer.

       Ms. Shanley told the jury in closing argument:

              By finding that this case was an
              accident, you‟re deeming Daniel the
              killer of his sister.    This wasn‟t an
              accident. Daniel is not at fault. He‟s
              the hero. (Vol. 61Tp. 13606)

The trial court overruled two objections to the argument

(Vol. 61Tp. 13606), thereby signaling to the jury that it

was proper to reject accident on the basis urged by the

prosecutor.      As a matter of law, no one is a “killer” in an
                             85

accidental death.   The argument was designed to lead the

jury “away from the evidence by appealing instead to their

sense of passion and prejudice.”   State v. Jones, 355 N.C.

117, 132, 558 S.E.2d 97, 107 (2002).

    H.   The Prosecution Demeaned Defense Counsel in
    Closing Argument.

         It is well-established that a trial
         attorney may not make uncomplimentary
         comments about opposing counsel, and
         should     „refrain    from     abusive,
         vituperative, and opprobrious language,
         or   from   indulging  in   invectives.‟
         State v. Miller, 271 N.C. 646, 658-59,
         157 S.E.2d 335, 346 (1967).

Sanderson, 336 N.C. at 10, 442 S.E.2d at 39.    Ms. Shanley

started her closing argument by telling the jury:

         Now, the defense doesn‟t want you to
         get close enough to see. It reminds me
         of when you go to a carnival and they
         have the game, the shell game, the
         three shells and the pea or maybe it‟s
         a coin, and they‟re twisting around
         very fast, and you‟ve got to guess
         which one it is.    Why are they moving
         it so fast? So you don‟t see that they
         push the pea and the coin off the
         table.    So it doesn‟t matter which
         shell   you   pick,    there‟s  nothing
         there....

         Ladies and gentlemen, only by you
         leaving your common sense and reason at
         the steps of the courthouse would you
         believe the defense, that everyone in
         Cabarrus County is lying except their
         client, the same client who is now up
         to five versions of what happened on
         January 10th.    Cabarrus County isn‟t
         lying, but it‟s easy for these defense
                                       86

            attorneys to        say    that.          They‟re    not
            from here.

            Dubs:       Objection, Your Honor.

            Shanley:    And when this trial is over –

            Court:      Overruled.

            Shanley: When this trial is over, they
            will pack up and head to the next
            county and accuse those people of doing
            the same thing.     (Vol. 60Tp. 13334-
            13336)

    Comparing defense counsel to carnival hucksters and

suggesting    that    county    loyalty        was     a   proper      basis   for

decision-making “certainly had the potential to bias the

jury against defendant‟s counsel and, thereby, prejudice

[her] case.”    Sanderson, 336 N.C. at 11, 442 S.E.2d at 39.

    I.   The Prosecution Vouched for the Credibility
    of Its Witnesses.

    “A     prosecutor     may    not        express    a   personal      opinion

concerning the veracity of a witness‟ testimony.                        State v.

Miller, 271 N.C. 646, 157 S.E.2d 335 (1967).”                           State v.

Best, 342 N.C. 502, 518, 467 S.E.2d 45, 55 (1996). Ms.

Shanley repeatedly told the jury who had told the truth:

Cabarrus     County     personnel           (Vol.      60Tp.     13335),       law

enforcement    officers    (Vol.       60Tp.     13336),        Jerry   Macemore

(Vol. 60Tp. 13354), Agent Tuley, and Dr. Sheppard. (Vol.

61Tp. 13552, 13581)       The trial court overruled an objection

to the vouching for Cabarrus County personnel.                      (Vol. 60Tp.
                                       87

13335)    Though no objections were lodged to the subsequent

vouching, the trial court              was charged with the duty to

vigilantly     monitor       closing        arguments    to     “ensure     that

attorneys        honor        the      aforementioned            professional

obligations” and to “intervene as warranted....”                          Jones,

355 N.C. at 128, 129, 558 S.E.2d at 104, 105.

      J.   The      Prosecutor      Opined     as   to   Ms.    Greene’s
      Guilt.

      A prosecutor may not opine in closing argument as to

the defendant‟s guilt.              §15A-1230(a).        Ms. Shanley twice

opined    as   to   guilt.     The     trial    court    took    no   remedial

action.    (Vol. 60Tp. 13419; Vol. 61Tp. 13455)

      K.   The Prosecution Distorted                Mr. Carpenter’s
      Testimony    and Was   Abusive                 During  Cross-
      Examination.

      A prosecutor cannot “mischaracterize[] the meaning of

the   answer    given”   on    cross-examination         or    ask    questions

which, by “the very asking of it sufficed to convey the

prosecutor‟s personal opinion to the jury, regardless of

the witness‟ answer.”          Sanderson, 336 N.C. at 13, 14, 442

S.E.2d at 41.         A trial court, under Rule 611(a), should

exercise discretion to control cross-examination “for the

purpose of protecting the witness from prolonged, needless,

or abusive examination.”              State v. White, 340 N.C. 264,

299, 457 S.E.2d 841, 848 (1995).               The court did not act.
                                   88

    The      court   overruled     an   objection    when     Assistant

District Attorney Barcellona asked Mr. Carpenter, “Now, you

are aware that the defense is making up their own fire at

this point, correct?”        (Vol. 55Tp. 12275)

    In      summarizing   testimony,       the   following    exchange

occurred:

            Barcellona:    You said in Test 3, one
            of the problems you have with Test 3,
            is that when Daniel when –

            Carpenter:    Wait a minute, let‟s be
            clear.   I don‟t have a problem with
            Test 3. Test 3 is data, and now I can
            use that data to test hypotheses.
            That‟s what we‟re doing.  I don‟t have
            problems with the test, per se, I have
            problems with the – I am using it to
            hypothesis.

            Barcellona:    Well, I believe one of
            the hypotheses you tested with Test 3 –
            well, let me see if I understand this.
            You   had   an   issue   with   Daniel‟s
            placement with Daniel‟s body and the
            debris that was under Daniel‟s body
            that   was  found.     Do   you   recall
            testifying to that?

            Carpenter:    I don‟t know if I had an
            issue with it, I‟m saying that it –
            that‟s – the physical evidence is that
            existed, yes. (Vol. 55Tp. 12287-12288)

    The      trial   court     overruled    an    objection    to   the

following:

            You are aware, Mr. Carpenter, that this
            entire debate we‟ve been having, the
            doorknob temperatures, the relevance of
            when the smoke detector goes off, the
                                   89

           temperature where skin burns when it is
           in contact with metal, temperatures in
           a room, the heat, smoke defendant would
           have faced when opened the door, the
           flames in the doorway, don‟t even
           matter because the defendant never said
           any of it? (Vol. 55Tp. 12388)

    “The      prosecutor‟s     questions   were      not     designed    to

elicit   competent     evidence.        More    in     the     nature    of

rhetorical assertions, their likely effect was unfairly to

prejudice the jury against this witness.”               Sanderson, 336

N.C. at 13, 442 S.E.2d at 40.

    From      the    outset,     the    prosecution          was    overtly

emotionally    involved   in    this    case.        (Vol.    Gp.   20-32)

“Ministers of the law ought not to permit zeal for its

enforcement to cause them to transgress its precepts.                   They

should remember that where the law ends, tyranny begins.”

State v. Warren, 235 N.C. 117, 119, 68 S.E.2d 779, 780

(1952). The State‟s actions were offensive to the sound

maintenance of our judicial system and, to a reasonable

probability, affected the outcome of the guilt phase.                   Due

process demands that Ms. Greene be granted a new trial.

    VI. THE TRIAL COURT ABUSED ITS DISCRETION IN
    PERMITTING CAPTAIN SMITH TO OFFER HIS OPINION AS
    TO THE POINT OF ORIGIN OF THIS FIRE.

    Assignment of Error No. 12, Rp. 403

    Standard of Review:
                                        90

    A trial court‟s decision whether a witness‟ testimony

constitutes lay or expert opinion is reviewed for abuse of

discretion.       State v. Davis, 106 N.C. App. 596, 601, 418

S.E.2d 263, 267 (1992).

    Argument:

    The trial court permitted Captain Brian Smith of the

Kannapolis Fire Department to offer a lay opinion on the

point of origin of this fire (Vol. 25Tp. 5957), a matter

requiring expertise that Captain Smith                      admitted      lacking.

(Vol.   25Tp.      5823,     5826)      The    rulings        were      arbitrary,

requiring reversal of the murder convictions.

    After        Captain      Smith     described           the   firefighter‟s

activities       and    discovering      the    children‟s        bodies     (Vol.

25Tp. 5812-5823), the prosecutor sought his opinions about

the fire.        Smith testified that he was not “by any means”

either an arson expert or arson investigator, but that he

could   identify          where     this      fire     started       from       past

experiences.       (Vol.    25Tp.     5823,     5826)         Over      objection,

Captain Smith testified that the area of most char is the

place   where     fires     start     and     the    area    of   the    heaviest

charring    in    this     fire   was   in     the    alcove      and    over   the

bedroom door.          (Vol. 25Tp. 5826-5827)

    Following the testimony, the defense complained that

Captain Smith was permitted to give expert opinion despite
                                            91

having testified to a lack of training.                          The prosecutor

responded that State v. Blankenship, 178 N.C. App. 351, 631

S.E.2d 208 (2006), permitted such questions to be asked.

The trial court did not revisit the objections and let the

opinion stand.         (Vol. 25Tp. 5956-5958)

      In Blankenship, an SBI agent testified about a matter

not     typically      within      a    lay      person‟s   knowledge.          The

elicitation      of    the   agent‟s        qualifications       made   it   plain

that he possessed the scientific knowledge to assist the

jury in understanding the evidence, N.C.G.S. §8C-1, Rule

702(a), thus requiring that the agent‟s identity and his

opinions be disclosed prior to trial.

      When specialized knowledge is not required to make an

opinion “helpful to a clear understanding of [the witness‟]

testimony or the determination of a fact in issue,” a lay

witness may offer an opinion under Rule 701. Lay opinion

usually consists of “shorthand statements of fact” in which

the witness relates the “instantaneous conclusions of the

mind as to the appearance, condition, or mental or physical

state     of    persons,     animals,            and   things,    derived    from

observation of a variety of facts presented to the senses

at one and the same time.”                  State v. Skeen, 182 N.C. 844,

845-846,       109    S.E.   71,       72   (1921)     (quoted    in    State    v.

Johnston, 344 N.C. 596, 609, 476 S.E.2d 289, 296 (1996)).
                                     92

    Lay     witnesses       may    deduce     common       inferences      from

personal observations, but not offer opinions on scientific

matters which are “of such a nature as to render valueless

any opinion but that of an expert.”                  State v. Hedgepath,

350 N.C. 776, 791, 517 S.E.2d 605, 614-615 (1999) (quoting

State v. McCain, 6 N.C. App. 558, 561, 170 S.E.2d 531, 533

(1969).     See    State    v.    Taylor,    354    N.C.    28,   41-42,    550

S.E.2d 141, 150-151 (2001); State v. Davis, 349 N.C. 1, 30,

506 S.E.2d 455, 471 (1998).

    Recent        developments      in      arson    investigation         have

“demolished       prevailing      notions      about       fire   behavior.”

Grann, “Trial By Fire: Did Texas Execute an Innocent Man?”

The New Yorker, p. 60-61 (7 September 2009). (Appendix)

Particularly      suspect    are    opinions        by   firefighters       who

received    on-the-job      training      “from     „old-timers‟     in     the

field, who passed down a body of wisdom about the tell tale

signs of arson, even though a study in 1977 warned that

there     was   nothing     in     „the     scientific       literature      to

substantiate their validity.‟”              Id. at 58.        The NFPA 1033

warns investigators to beware of “false origins.”                       (Vol.

51Tp. 11389)      The NFPA 921 likewise notes,

            Areas of greatest damage are indicators
            of high heat release rate, ventilation
            effects, or long exposure. Such areas,
            however, are not always the point of
            fire origin. (Vol. 51Tp. 11400-11401)
                                     93

    The area of lowest and most intense burning in this

fire was, as Captain Smith observed, in the alcove.                     (Vol.

48Tp. 10855)      ATF tests demonstrated, however, that a fire

originating in the bedroom produced the lowest and greatest

char in the alcove.          (Vol. 51Tp. 11401-11402; Vol. 52Tp.

11711,   11726;    Vol.    54Tp.    12078)       Captain       Smith   merely

voiced   the    discredited       myth    that   the    area    of   greatest

damage is the point of origin.             (Vol. 51Tp. 11398)

    Not        every     person     with     fire-related        experience

qualifies as a cause and origin expert, as the prosecution

recognized when it argued that Tuley was needed as a cause

and origin expert because Dr. Sheppard lacked sufficient

qualifications.        (Vol. 41Tp. 9712)          No showing was made

that Captain Smith could so qualify and the court did not

require that he be qualified.

    This jury had enough on its hands to sort through

conflicting     expert    opinions       about   this   fire‟s       behavior.

Permitting the jury to weigh lay opinion constituted an

abuse of discretion affecting the reliability of the fact-

finding, thereby depriving Ms. Greene of a fair trial as

guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution and Article I, §§18, 19, 23, and

24 of the North Carolina Constitution.
                                      94

    VII. THE TRIAL COURT ERRED IN ADMITTING MS.
    GREENE’S POST-ARREST STATEMENTS ON THE GROUND
    THAT THE STATEMENTS WERE INVOLUNTARY.

    Assignments of Error Nos. 24-42, Rp. 407-413

    Standard of Review:

    The trial court‟s findings on a motion to suppress are

binding    if    supported     by   competent    evidence.          The    trial

court‟s conclusions of law are reviewed de novo.                     State v.

Barnhill, 166 N.C. App. 228, 230-231, 601 S.E.2d 215, 217

(2004).         The   appellate     court    must    itself       examine    the

record, Spano v. New York, 360 U.S. 315, 316, 3 L.Ed.2d

1265, 1267 (1959), and may rely on uncontroverted evidence

not addressed by findings of fact.              Arizona v. Fulminante,

499 U.S. 279, 286 n.2, 113 L.Ed.2d 303, 316 n.2 (1991).

    Argument:

    The     Fifth     and    Fourteenth     Amendments       to    the    United

States Constitution and Article I, §§19 and 24 of the North

Carolina        Constitution        guarantee       the     right        against

compulsory self-incrimination.               The trial court erred in

determining that Ms. Greene‟s post-arrest statements were

voluntary.        Due to the erroneous admission of statements

which     contributed        to     the     murder        convictions,       the

convictions must be reversed.              Fulminante, 499 U.S. at 295,

113 L.Ed.2d at 322.
                                      95

       Statements are involuntary when they result from law

enforcement    coercion       and   were     not    “the   product    of   an

essentially free and unconstrained choice by its maker.”

Culombe v. Connecticut, 367 U.S. 568, 602, 6 L.Ed.2d 1037,

1057 (1961).        See Colorado v. Connelly, 479 U.S. 157, 164,

93 L.Ed.2d 473, 482 (1986); State v. Cummings, 353 N.C.

281,   294,   543    S.E.2d    849,   857    (2001).       In   determining

whether statements were involuntary, a court must examine

“the totality of all the surrounding circumstances – both

the characteristics of the accused and the details of the

interrogation.”        Schneckloth v. Bustamonte, 412 U.S. 218,

226, 36 L.Ed.2d 854, 862 (1973).

       False statements about the evidence, the incommunicado

nature   of   the    interrogation,        the   defendant‟s    mental     and

physical condition, false statements by police, State v.

Gaines, 345 N.C. 647, 664, 483 S.E.2d 396, 406 (1997), the

custodial status of the defendant, State v. Hardy, 339 N.C.

207, 222, 451 S.E.2d 600, 608 (1994), police failure to

promptly   bring     the   defendant       before   a   judicial     officer,

Fikes v. Alabama, 352 U.S. 191, 196-197, 1 L.Ed.2d 246,

250-251 (1957), repeated denials of guilt, the duration of

the questioning, Ashcraft v. Tennessee, 322 U.S. 143, 153,

88 L.Ed. 1192, 1199 (1944), the writing of the statement by

the police, Blackburn v. Alabama, 361 U.S. 199, 207-208, 4
                                        96

L.Ed.2d 242, 248-249 (1960), and the “undeviating intent of

the     officers    to       extract         a    confession,”             Haynes    v.

Washington, 373 U.S. 503, 511 n.8, 10 L.Ed.2d 513, 519 n.8

(1963), are among the factors to consider.                            A court must

then determine “how the accused reacted to the external

facts,    and...the     legal    significance            of    how    he    reacted.”

Culombe, 367 U.S. at 604, 6 L.Ed.2d at 1059.

      Uncontroverted         evidence    established            that    Ms.     Greene

barely slept after 10 January and was taking Ativan.                             (Vol.

22Tp. 5440-5443)        Pfister and Ghent devised a subterfuge to

get her to the Sheriff‟s Department.                           (Vol. 20Tp. 4742)

Ms.   Greene     told   Pfister    that          she    was    unable      to   drive.

(Vol.    57Tp.   12846)        Pfister       testified         that    she      sounded

groggy or tired and repeated things like a person does when

called in the middle of the night.                     (Vol. 57Tp. 12856)           She

looked exhausted when family members assisted her to a car

and drove to the Sheriff‟s Department.                    (Vol. 56Tp. 12558)

      Pursuant     to    a    pre-arranged             plan,    Ms.     Greene      was

separated from her family as soon as they arrived.                                (Vol.

20Tp. 4758; Vol. 22Tp. 5250, 5256; Vol. 56Tp. 12564, 12573;

Vol. 57Tp. 12568, 12755, 12758)                        She was not thereafter

free to leave.          (Vol. 36Tp. 8278; Vol. 57Tp. 12751)                         Two

efforts to leave were unsuccessful and the third resulted
                                   97

in her formal arrest.         (Vol. 19Tp. 4612-4613, 4631; Vol.

35Tp. 7964-7965; Vol. 38Tp. 7976-7977, 8076)

      Ms. Greene was in the interview room for five and one-

half hours.       (Vol. 20Tp. 4760)        Pfister and Ghent asked

others how to get Ms. Greene to say something different.

(Vol.   57Tp.    12667)      She   repeatedly   denied     killing   her

children and was told that scientific evidence established

her guilt.      (Vol. 20Tp. 4813; Vol. 37Tp. 8510-8511, 8514)

Agent   Ghent    selected    the   statements   to   include   in    the

“confessions.” (Vol. 19Tp. 4620; Vol. 20Tp. 4795)              Counsel

was   denied    access.    (Vol.   22Tp.   5319,   5322;   Vol.   57Tp.

12725, 12763)       She was not taken to a magistrate until

after the statements were made.         (Vol. 19Tp. 4634)

      Ms. Greene demonstrated confusion about having been

arrested.       (Vol. 20Tp. 4813-4814; Vol. 21Tp. 5064, 5067)

She asked if she would be able to go to the funeral and

Ghent told her he would not prevent her from going.               (Vol.

20Tp. 4830; Vol. 21Tp. 5058-5059)           Pfister was unaware of

any murder suspect being able to attend a funeral.                (Vol.

20Tp. 4824, 4827)         At times, Ms. Greene held Ghent‟s hand

or laid her head against his.              (Vol. 20Tp. 4831, 4878,

4888; Vol. 21Tp. 4982, 5032)         To get an emotional response,

Ghent told her that her boyfriend was seeing another woman.

(Vol. 21Tp. 5036)     Immediately after she was taken from the
                                    98

interview     room,   she   repeatedly    denied     having    killed    her

children and said Pfister and Ghent twisted her words and

pressured     her.    (Vol.    22Tp.     5422)      After    booking,    Ms.

Greene was placed on suicide watch.              (Vol. 21Tp. 5124)

     Since it is a cardinal principle that “men are not to

be exploited for the information necessary to condemn them

before the law,” Culombe, 367 U.S. at 581, 6 L.Ed.2d at

1045,   the    inquiry      into   voluntariness      must     reflect   “a

careful scrutiny of all of the surrounding circumstances.”

Schneckloth, 412 U.S. at 226, 36 L.Ed.2d at 862.                 The trial

court, however, made no findings about Ms. Greene‟s state

of exhaustion, ingestion of Ativan, isolation from family,

the Department‟s practice of allowing attorney access, and

the Sheriff‟s failure to talk to Ms. Greene‟s father about

the true nature of her presence.            The court, in Finding of

Fact #29, ignored testimony that Ms. Greene was going to be

arrested no matter what she told the officers.                  (Rp. 184;

Vol. 20Tp. 4781; Vol. 22Tp. 5246) (Appendix)                 The court, in

Findings    of Fact #41 and 42,           ignored evidence that Ms.

Greene was running or walking fast down the                    hallway at

2:48. (Rp. 185; Vol. 22Tp. 5356, 5366, 5377-5378, 5394,

5421)   The court, in Finding of Fact #60, transposed pre-

arrest events into the post-arrest sequence. (Rp. 187; Vol.

19Tp; 4614; Vol. 20Tp. 4786)           The court, in Finding of Fact
                                      99

#61, ignored the coercive effects of false statements and

Ghent‟s assurance that he would not arrest her or prevent

her from going to the funeral (Vol. 20Tp. 4814).                 (Rp. 187)

       Whether Ms. Greene was in custody did not depend on

whether officers told her she would be arrested, as the

court stated in Conclusion of Law #3, but that Ms. Greene

was    not    prevented    from    going     anywhere   except      leaving.

(Vol. 20Tp. 4898)         Contrary to Conclusions of Law #6 and 7,

Ms.     Greene    was     not     promptly     Mirandized,     since     the

advisement should have occurred when she was first placed

in custody.       The use of subterfuge and denial of counsel

can, contrary to Conclusions of Law #4 and 9, render a

statement involuntary when considered within the totality

of    the    circumstances.        Ms.     Greene‟s   state   and   federal

constitutional rights were violated and the Miranda waiver

invalid.       The State was barred from using them for any

purpose in this case.             Mincey v. Arizona, 437 U.S. 385,

397-398, 57 L.Ed.2d 290, 303 (1978).

                                  CONCLUSION

       For the foregoing reasons and authorities, Lisa Greene

respectfully requests this Court to reverse her convictions

for a new trial.

       Respectfully submitted, this the 22nd day of December,

2009.
                            100



                        __________________________________
                        Barbara S. Blackman
                        Assistant Appellate Defender
                        North Carolina Bar No. 30264

                        Staples S. Hughes
                        Appellate Defender
                        Office of the Appellate Defender
                        123 W. Main Street, Suite 500
                        Durham, North Carolina 27701
                        (919) 560-3334
                        Barbara.S.Blackman@nccourts.org
                        Staples.S.Hughes@nccourts.org

                        ATTORNEYS FOR DEFENDANT-APPELLANT


                  CERTIFICATE OF SERVICE

     I hereby certify that the original Brief of Defendant-
Appellant was filed, pursuant to Rule 26, by deposit in the
United States mail, first-class and postage prepaid, duly
addressed to the Clerk of the North Carolina Court of
Appeals, Post Office Box 2779, Raleigh, North Carolina
28702-2779.

     I further certify that a copy of the foregoing Brief
was served on Anne M. Middleton and David J. Adinolfi,
Assistants Attorney General, Post Office Box 629, Raleigh,
North Carolina 27602-0629, by deposit in the United States
mail, first-class and postage prepaid.

    This the 22nd day of December, 2009.



                        __________________________________
                        Barbara S. Blackman
                        Assistant Appellate Defender

								
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